Azzaz (Migration)
[2019] AATA 3995
•17 June 2019
Azzaz (Migration) [2019] AATA 3995 (17 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Rana Azzaz
CASE NUMBER: 1832952
DIBP REFERENCE(S): BCC2017/3454613
MEMBER:Linda Holub
DATE:17 June 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Statement made on 17 June 2019 at 10:32am
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – did not declare child to Department – child conceived with former husband – non-compliance – step-children – best interest of children – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
Abdi (Migration) [2018] AATA 2627
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 Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant failed to notify the Department of a significant change in her circumstances. 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 21 May 2019 to give evidence and present arguments. At hearing the Tribunal acknowledged that the applicant agreed to a shortened notification period for the hearing. This occurred after it became apparent that the invitation letter was inadvertently not dispatched by the Tribunal in a timely manner. The applicant was offered alternative hearing dates in the week of 17 June 2019 but declined those and decided to take up the invitation to the hearing on 21 May 2019. The Tribunal apologised for this and confirmed that the applicant wished to proceed with the hearing.
The Tribunal also received oral evidence from the review applicant’s husband.
The applicant was represented in relation to the review by her registered migration agent who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Evidence before the Department
10)The applicant provided the Department with:
a.A copy of her National Police Certificate dated 17 September 2018.
b.Supporting statements in the form of Statutory Declarations and statements from her step-children.
c.Copies of her qualifications and certificates, taxation returns and other documents related to her business.
d.Copies of her marriage certificate to her current husband, her Divorce Order from her former husband, her daughter’s birth certificate, the front pages of her step-children’s passports, confirmation of their enrolment at school and her husband’s taxation return.
Evidence before the Tribunal
11)The applicant provided the Tribunal with a copy of the Department’s Notification of Cancellation under s.109 of the Migration Act 1958 and prior to hearing with a written submission and additional evidence, including copies of:
a.ANZ joint bank account statements for the period 14 December 2018 to 15 February 2019;
b.water utility invoices dated 29 October 2018, 15 January 2019 and 11 April 2019;
c.Other Tribunal decisions including, Abdi (Migration) [2018] AATA 2627 (27 July 2018), Latumeten (Migration) [2018] AATA 2691 (6 July 2018); Nguyen (Migration) [2018] AATA 4245 (17 September 2018); and Singh (Migration) [2018] AATA 2473 (23 April 2018).
Was there non-compliance as described in the s.107 notice?
12)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 104 in the following respects: - changes in circumstances to be notified.
13)The Department’s Record of Decision dated 5 November 2018 outlines that the visa holder submitted a combined application for a Partner visa (subclass 820 and 801) in October 2012. In it, she was listed as the main applicant, and her husband, as her sponsor. The applicant responded to questions 23 and 38 of Part A of the Form 47SP that she did not have any children. She also declared that she would inform the Department of any changes to her personal circumstances.
14)On 9 October 2014, the visa holder supplied information to the Department in relation to the permanent stage processing of her Partner visa application. In the section requiring the applicant to list all of her immediate family members (including parents, children, and brothers and sisters), the visa holder did not declare any immediate family members.
15)On 11 May 2015, the delegate decided to refuse the visa holder’s application for a Partner visa as the delegate was unable to conclude that the applicant and her sponsor reside together on a permanent basis, shared daily responsibilities and routines or that they had drawn emotional support from each other since the grant of her Partner (subclass 820) visa.
16)The applicant subsequently sought review of the Department’s decision at the Tribunal. She provided additional written evidence in support of her application and also provided information about her sponsor’s children from his previous relationship. The Tribunal remitted the decision.
17)On 21 June 2018, the Department received an application for a Child (subclass 802) from the applicant’s former husband visa in respect of the applicant’s daughter. A supporting letter stated that the child lived with her mother on a full-time basis until she was two years old; that the mother had not informed the father of her pregnancy and they were divorced in July 2012 and that the child’s birth certificate indicates the child was born in October 2012 and that the mother’s name is that of the applicant.
18)The Department concluded that the applicant had not complied with section 104 of the Migration Act, as the applicant’s circumstances had changed so that an answer to a question on the application form had changed and the applicant had failed to inform the Department of the change in her circumstances. As the applicant had failed to notify the Department of changes in her circumstances prior to the grant of her substantive visa, it appears the visa holder did not comply with section 104 of the Migration Act her Partner (Permanent) (subclass 801) visa is liable for cancellation consideration under section 109 of the Migration Act 1958.
19)The Department issued a Notice of Intention to Consider Cancellation on 23 August 2018. The applicant responded to the Department on 6 and 21 September 2018: It was submitted that:
a.The applicant was under the impression that notifying the New South Wales Births, Deaths and Marriages of the birth of her child in February 2015 meant automatic notification to the Department of Home Affairs.
b.The fact that the applicant fell pregnant by her former husband from whom she was separated prior to her relationship with her sponsor, and later gave birth to a child, would not disqualify her from being granted a Partner (subclass 820) or a Partner (subclass 801) visa).
c.The applicant and her sponsor have remained together as a married couple and been together for nearly six years, that she is the carer of her step-children, and that she is in touch with her own daughter who lives with the applicant’s former husband.
d.The applicant has been residing in Australia for close to eight years, that she has no other instances of non-compliance and has not been in trouble with the law, and has been running her own business as an early childhood educator.
e.The non-compliance occurred six years ago when the applicant gave birth to her daughter.
f.She was fearful for her newborn’s safety and therefore decided not to disclose the birth or her pregnancy to her former husband who was in a relationship with another woman. She kept the child a secret from her former husband until her daughter was over two years of age.
g.She was concerned about losing custody of the child as the law in Lebanon provides custody of a child to the father if the mother remarries and therefore she did not disclose the child to her former husband.
h.Her sponsor was aware of her pregnancy through her former partner and supported her in raising her daughter.
20)The Department having taken account of the applicant’s response concluded that the circumstances of this case in which the applicant failed to notify the Department of a significant change in her circumstances regarding the birth of a child from her previous relationship was in order to obtain a favourable migration outcome through sponsorship from her sponsoring partner.
Evidence at hearing
21)At hearing the applicant stated that she first came to Australia on a Student (TU-572) visa. She first did a business course (Certificate IV) at Oxford College and then decided to move to another college closer to her house. She came to Australia with her former husband who was a dependent on her visa. The applicant stated that after that her marriage broke down in 2011 she left and moved to a different address. At the end of 2011 they decided to divorce. She spoke with her parents who encouraged her to try to continue their relationship. She stated that her former husband told them that their marriage difficulties were her fault because she wouldn’t have a child. They tried to get back together in January 2012 and were together for about two weeks after which he left. She said the real reason for the marriage breakdown was because he went back to his girlfriend. Not long after she discovered she was pregnant. She decided not to tell her former husband or her parents because they would make her get back together with him.
22)The applicant stated that her current husband/sponsor is her cousin and they were always close and he was supportive of her after the problems with her former husband and their relationship started to change. In about April 2012 they agreed to continue with her pregnancy despite her first husband being the father and they got married in September 2012. She stated that she decided not to tell her first husband about the baby. She said that her daughter was too little and in her opinion needed her full-time care. She stated that she also did not want her first husband to disrupt her life and she did not know what his wife would do with the baby. She decided that until the daughter did not need her for full-time care she would not tell her ex-husband. She stated that she took responsibility to give birth and also to provide her daughter a safe environment.
23)The applicant stated that she and her first husband now share custody of their daughter. He picks her up from school from Thursday afternoon and she stays with him until Sunday afternoon. She stated that the arrangement is not formalised but something they have agreed between themselves and has been in place for around a year and a half from the time their daughter started school.
24)It is not in dispute the applicant did not advise the Department of the change in her circumstances following the birth of her daughter, whose father was her former husband. The Tribunal is prepared to accept that initially she was concerned about losing custody of her daughter. The Tribunal was unconvinced by the applicant’s evidence that she was under the impression that if she registered her child’s birth with NSW Births, Deaths and Marriages, the Department would automatically be notified. Regardless, she did not notify the Department of a significant change in her circumstances.
25)For these reasons, the Tribunal finds that there was non-compliance with s.104 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
26)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).
27)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. Briefly, they are:
the correct information.
§In the written submission provided to the Tribunal the applicant stated that her daughter was born on the same day but after she submitted her application for the Partner subclass 820 visa. She maintains that the information provided at the time of lodgement was correct because her child was not born at that time. It further states that she was under the impression that because she had notified the Australian government, NSW Birth, Deaths and Marriages of the birth of her child in February 2015, she assumed that the Department of Home Affairs was automatically notified. The submission states that her failure to notify the Department was an oversight.
§At hearing, when asked why she did not advise the Department of the change in her circumstances, she stated that she did not know she was required to. She stated that the child was a result of her previous relationship and not related to her relationship with her sponsor. She stated it was a very stressful time and she made lots of mistakes without knowing.
§The Tribunal notes that applicant has given different reasons as to why she did not notify the Department. She has variously provided evidence that her daughter was born after she lodged her Partner visa application, she thought if she registered the birth of her child with NSW Births, Deaths and Marriages the Department would automatically be notified, that she was of the view that the birth of her daughter who was fathered by her former husband was not a change in circumstances in relation to her new sponsor and husband and that it was a very stressful time for her.
§The Tribunal is concerned that the applicant has provided a raft of different explanations and while they are not mutually exclusive, the Tribunal find her failure of providing a coherent explanation, suggests she is concealing the real reason. This factor weighs in favour of cancellation.
the content of the genuine document (if any).
§This is not a relevant matter in this particular case.
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 submission of 19 May 2019 states that the fact that she fell pregnant with her former husband from whom she had separated prior to commencing her relationship with her sponsor and later gave birth to his child would not have disqualified her from being granted a subclass 820 or 801 visa. It refers to the sponsor’s support of the applicant at that time and his assistance in raising the child. It also refers to her role as a step-mother to her sponsor’s children. It also states that their relationship has strengthened and remained in a committed relationship for over six years.
§The applicant stated at hearing that she was of the view that when she declared the baby by registering the child’s birth then other agencies would know. The Tribunal asked her on what basis she had such an expectation. She stated that this is what happens in Lebanon. The Tribunal questioned whether the premise that the applicant dealt with the authorities in Australia was on the basis of the law and arrangements in a different country. She confirmed this was the case and stated that’s why she did not obtain advice.
§The Tribunal put to the applicant that had she advised the Department of the existence of the child she conceived with her former husband, the Department may have raised issues about genuineness about the relationship with her sponsor. She stated that she received a phone call from the Department during the assessment of her application but because she was driving she couldn’t answer the questions. She was asked if she wanted another call and she responded that she did not
§The applicant stated that she and her sponsor are cousins and so they have known each other since birth. They helped each other and then the relationship changed and they decided to share life together. Having decided that, they decided they may as well live together.
§While the Tribunal acknowledges the fact the applicant gave birth to a child who was fathered by her previous husband may not precluded the applicant being granted a Partner visa (following a review of the Department’s refusal decision by a differently constituted Tribunal), the fact of the matter is that the information was relevant to a decision on the visa grant and by withholding the information, the applicant compromised the integrity of Australia’s visa system.
§This matter weighs in favour of cancellation.
the circumstances in which the non-compliance occurred.
§The applicant’s written submission refers to the applicant’s genuine fear of the consequences of revealing the birth of her daughter and that once her daughter did not require her care for her basic survival needs, the applicant revealed the existence of her daughter to her former husband. It states that it is reasonable to assume that the applicant was not only focussed on the care of her child but also maintaining a healthy relationship with her former husband due to considering the best interests of her daughter.
§The applicant stated that she feared revealing your daughter’s existence. She stated that she and her sponsor talked about it. She stated that the she did not consider that the requirement to advise the Department about a change in circumstances related to her current husband because the child was not his. She stated that before she was refused the permanent visa she had already applied for birth certificate and she thought that all government agencies would know about the birth of her daughter.
§The Tribunal is prepared to accept that the applicant was concerned that she may lose custody of her daughter because she had separated from her former husband and the child’s father. However, this does not explain why she did not advise the Department of the change in her circumstances when her daughter was born. Furthermore, as previously stated, the Tribunal finds that her failure of providing a coherent explanation, suggests she is concealing the real reason. This factor weighs in favour of cancellation
§This matter weighs in favour of cancellation.
the present circumstances of the visa holder.
§The applicant stated that her step-children spend from Sunday afternoon until and Friday and after school they go their mother’s. The applicant stated that she helps them with their homework and assignments. They catch the bus to school. The Tribunal heard evidence that the applicant’s two step-children and her daughter are very close. Her step-children provided statements of support. The applicant also talked of her extended family and when family events are held that all three children attend.
§The Tribunal is prepared to accept that the applicant is responsibilities for her step-children.
§This factor weighs against the visa cancellation.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act.
any other instances of non-compliance by the visa holder known to the Minister.
§The applicant’s submission refers to remorse and that she has actively followed her obligations under the Act.
§There is nothing before the Tribunal to indicate any concerns in respect of the applicant’s subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act or to indicate any other instances of non-compliance by the applicant.
§The applicant stated that she is very regretful that she did not advise the Department of the birth of her daughter.
§The Tribunal is prepared to accept that the applicant is regretful that she did not advise the Department of the change in her circumstances. Insofar as the applicant’s subsequent behaviour and the fact that there have no further instances of non-compliance is concerned, the Tribunal expects visa holders to meet their obligations and to comply with their visa requirements. As such, this does no weigh strongly against the cancellation.
the time that has elapsed since the non-compliance.
§The applicant stated that it has been seven years since the non-compliance and she was granted the Partner (subclass 801) visa in June 2016. They thought everything was fine and have continued with their lives. She stated that her former husband wanted to take their daughter overseas which is when they encountered a problem in relation to her visa. The applicant stated that she signed consent to apply for a visa for her daughter.
§The Tribunal is satisfied that a considerable length of time has passed since the non-compliance occurred and that the applicant has established herself in Australia both within the family unit and in her business.
§This factor weighs against cancellation.
any breaches of the law since the non-compliance and the seriousness of those breaches.
§The Tribunal has had regard to a National Police certificate issued by the Australian Federal Police on 17 September 2018 and is satisfied that she has breached the law since the non-compliance.
§The Tribunal expects that visa holders do not break the law. Therefore this does not weigh strongly against cancellation.
any contribution made by the holder to the community.
§The applicant submitted in writing that she has integrated extremely well in society and referred to various certificates she had been awarded including a Certificate III in Early Childhood Education and Care. Reference was also made to her business and that she keeps herself up to date on various training courses to ensure she runs her business efficiently. It also states that the fact that she cares for both stepchildren demonstrates the important impact she has on these children, particularly in their foundational years.
§The applicant stated that she had no time to be involved in the community given her work and family commitments.
§At hearing the Tribunal noted that the applicant had provided copies of various certificates she had been awarded and asked whether they were related to the licensing requirement of her business. She responded she likes to ensure that she is always updated. She stated that the Road Safety course was not required but she did because she considered it important. The Tribunal stated that it would not give significant weight to these courses because they related to the operation of her business and not because she was seeking to make a contribution to the community.
§Therefore this factor does not weigh strongly against cancellation.
28)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.
29)The Tribunal explained to the applicant that although not required of the Tribunal it would also consider matters covered in the Departmental PAM3 guidelines:
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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.
§The applicant stated that she hopes it’s not going to happen. She said it would destroy the family. She stated that it would too hard for her two stepchildren to go overseas with her because they are teenagers. The Tribunal put it to her that their biological mother is in Australia and she has shared custody of the step-children with their father. She responded that if she has to go to Lebanon, her husband will have to leave the children. The Tribunal asked the applicant if she and her husband had discussed what they would do in the event the Tribunal affirms the decision. She responded they have not because it would be so calamitous for them.
§The Tribunal is of the view that if there any consequences such as the applicant becoming unlawful as a result of the cancellation, she should be actively managing them. Therefore this factor does not weigh strongly against cancellation.
whether there would be consequential cancellations under s.140.
§The Tribunal explained to the applicant that it is not aware there would be any consequential cancellations. She concurred with the Tribunal’s view.
§This factor does not weigh strongly against cancellation.
whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
§No information is before the Tribunal that any international obligations would be breached by the cancellation of the applicant’s visa. This factor does not weigh strongly against cancellation
§The Tribunal has addressed issues in regard to family unity and the best interests of the child elsewhere in this decision.
any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
§The applicant stated that she does everything for her family and that it would be hard for her husband without her support because he goes to work. She stated she takes care of everything in the household, including the payment of bills.
§The witness also gave evidence that the applicant is the mainstay of the family. He stated that she is everything to him and the children as well. He stated that if the cancellation proceeds, he can’t even imagine how he will cope. He stated that it will be very difficult for him. When asked if they have discussed what will happen if cancellation proceeds, he stated that they do not have the heart to talk about it. He stated they haven’t done anything to deserve this. The witness corroborated the applicant’s explanation about the custody arrangements for the three children. The witness stated that the applicant attends everything. He stated that essentially he goes to work and spends some time with the children in the evenings, but the applicant speaks to them about their needs, she helps and ensures they have done their homework and the applicant discusses issues related to his two children with their biological mother. He stated that his life will be broken if the applicant has to leave Australia.
§The witness stated that he wants his wife to be with him. He stated that they are willing to provide whatever is needed and documents that would help. He stated that the important thing is that they stay together.
§The witness stated that the applicant’s daughter is not his but that she is like a daughter to him. The witness stated that the applicant had lots of problems with her ex-husband. He stated that every time they fought, the parents would interfere and try to reconcile them. When she first made the application he was not sure about the proper terminology he should be using when she made the application, the daughter was not born yet at that time. He stated that he had no idea of how to fill out the form and even today whenever there is an application, filling out the form she does it.
§The witness stated that the applicant had no contact with her first husband. When she decided to tell her first husband about his daughter, she phoned her family in Lebanon, who in turn, called his family to tell him about the daughter.
§The Tribunal accepts that the unity of the family would be disrupted and that the sponsor and his children would suffer some degree of hardship. The Tribunal has had regard to the fact that the sponsor and his step-children are Australian citizens.
§This factor weighs against cancellation.
Oral submissions made by the applicant’s migration agent
30)The applicant’s migration agent referred to previous Tribunal decisions on similar issues and referred to the fact that the Tribunal decision ultimately boils down, weighing of interests. He stated the integrity of visa system is highly important, the factors were there and in Abdi (Migration) [2018] AATA 2627 (27 July 2018) the Presiding Member took account of the applicant’s circumstances and the length of time that had elapsed. In that decision, the Presiding Member took the view that the interests of the Australian children weighed in their favour and the Cancellation was set aside.
31)The applicant’s migration agent stated that the other cases which were provided to the Tribunal were somewhat different, but nevertheless, the consequences of not complying must be considered in the context of circumstances. He stated that in this case it was an issue as to whether the original decision maker, properly weighed the factors. The need for punishment of cancellation were more important than not cancelling. He submits that was wrong. He stated that the applicant and her partner have been in a long term relationship and although the family is mixed, they make it work. He stated that the children are at a very impressionable age and that it would be disastrous for the family if broken up. He stated that while the applicant can be blamed for not informing the Department, to punish with cancellation is extreme. He stated that most Australians would not think it right. He stated that the couple have remained together which suggests grant of partner visa was the correct one. He requested the Tribunal exercise its discretion and allow the applicant to remain in Australia.
Overall findings
32)The Tribunal has carefully considered the evidence before it and weighed up all the relevant factors in this case. The Tribunal acknowledges that the applicant has acknowledged that she did not inform the Department about a change in her circumstances. The information about the birth of her child may have led the Tribunal on review to make a different decision when it remitted the decision. The Tribunal is cognisant of the fact that it the information may not have precluded the Tribunal from remitting the decision, however, the Tribunal’s consideration should have been on the basis of the full facts of the applicant’s circumstances. The Tribunal is of the view that the applicant’s action compromised the integrity of Australia’s visa system.
33)However, the Tribunal accepts that cancellation would cause considerable hardship for her spouse and step-children and her daughter. The Tribunal has considered the applicant’s circumstances and her involvement in the lives of her daughter and her two step-children. The best interest of the children is that the family unit is intact and that they reside in Australia. These circumstances weigh strongly in favour of not cancelling the visa. The Tribunal has also taken into consideration the length of time that has elapsed and significant impact on her husband and the family and in particular the Australian step-children. These factors weigh against cancellation.
34)Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
35)The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Linda Holub
Member
ATTACHMENT – Migration Act 1958 (extracts)
Interpretation
(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.
Interpretation
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).
Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
Notice 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.
Decision 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.
Cancellation 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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