Baggaley (Migration)

Baggaley (Migration) [2024] AATA 3839 (25 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Natalie Kathleen Baggaley
REPRESENTATIVES:  Mr Tanguy Mwilanbwe; Mr Declan McCarthy
CASE NUMBER:  2407529
HOME AFFAIRS REFERENCE(S):          BCC2022/1107107
MEMBER:James Lambie
DATE:25 September 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 25 September 2024 at 5:29pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased – new relationship – applicant failed to notify the Department – academic achievement – contribution to the community – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, rr 1.09, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438
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 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with section 104 of the act because prior to the grant of her Partner (Permanent) visa on 7 February 2022, she had failed to notify the Department in writing that her relationship status had changed and that she was up until the time her Partner (Permanent) visa was granted. 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 7 June 2024 and 20 August 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representatives attended the hearing on 20 August 2024.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Background
On 5 December 2019, the applicant lodged a Combined Partner (subclass 820/subclass 801) visa application with a Mr Robinson as the sponsor. Both parties declared that they were in a de facto relationship with each other.
On 7 February 2022, the Applicant was granted a Partner (Permanent) visa. The Department subsequently received information that the applicant and her sponsor work no longer in an exclusive, genuine and continuing de facto relationship from ‘at least’ 29 December 2021 up until the time of the grant of the Partner (Permanent) visa. Specifically, it was alleged that, during this period, she was in an intimate relationship with another man.
On 13 March 2024, pursuant to section 107 of the Act the Department send the applicant a notice of intention to consider cancellation under section 109 of the Migration Act (‘the NOICC’). The notice was addressed to the applicant at the email address she had provided to the Department. She was informed that she must provide her response within 14 calendar days after she was taken to have received the notice. She did not respond to the notice.
By its written decision dated 28 March 2024, the Department cancelled the applicant’s visa.
On 8 April 2024, the applicant applied to the Tribunal for a review of the Department’s decision.
Evidence
The evidence before the Tribunal includes, but is not limited to:
·Department file BCC2022/1107107, which includes the applicant’s visa application, correspondence between offices of the Department and the applicant and other persons, the NOICC, and the delegate’s decision;
·the application for review form; all will;
·the applicant’s written submissions, dated 2 April 2024, including
oscreenshots from her Outlook email account;
oher university enrolment, dated 1 April 2024;
oa protection order issued by the Brisbane Magistrates Court, naming a Mr Zaina as the respondent and the applicant as the aggrieved, dated 7 September 2023;
oa written narrative titled “Continuing proof of relationship 2021” incorporating annotated photographs and screenshots of text message exchanges between the applicant and her sponsor, and of bank transfers between them;
·her representatives’ written submissions, dated 13 August 2024;
·the applicant statutory declaration, dated 13 August 2024;
·a written submission from Joshua Wilson-Adams, undated;
·a character reference by Rebecca Elsley, dated 9 August 2024;
·a bundle of screenshots of communications between the applicant and Mr Zaina, various dates in 2022 and 2023;
·screenshots of communications between the applicant and some of her high profile customers;
·a bundle of photographs relating to the applicant professional activities;
·a pay advice, dated 4 August 2024;
·a letter of reference from Mr Daniel van Hoof-Harkin, My FootDr (Aust) Ltd, dated 17 July 2024;
·the applicant’s financial activity statement, QUT, 9 August 2021 to 9 August 2024;
·the applicant’s academic record and the current enrolment;
·letter of reference from Prof Deborah Turner, School of clinical sciences, QUT, dated 13 August 2024;
·the applicant’s statutory declaration with 17 exhibits, dated 27 August 2024;
·the applicant’s bank statements, NAB xx277, 16 December 2021 to 15 June 2022;
·the applicant appraisal form, Royal Brisbane and Women’s Hospital;
·personal and professional reference from Ms Nicole Leslie, the senior clinical podiatrist, Royal Brisbane and Women’s Hospital, dated 27 August 2024;
·letter of support from Brodie Robinson, dated 27 August 2024.
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 case, there is a question as to whether the notice issued by the Minister’s delegate complied with s 107.
The Tribunal has reviewed and examined the NOICC by reference to the requirements of s 107. The Tribunal is satisfied that the notice included particulars of the possible non-compliance, that the Minister had reached the relevant state of mind, namely that the delegate considered that the applicant had not complied with section 104 of the Act, provided the details required by s 107(1)(b), and specified the appropriate time in which to respond.
The applicant had submitted that the reason that she failed to respond to the notice was that her email account had been hacked, likely by Mr Zaina. The security report from her Outlook account indicated that unsuccessful attempts had been made to access her Internet account, chiefly from Russia. However, there is no indication that her email account had been successfully accessed and, accordingly the Tribunal is satisfied, in fact and in law that the notice was duly communicated to her.
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 104 in the following respects:
·Prior to the grant of her partner (permanent) visa on 7 February 2022, she failed to notify the Department in writing that her relationship status had changed and she was no longer in a de facto relationship with her sponsor, to the exclusion of all others, from at least 29 September 2021 up until the time her partner (permanent) visa was granted; and
·a change of circumstances had occurred that made her answer of “de facto” to the question regarding her relationship status incorrect in the new circumstances; and
·a change of circumstances had occurred that made her answer of “yes” to the question, “Do the applicant and the sponsor have a mutual commitment to a shared life as a married couple, or as de facto partners to the exclusion of all others?” Incorrect in the new circumstances.
The applicant provided the following account in her statutory declaration of 13 August 2024:
My sponsor throughout my application process was Mr Brodie James Robinson. All information provided to the Department of Home Affairs (‘Department’) throughout my application process, and as it relates to my relationship with Mr Robinson, was true and correct.
Towards the end of 2021, my relationship with Mr Robinson began to be tested as I had commenced living in Brisbane for my studies. I needed to be close to campus for my studies and work, whilst Mr Robinson had just opened a business in Maryborough. As such, it became very difficult for my partner and I to see each other. Our relationship was affected by this but we remained a couple.
We only decided to formally end our relationship in or around March 2022, after the granting of my permanent partner visa.
Mr Jake Zaina
I acknowledge that some time after having moved to Brisbane, I met and began talking to Mr Jake Zaina. Initially my relationship with Mr Zaina was just as friends, however, this eventuated into a brief romantic relationship.
The start of my relationship with Mr Zaina was also affected by the fact that he would often confront me with ultimatums; either I continue to date him or he would commit suicide.
There were multiple occasions in which Mr Zaina would send me videos of himself slitting his wrists and request me to comply with my request or else he would commit suicide.
As a result, I complied with Mr Zaina and continued to see him for around a few months.
Mr Zaina would also voluntarily transfer me money without me asking for such. The descriptions Mr Zaina would provide on these transactions were often misleading. For example, Mr Zaina occasionally describe the transaction as ‘rent’ despite him not living with me at any point.
At a certain point, after seeking professional help, I ceased my involvement with Mr Zaina. He continued to send me self-harm videos/photos as attempt to coerce me and would contact my friends about the matter.
On 7 September 2023, I acquired a protection order against Mr Zaina which, inter alia, provided that Mr Zaina must not contact or communicate with me.
Mr Robinson was completely aware of my involvement with Mr Zaina during the period in which Mr Robinson and I were still together.
Despite the circumstances concerning how my ‘relationship’ with Mr Zaina commenced and continued, I understand it acknowledge that I made a conscious decision to enter into the relationship. I am extremely regretful of this.
Provision of material to Department
In or around November 2021, I provided materials to the Department which demonstrated the continuation and genuineness of my relationship with Mr Robinson. Nothing within the materials and information I provided to the department was false.
As I believe Mr Robinson and I was still in a genuine relationship all the way up until in or around March 2022, I did not believe there was any change of circumstances to notify the Department about.
I realise and acknowledge that I ought to have satisfied the Department of my ‘relationship’ with Mr Zaina.
I now acknowledge and understand that because of my decision to enter into the relationship with Mr Zaina, despite his later emotional abuse etc, I ceased to be in a relationship with Mr Robinson as ‘to the exclusion of all others’. As such, despite my belief that Mr Robinson and I continued as a committed couple, I understand that under the law, our relationship ceased to be de facto and genuine.
In view of this statement, which was provided after the close of the hearing, the Tribunal considers that the applicant has acknowledged and accepted that there was non-compliance as identified in the s 107 notice. In coming to this view, The Tribunal would observe that the instances of the claimed suicide threats on the part of Mr Zaina cannot be reliably identified as having occurred during the currency of the non-compliance. Specified in the s 107 notice, and the Tribunal cannot accept, in view of the evidence before it, that the commencement of the relationship was suborned or procured by threats of suicide on the part of Mr Zaina.
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?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     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 circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     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 time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
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.
The correct information
The correct information is, prior to the grant of the applicant’s Partner (Permanent) visa on 7 February 2022, she failed to notify the Department in writing that she and her sponsor no longer had a mutual commitment to a shared life to the exclusion of all others, and that their relationship was no longer continuing, from about September 2021. This change of circumstances rendered her description of her relationship status as ‘de facto’ incorrect in the new circumstances. Similarly, the change of circumstances made her affirmative answer to the question as to whether she and sponsor were de facto partners to the exclusion of all others incorrect in the new circumstances.
The Tribunal considers that, because she failed to inform the Department of the change of circumstances, she was granted the Partner (Permanent) visa to which she may not have been entitled, because the delegate was unable to assess whether she met the definition of de facto partner under s 5CB of the Ac and Reg 1.09A.
This is a consideration to which the Tribunal attaches significant weight.
The content of the genuine document (if any)
There is no document to be assessed for the purposes of this application.
Whether the decision to grant the visa was based, wholly or partly, on incorrect information
The granting of a Partner (Permanent) visa is entirely contingent on the existence of a relationship within the definition of, in this case, de facto partner. For the reasons given in paragraph 26 above, the Tribunal considers that the decision to grant the visa was based on the incorrect information.
The circumstance in which the non-compliance occurred
The applicant’s account of the circumstances in which the non-compliance occurred is recited at paragraph 19 above. She has accepted that, prior to the grant of the Partner (Permanent) visa, she was no longer in a de facto relationship to the exclusion of all others. The Tribunal has given consideration to her submission that she did not turn her mind to the prescriptive requirements in the Migration Act and regulations as to the exclusivity required of a de facto relationship. It does not consider that this subjective claim is sufficient, in circumstances where the Department has required the parties to the application to provide extensive evidence of their relationship, to displace the legal requirements that the applicant had previously claimed to understand. As noted in paragraph 20 above, the Tribunal has been unable to accept that the applicant was coerced or suborned into the relationship with Mr Zaina, or that it was entered or maintained in some way against her will.
The evidence the applicant has presented as to the genuineness of the relationship with Mr Robinson as at November 2021 presents, as she has tacitly acknowledged, only one aspect of the relationship and does not address the admitted fact that it was non-exclusive at this time.
The Tribunal has not concluded, on the evidence before it, that the applicant’s conduct was deliberately fraudulent which, had that element been present, would have been a matter to which very great weight would have been given. However, the Tribunal considers that the applicant was, at least, conscious that the disclosure of the relationship with Mr Zaina affect her immigration status and that she was anxious that that not occur.
Accordingly, the Tribunal can allow no weight in her favour as to the circumstances in which the non-compliance occurred, and some substantial weight must be accorded to this consideration in favour of cancellation.
The present circumstances of the visa holder
The applicant provided appropriate and high quality evidence relating to the studies she has undertaken while in Australia, at which she has excelled. I have given particular weight to the letter from Prof Deborah Turner, the discipline leader for podiatry at QUT. Prof Turner stated:
… Natalie is well respected amongst her peers in her student cohort and with staff in the podiatry program that have had the opportunity to work with her over the past 3.5 years.
In the program she has predominantly achieved grade of credit or above and she has a current GPA of over five, which is a testament of her dedication and commitment to her studies and podiatry. Her strong academic achievements must be considered in light of her need to balance her studies while she has needed to work to financially support herself given her residing away from her family who live in the UK. Natalie is now in her final semester of studies in the podiatry program (eight weeks remaining of her final semester) and should her current visa be revoked before completion of her studies, this would be extremely detrimental to her future career.
I have liaised with academic colleagues (Dr Veronica Newton — previous head of the Podiatry Program) based at Salford University in the UK, which would be the closest university to Natalie’s family. I have established that Natalie would be required to complete a further 12 months of study at Salford to be eligible for registration with the healthcare professions Council (HCP C). Due to the need for Natalie to meet the compliance regulations for enrolment into the program (criminal record checks, working with children checks and serology) she would not be able to make the next enrolment point into the podiatry program at Salford (September 2024). She would therefore not be able to enrol into the program until September 2025 with the course completion of July 2026.

I have also considered, and given weight to the assessment of her placement at RBWH and the letter of support from Mr Hoof-Harkin, her employer. I accept that the applicant is a young woman of good professional skills, well-regarded in her profession, and considered an asset in the allied health industry.
I also note the submission that there are shortages of podiatrists in Australia. I have, however, also noted that there are shortages of podiatrists in the United Kingdom, to which country the applicant would likely need to return should her visa be cancelled. While she enjoys excellent prospects in Australia, it would appear that she would have no shortage of opportunities should she return to United Kingdom, albeit that she may need to take additional time to finalise her professional qualifications.
In addition, it was submitted on the applicant’s behalf that:
The applicant would face significant hardship were heavyset cancelled. In addition to financial hardship … The applicant would likely face substantial emotional and mental hardship.
The applicant’s parents, who reside in the UK and who have been paying for the applicant university course would also be impacted financially with the applicant unable to complete her Australian university course.
The applicant has made no professional connections in the UK and would be severely disadvantaged in the UK podiatry profession.
The applicant gives a degree of weight to these submissions, tempered by the fact that they are not sufficiently supported by objective evidence.
The Tribunal gives a meaningful degree of weight to the applicant’s personal circumstances as presented to it.
The subsequent behaviour of the visa-holder concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act
It was accepted in the submissions of the applicant’s representatives that the applicant failed to notify the Department of her change in circumstances, and that this consideration “likely ways slightly in favour of cancellation.” The Tribunal accords this consideration some weight in favour of cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
There is no information to suggest that there have been any breaches of the law since the non-compliance identified in the notice. The Tribunal gives this consideration a little weight against cancellation
The time that has elapsed since the non-compliance
The non-compliance occurred from about 29 September 2021, when the applicant failed to notify the Department in writing of the change of circumstances. The delegate considered that the period of two and half years was brief and therefore should be given weight in favour of cancelling visa. It was submitted on the applicant’s behalf to the Tribunal that this analysis was arbitrary and, given that a period of almost 3 years had elapsed by the time the submissions were made, the period was significant. The representative cited Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438:
It would seem to me that the purpose of making this a matter that the tribunal should take into account is because if, for instance, the non-compliance was minor and the time between the non-compliance and the review was lengthy, a decision maker might feel that the applicant’s otherwise blameless continuation in the country under the terms of the visa would militate against its cancellation.
It was further submitted that, the applicant having been resident in Australia sent in or around August 2018, the three years since the non-compliance was a substantial period compared to her overall period of residence. Further:
it is submitted that the applicants lawful and blameless continuation within Australia in the three years since the minor (and largely insignificant) non-compliance militate against the visa cancellation.
The Tribunal does not accept this submission. It does not accept that the non-compliance was minor or insignificant because it went to the heart of the criteria for the grant of the visa. The most significant period of the lapse of time was the delay in the detection of the non-compliance, which arose from the applicant’s failure to make the appropriate disclosure. Further, the Tribunal allowed the matter, at the applicant’s request, to be adjourned from June 2024 until the end of August 2024 in order for the applicant to complete her professional placement and first semester examinations. While the Tribunal accepts that the applicant’s continuation in this country has been otherwise blameless, it can accord no weight either way to the question of cancellation.
Any breaches of the law since the non-compliance
The Tribunal accepts that the applicant has been a law-abiding resident. While this, of course, is expected of a visa holder and would be accorded significant weight were the applicant’s history otherwise, the Tribunal is prepared to allow this consideration a degree of weight against cancellation.
Any contribution made by the holder to the community
The applicant has presented evidence of the voluntary activities she has undertaken through her university studies, including the provision of services in an indigenous aged care home, in paediatric screening, and through volunteering at university events. While some of those activities have been placement in the course of furthering her qualifications, the Tribunal gives them weight as evidence of the contribution she has made to the community. It was submitted on her behalf that, should she complete her qualifications in Australia she will contribute to the profession of podiatry and assist in filling the shortage of practitioners.
The applicant’s statutory declaration of 27 August 2024 exhibits evidence of her personal involvement of hosting an open day at QUT targeted to homeless people. She has also provided evidence that she volunteered additional hours in respect of her placement at an indigenous care home. She also identified a number of events, including workshops and field trips at which she has volunteered her time and expertise between February 2022 and July 2024.
The Tribunal gives this evidence substantial weight.
In addition, the Departmental PAM 3 guidelines are that the following matters should be given consideration:
·whether there would be consequential cancellations under s 140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·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.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
There is no suggestion that there would be any consequential cancellations as a result of the cancellation of the applicant visa, nor of the presence of any children whose interests would be affected, nor of any non-fulminant or family unity obligations being invoked.
The Tribunal notes that, if the visa were to be cancelled, the applicant would become an unlawful noncitizen and could be liable for detention under s 189 and removal under s 198 of the Act if she does not resolve her immigration status or voluntarily depart. The cancellation may also place a limitation under section 48 of the Act, limiting her options to apply for further feeders in Australia. She may also be affected by Public Interest Criterion 4013, limiting the grant of a further temporary visa for a specified period. These are matters to which the Tribunal gives some weight against cancellation.
The Tribunal has taken into account the applicant’s claims and submissions in relation to the hardship that may be caused to her by cancellation and accords them some weight.
The Tribunal has considered all of the evidence, submissions, and considerations above. Against cancellation it has given the greatest weight to the applicant’s circumstances (including the hardship that may result from cancellation) and her contribution to the community. However, weighing the matter as a whole, it gives very substantial weight to the fact that the non-compliance identified went to the central criterion for eligibility for the visa that the subject of this application. This is a matter going to the integrity of the Partner visa program, and the Tribunal is satisfied that the considerations in favour of cancellation outweigh those advanced to the contrary.
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 801 (Spouse) visa.
James Lambie
Senior 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.
104Changes 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.
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 3839

25 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice