Chun (Migration)

Chun (Migration) [2022] AATA 1146 (20 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Chuangui Chun
REPRESENTATIVE:  Mr Tony Su Xiong (MARN: 0531691)
CASE NUMBER:  2116310
HOME AFFAIRS REFERENCE(S):          BCC2021/643682
MEMBER:Kate Millar
DATE:20 April 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

Statement made on 20 April 2022 at 2:58pm
CATCHWORDS
MIGRATION – cancellation – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – incorrect answers given in incoming passenger cards – conviction for corporate bribery in home country after visa granted not declared – discretion to cancel visa – non-compliance conceded – travelled to Australia to help adult children and young grandchild and feared that answering honestly would result in being refused entry – fear of harm from recipient of bribes and associates, or further charges and imprisonment – delay in departing and three voluntary returns – family members’ physical and/or mental health and applicant’s care for grandchild – best interests of child not the only primary consideration – emotional and financial hardship – mandatory legal consequences of cancellation – wife’s application for visa in own right in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 102, 107, 109(1), 166(1)(b), 172(3)(b), 359A, 375A, 501(6), (7), 506(3)(b)
Migration Regulations 1994 (Cth), rr 2.41, 3.01
CASES
CFE16 v Minister for Immigration and CFD16 v Minister for Immigration [2020] FCCA 1083
COT15 v MIBP (No 1) [2015] FCAFC 190
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Chun is a citizen of the People’s Republic of China who was granted a Subclass 143 (Contributory Parent) visa on 14 August 2013.
After the grant of his visa, and arriving in Australia on 23 December 2016, Mr Chun left Australia on four occasions. He most recently returned to Australia on 4 March 2018.
On his incoming passenger cards, Mr Chun did not declare he had a conviction for a criminal offence in China. Mr Chun was convicted of corporate bribery on 21 November 2014 by the Supreme People’s Court of the People’s Republic of China, and sentenced to a term of imprisonment of one year and six months.
Because he failed to disclose his criminal conviction, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs found that Mr Chun has breached the requirement in s 102 of the Migration Act 1958 (Cth) (the Act). This requires a non-citizen to fill in an incoming passenger card in such a way that no incorrect answers are given. After considering Mr Chun’s response to a notice of intention to cancel his visa, the delegate cancelled Mr Chun’s visa on 9 November 2021.
This is a review of the decision to cancel Mr Chun’s visa. In reviewing the decision, the issues are whether a ground to cancel Mr Chun’s visa exists, and if so whether his visa should be cancelled. If a ground to cancel his visa exists, factors prescribed by the Migration Regulations 1994 (the Regulations) must be taken into account, together with any other information provided by Mr Chun before deciding if his visa should be cancelled.
Mr Chun appeared before the Tribunal on 18 February 2022 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from his daughters Ms Jing Chun and Ms Hua Qiao and wife Ms Lanying Qiao, as well as a friend, Ms Xiaoxue Yang.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND
In China, Mr Chun operated a company selling medical equipment. After his conviction for bribing the medical director of a hospital to buy his equipment, the company was deregistered.
Mr Chun has a brother who lives in China, who has suffered brain damage as a result of a haemorrhage. His brother has two children and lives in a house given to him by Mr Chun. Mr China also has a younger sister with one child. Both his siblings live in Hubai.
Mr Chun and his wife Ms Lanying Qiao are the parents of twin daughters Ms Jing Chun and Ms Hua Qiao who are 38 years old. Ms Jing Chun and Ms Hua Qiao live in Australia.
Ms Jing Chun first came to Australia in April 2007 and is now an Australian citizen. She has a son Raymond who is now 10 years old. Ms Chun divorced Raymond’s father on

1 September 2014.
Ms Hua Qiao is an Australian permanent resident. She came to Australia as a student in 2007 and followed a skilled visa pathway to permanent residency. She currently holds a Subclass 155 (Resident Return) visa.
Mr Chun applied for a Subclass 143 visa which was granted on 14 August 2013. This visa was first cancelled on 22 November 2016 because he did not enter Australia by the initial entry date of 28 January 2014. This cancellation of his visa was revoked on 12 December 2016 as Mr Chun claimed he was unable to enter Australia by the initial entry date because his brother had a cerebral haemorrhage, and he needed to provide care for his brother. As acknowledged in his statutory declaration of 9 February 2022 he was in fact in prison from 30 October 2014 until 29 April 2016 and was not caring for his brother as he claimed. He claimed when seeking revocation of this cancellation that his brother had now recovered to an extent that a nurse could care for him so he could now travel to Australia.
Mr Chun travelled to Australia on 23 December 2016 and returned to China on 3 March 2017. He returned to Australia between 30 May 2017 and 10 July 2017 and 10 August and 9 November 2017. He most recently arrived in Australia on 4 March 2018 and has remained in Australia since.
Mr Chun’s wife Ms Lanying Qiao has also travelled between China and Australia on several occasions. She most recently arrived in Australia on 27 September 2021, having remained in China from 18 March until this date as she has been receiving treatment for a pneumonectomy in September 2019,[1] involving removal of her upper right lung. her discharge summary records a diagnosis of upper right pulmonary tuberculosis, thoracoscopic right upper pneumonectomy and hypertension. Treatment on discharge was full rest for two months, regular anti-tuberculosis treatment, avoid catching a cold, respiratory function training and rehabilitation and regular medical examinations.
[1] Translated medical and pathology reports
Ms Qiao applied for a Subclass 143 visa as a primary applicant on 29 December 2016. A letter acknowledging this application provided by Mr Chun lists him as a non-migrating family member. It is unclear whether he is now a secondary applicant on this visa application or is listed as a non-migrating family member.
Offending
The judgement of the Jianghan District People’s Court of Wuhan City, Hubei Province, records that between 2005 and 2012 Mr Chun paid bribes totalling CNY 1.2 million to Mr Bilun Zhang on six occasions.
The six occasions related to the sale of medical equipment by Mr Chun’s company to the hospital at which Mr Zhang was a director. It is recorded that Mr Chun and Mr Zhang agreed Mr Chun would keep the money for Mr Zhang, and Mr Zhang would withdraw it when he needed it or when he had retired. In October 2010 and July 2012, it is recorded Mr Zhang withdrew a total of CNY 250,000.
The sentencing remarks state Mr Chun voluntarily confessed on 29 December 2012 and provided details not yet in the possession of authorities about the offences. Mr Chun claims this confession was extracted from ill-treatment in the prison. He was first arrested on 29 December 2012 and was released on bail awaiting trial. He was again arrested and detained on 30 October 2014.
Mr Chun says he provided information to the Wuhan City Procuratorate about his bribery of Mr Bilun Zhang. As a result of some of his testimony, Mr Zhang was jailed for 11 years.
Mr Chun claims that as a result of being imprisoned, Mr Zhang arranged for his brother to have Mr Chun prosecuted and put in jail. Mr Chun claims he and his wife were arrested and he was forced to confess he had paid Mr Zhang CNY 200,000 in cash, whereas he had only promised to give him the money after Mr Zhang retired.
Mr Chun said after his release on bail his wife offered to bribe a prosecutor, and as a result his case failed when he appealed. Mr Chun says he does not consider himself guilty, the guilty one is corrupt society in China.
Mr Chun was imprisoned between 30 October 2014 and 29 April 2016. He states that he was beaten in prison and had to pay a bribe to have better sleeping conditions and meals and to be protected while he was in prison.
Mr Chun claims to fear reprisal from Mr Zhang or his family if he returns to China.
Mr Chun’s evidence
At the start of the hearing Mr Chun claimed that when he was in prison, he suffered brain damage and he may not be able to follow closely or remember correctly. While Mr Chun, through his representative, provided extensive submissions, these did not include any medical assessments or reports of brain damage or problems with his cognition. The Tribunal does not accept he has difficulty with his memory or was unable to follow the proceedings. He provided lengthy and detailed oral evidence at the hearing and did not shows signs of any difficulty in recall, with the exception of being vague about the amount of money he has in the bank in China as he said it was all his wife’s funds.
Mr Chun was advised that the Tribunal held concerns about his credibility because he acknowledged he deliberately provided false information on his passenger card, and also acknowledged he provided misleading information on a previous response to a notice of intention to cancel his visa to conceal his imprisonment. He was advised the Tribunal had concerns about whether he was truthful about his claimed fear of returning to China.
There are a great many often prolix and repetitive statements from a number of people in this matter. This tends to obscure rather than bring to light the main contentions put forward by Mr Chun about why his visa should not be cancelled. This was also evident at the hearing.
While the Tribunal found Mr Chun genuine about his desire to be with his family and assist his daughter, it found him vague and evasive about other aspects of his claims including his claims to fear harm if he returns to China. He sought to improve his claims in oral evidence at the hearing by embellishing previous claims.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if a visa holder has failed to comply with the requirement in s 102 of the Act to provide correct information on applications and passenger cards.
To exercise the power to cancel a visa under s 109 of the Act, the Minister must first issue a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance and specified information on how to respond to the particulars. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.
In this case, the Department received information that Mr Chun has been convicted of offences in China. This was an anonymous allegation and was the subject of a certificate issued under s 375A of the Act.
The certificate issued under s 375A of the Act was provided to Mr Chun before the hearing, and he was invited to comment on the validity of the certificate. In submissions dated 27 January 2022, Mr Chun’s representative acknowledged the certificate was valid, but sought particulars to be given under s 359A of the Act.
The information covered by the certificate was the anonymous allegation that Mr Chun had been convicted of an offence. It also covered details of officers of the Department including names, emails and telephone numbers.
The Department subsequently obtained more detailed information about the offence from other sources, and this information was given to Mr Chun and addressed in his responses to both the Department and to the Tribunal, as well as being contained in the decision of the delegate provided to the Tribunal. As a result, the Tribunal does not consider there are particulars in the anonymous allegation of a conviction that were required to be put to Mr Chun because further and better particulars had been provided by the Department and recorded in the decision of the delegate.
The Tribunal does not consider it is necessarily contrary to the public interest to release officer names, emails and telephone numbers, however as none of this information comprises information that would be the reason or part of the reason for affirming the decision under review, it does not fall to be determined.
In the present matter, on the basis of information that Mr Chun had been convicted of an offence that was not disclosed on his incoming passenger cards, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107.
The notice under s 107 specifies the required information and the notice issued under s 107 complies with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The first 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. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 102 of the Act in the providing of incorrect answers on his incoming passenger cards.
Mr Chen acknowledges that he answered incorrectly “no” to the question “do you have any criminal convictions?” when he entered Australia on 23 December 2016, 31 May 2017, 10 August 2017 and 4 March 2018 as specified in the notice issued under s 107 of the Act.
It follows that he has not filled out his incoming passenger card in such a way that no incorrect answers were given on four occasions, and a ground to cancel his visa under s 102 of the Act is established.
The Tribunal finds that there was non-compliance with s 102 of the Act 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.
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.[2] 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.
[2] MIAC v Khadgi (2010) 190 FCR 248
While Mr Chun provided many lengthy statutory declarations from himself and his family members, in summary his main contentions relate to his family members in Australia, and his claims to fear harm if he returns to China.
Mr Chun’s twin daughters are in Australia. His wife arrived from China relatively recently following surgery and treatment for a lung condition. Mr Chun, his wife Ms Lanying Qiao and their daughters and grandson live together in a house purchased by Mr Chun. At the time of the hearing, Mr Chun’s grandson Raymond was undergoing assessments for a potential diagnosis of autism. Mr Chun was given time after the hearing to provide the outcome of these assessments. Raymond has since been diagnosed with autism spectrum disorder by a paediatrician but was awaiting a second opinion assessment with a speech pathologist.[3]
[3] Report of Dr Yu-Ling Chen dated 25 February 2022
Ms Jing Chun is a single mother. Mr Chun assists in caring for her son Raymond. His other daughter Ms Hua Qiao has facial dystonia treated by regular injections of Botox, and reports problems with her alcohol consumption and a diagnosis of a mental illness.
Mr Chun claimed he had no choice but to conceal his criminal record so he could come to his daughter and grandson in Australia and take care of them.
A. Prescribed circumstances
The correct information
The correct information is that Mr Chun was convicted of corporate bribery in China on 21 November 2014 and sentenced to a term of imprisonment of 18 months.
The content of the genuine document (if any)
The content of genuine documents is not in issue in this matter, and this does not apply.
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
Mr Chun applied for the visa on 30 April 2012, and it was granted on 14 August 2013. At the time his visa was granted, he had not yet been charged with the offence or convicted of the offence. It follows the decision to grant the visa was not based on incorrect information.
When Mr Chun entered Australia on 23 December 2016, 31 May 2017, 10 August 2017 and 4 March 2018 he had been charged, convicted and served his sentence of imprisonment.
Section 166(1)(b) of the Act requires a person entering Australia to provide the information required by the Act or Regulations.
Section 506(3)(b) allows for questions to be asked on a passenger card about criminal convictions in Australia or a foreign country of the non-citizen. Regulation 3.01 requires a person to whom the regulation applies to complete a passenger card and provide it to an officer. Exceptions are provided in Schedule 9 to the Regulations, and Mr Chun is not exempt from this requirement.
Section 172 of the Act addresses immigration clearance. A person is refused immigration clearance if the person has his or her visa cancelled (s 172(3)(b)). The Minister may cancel a visa if the person does not pass the character test (s 501(2)). A person does not pass the character test if the Minister reasonably suspects the person has a substantial criminal record (s 501(6)), which in turn is defined as being sentenced to a term of imprisonment of 12 months or more (s 501(7)).
Mr Chun has been sentenced to a term of imprisonment of one and a half years, and his visa may have been cancelled if this had been declared on his passenger card. If this was the case, he would not have been immigration cleared.
Information about Mr Chun’s criminal history is relevant to the decision to provide immigration clearance, and the Tribunal finds the decision to immigration clear Mr Chun was based on incorrect information.
The circumstances in which the non-compliance occurred
Mr Chun claims he provided submissions about the circumstances in which his offending occurred, including that he had no choice but to offer a bribe when doing business in China, and he needed to do this for the survival of his business. He submits that he compromised by only offering to pay the bribe once Mr Zhang retired. He claims he was originally a witness and confessed to bribing Mr Zhang. He blames Mr Zhang for his conviction.
Mr Chun’s attempt to explain his criminal offending does not explain why he was untruthful on his passenger cards, which is the non-compliance in question.
At the time the non-compliance occurred Mr Chun had served his sentence in China. In submissions dated 22 November 2016, shortly before he entered Australia on 23 December 2016, he said his brother had been ill but had recovered a lot and could manage with the assistance of a nurse. Mr Chun acknowledged he falsely claimed to be caring for his brother when his visa was previously cancelled when he was in fact in prison. The circumstances in which the non-compliance occurred do include that his brother had suffered a cerebral haemorrhage, but not that he was caring for his brother.

In his statutory declaration dated 9 February 2022, Mr Chun claims he had no choice but to conceal his criminal record so he could come to his children in Australia and help them. He states that as a father and grandfather he was forced by life to conceal his criminal record.
Mr Chun said at the time he entered Australia on 23 December 2016, he had a call from his daughter as she and Raymond were ill and they were all suffering from a fever, and his grandson looked weak. His daughter asked him to save them. He saw the question on the passenger card and was hesitant and confused. He said he was concerned that if he answered honestly he would be refused entry to Australia and would be unable to help his daughters. He acknowledged his wife was travelling with him on this occasion, and on being asked if she could have provided care, said that because she worked as a manager at a hospital she was under pressure to return to work. On this occasion he was in Australia for approximately a year.
The circumstances of the non-compliance on this occasion were that his daughters and Raymond were temporarily unwell, and he wanted to be with them.
On 31 May 2017 he said he was again in fear that if he answered honestly, he would be refused entry and be unable to help his daughters and his grandson. On this occasion he was in Australia for three months.
He then also said he was in fear of revenge from Mr Zhang. He was called as a witness to explain the bribery of Mr Zhang.
In his response to the notice of intention to cancel his visa, Mr Chun said he fears ill-treatment by Mr Zhang or his associates if he returns to China, that he will have to face another false imprisonment on trumped up charges or confession obtained under torture, or that he will be murdered or disabled. He states his prison sentence of 18 months, rather than the six years expected, did not meet the expectations of Mr Zhang’s family.
Mr Chun claims he felt threated by Mr Zhang or his family on three occasions after he was released from prison.
At the time he was detained he said he was confident he had done nothing wrong as he had only promised to give Mr Zhang CNY 1.2 million. He said after Mr Zhang was sentenced in 2014 a friend of Mr Zhang visited Mr Zhang’s family and said aggressively that Mr Chun has sold out. Mr Zhang has a son working at the Court who said he will make sure Mr Chun goes to prison.
Mr Chun gave evidence that he had two close friends who said Mr Zhang’s wife had told them Mr Chun sold out her husband, and he needs to be careful or she will get him and he will be disabled.
Mr Chun said in May 2016, two days after he was released from prison, he had a call from Mr Zhang’s brother saying to be careful and that they would make him pay. Mr Chun did not take any more calls from his brother.
On being asked if the one call from Mr Zhang’s brother was the only direct contact Mr Chun had where he received threats, he said he received other calls, and he was so afraid he contacted the prosecutor and asked him to make them stop, but the prosecutor was relaxed and said this was common for families to go after a witness. It was put to Mr Chun this contact with the prosecutor was not mentioned in his statements or statutory declarations, and as it was a new claim the Tribunal may doubt the veracity of the claim. In response, Mr Chun said he was aware he had not said this before but did not provide any other explanation.
Mr Chun said he generally lived at the same address on the four occasions he returned to China but would live more randomly due to the threats. He was asked why he returned to China if he was concerned for his safety, and he said he had to sort out the company registration and his tax as otherwise the tax department would come after him frequently because there was a rule about a monthly tax claim.
He was also asked why, when he was released from prison on 29 April 2016 he waited until 23 December 2016 to come to Australia if he feared for his safety. Mr Chun said there were a lot of things to deal with in the company with the financial information and the tax department and he had to go through material with the tax office from 2013.
It was also put to Mr Chun that he was first charged in 2012 but was not imprisoned until 30 October 2014, and that if a person sought to harm him they could have done so in this period. Mr Chun said he was in contact with the prosecutor to tell him about threats, and the prosecutor was being helpful about that at the time. It was put to him he had not mentioned any threats in the period before he was imprisoned.
Mr Chun said that he confessed to promising to pay Mr Zhang 1.2 million, but that Mr Zhang had said he had been actually paid 200,000CNY. When Mr Chun denied actual payments the attitude to him changed. Mr Chun said he did not confess to payment which is why the prosecution made his circumstances difficult.
Mr Chun’s evidence that Mr Zhang was a person of influence in the criminal justice system is inconsistent with his evidence that Mr Zhang could not get his sentence reduced, and he was sentenced to 11 years in prison. Mr Chun said that since President Xi came into power in 2012 a reduction in sentence was no longer possible.
Mr Chun said during his imprisonment where he needed a health check-up Mr Zhang was his doctor. Mr Zhang would not have been given this position as a doctor in the prison unless he had influence. He said Mr Zhang threatened him and said he had already made instructions to his friends about sentencing Mr Chun and he’d better be careful. Mr Zhang is a powerful rich person, and he received more than 10 million in bribery and this shows his connection and power across different areas. The Tribunal considers this a recent fabrication and does not consider he would have failed to mention this in his extensive written statements and statutory declarations prepared with the assistance of a lawyer if this had occurred.
Mr Chun said he does not have any family remaining in Wuhan and that if he returns to his local area where his brother is living this will deliver him to Mr Zhang as Mr Zhang has influence in this area.
The Tribunal does not accept Mr Chun’s account of his fears in China. His claims are not supported by the documents he provided. His claimed fear is inconsistent with his return to China on four occasions and the time he spent unharmed in the community prior to his imprisonment. The Tribunal does not accept Mr Chun was genuinely fearful of Mr Zhang or his associates.
It finds that the circumstances in which the non-compliance occurred were that Mr Chun wanted to be in Australia with his daughters and grandson, and he knowingly did not disclose his criminal history as he was aware of the effect this would have on his ability to enter Australia.
The present circumstances of the visa holder
Mr Chun lives with his daughters Ms Jing Chun and Ms Hua Qiao and Jing Chun’s son Raymond. Ms Lanying Qiao arrived in Australia on 27 September 2021. They live in a house purchased by Mr Chun as an extended family unit. Mr Chun purchased a house for Jing Chun, Raymond and Hua Qiao to live in a favourable school zone for his grandson Raymond. As Raymond was experiencing difficulty, Mr Chun Raymond has now changed schools and Mr Chun pays $40,000 per annum for him to attend a private school.
He cites his present circumstances as including caring for his family members, and primarily for Raymond, and it is convenient to address each family member in turn.
Raymond
Mr Chun has a grandson Raymond who is now 10 years of age. Mr Chun relies on the care he provides to Raymond, in light of Raymond’s emerging needs and diagnosis of autism spectrum disorder. Mr Chun states he cooks Raymond’s meals, takes him to school, washes his clothes and does housework. He assists with any therapy required by Raymond. He takes him to any extra-curricular activities such as swimming, and he provides a father figure to Raymond.
Since Raymond’s birth he has been cared for in Australia and in China by his mother, Ms Qiao, Mr Chun and his paternal grandmother, and has lived in Australia since he was four years old. It is stated the periods spent in China and Australia and in living with his grandparents has unsettled Raymond, and made it difficult for him to fit in at school. Texts were provided showing issues at his current and previous school with his behaviour and his interpersonal relationships. His school report states he needs adult help to be productive, but that social development is the most important area for him.
Raymond’s parents are divorced, and the parties state Raymond’s father has returned to China and does not have contact with Raymond. A statement was provided from Raymond’s paternal grandmother who looked after Raymond for one year after he was born, and another six months at a later time. This statement supports Mr Chun’s continued care of Raymond in Australia.
Mr Chun does not speak English and Ms Chun liaises with the school and takes Raymond to see health professionals. She said she plans to take her parents to medical appointments in the future.
Mr Chun said he thinks Raymond has signs of PTSD. He claims Raymond calls out to him if he has nightmares and this shows his mother does not give him enough security due to his unsettled childhood. Mr Chun said Raymond is a child with trauma who needs his help to recover.
A letter of support was provided by Raymond’s occupational therapist who records Ms Chun’s account including the concerns about Mr Chun’s visa status, Raymond’s fear of his aunt, and that she will struggle without the support of her parents. As far as the report repeats Ms Chun’s concerns, it does not add to or bolster Ms Chun’s own statements and oral evidence. The occupational therapist recommends exercises on a fit ball, and photographs were provided of Mr Chun doing these exercises with Raymond. The Tribunal is satisfied Mr Chun assists with any therapy required by Raymond.
Ms Chun submits it will be difficult for her financially to pay for Raymond’s private school fees and his therapy without her father’s financial assistance.
Since Mr Chun has been in Australia from 2016, the Tribunal accepts he has taken a large role in the care of Raymond, including taking him to school and doing activities, cooking for him and assisting in the household. Mr Chun and his family all state Raymond has a particularly close relationship with Mr Chun. The family say that Raymond had difficulty moving between China and Australia with his schooling, and they have decided he should remain in Australia.
Ms Hua Qiao says she does not provide a great deal of care as Raymond does not like her as she has mental health and alcohol issues. Ms Lanying Qiao says her ability to provide care to Raymond is limited due to her medical condition as her exercise tolerance is lower due to the removal of part of her right lung.
The Tribunal found Mr Chun’s claims about his care of Raymond hyperbolic and overstated. While Raymond has emerging special needs and benefits from Mr Chun’s care, there is no information to show he has been subject to trauma or suffers from PTSD. While moving between China and Australia appears to have been difficult for Raymond, he has remained in the care of family members at all times.
The Tribunal finds Mr Chun’s current circumstances include that he provides care for his grandson Raymond who is awaiting confirmation of a diagnosis of autism spectrum disorder.
Ms Jing Chun
His daughter Ms Jing Chun studied finance and accounting and completed her master’s degree, Ms Chun works in the post office in Adelaide, with her hours being 6 am to 2 pm.
The care Mr Chun provides for Raymond allows Ms Jing Chun to work an early shift from

6 am to 2 pm as well as taking on additional shifts at Australia Post. Mr Chun states this is of benefit to Raymond as although he currently meets the costs of Raymond’s schooling, it will assist to meet the costs of his schooling in the future.
Ms Chun said different shifts are available, and she could request a different shift. For example she used to work from 6 pm to 11 pm, but finishes earlier so she can take Raymond to after school activities. She said if she worked a shift that started later to meet Raymond’s needs, she would feel really stressed. Ms Chun acknowledged day shifts are available, and as a permanent employee she could request a day shift. This is also reflected in the statements from family members provided by Mr Chun that if he leaves Australia Ms Chun will need to reduce her work hours to care for Raymond.
Ms Chun suffers from a right dorsal wrist ganglion resulting in her requesting light duties at work. She says she suffers pain and can’t lift over 7kg. The treatment recommended by her doctor is that when the ganglion is big enough it will be removed.
Ms Chun provided a letter of support from her employer, stating she is a permanent full-time employee who frequently works additional hours and weekends to help support her son. This states that if Mr Chun does not remain in Australia this may affect her ability to continue full-time employment as her current start time is 6 am.
The Tribunal finds Mr Chun’s care of Raymond allows Ms Jing Chun to work her preferred shift and overtime. It reduces her stress and her responsibility for her sister.
Ms Hua Qiao

100. Ms Hua Qiao also has qualifications in accounting and finance and works 4 am –10 am at Australia Post. She also works 4 pm – 8pm in the cleaning business purchased by her father for her and her sister. She completed tertiary education in Australia.
101. Ms Hua Qiao suffers from facial palsy and has a report from a psychiatrist stating she suffers complex PTSD and depression. She has problems with alcohol and malnutrition and states her conditions will worsen if her father is required to leave Australia.
102. Ms Qiao’s medical history states that as at 7 May 2021, she did not have a psychiatric diagnosis as yet. Mr Chun provided a report by Associate Professor Dennis Liu, Hua’s treating psychiatrist. Professor Liu states Hua was referred by her general practitioner on 10 June 2021, suffering a long history of anxiety with flashbacks and intrusive memories. Hua reports being sensitive of the opinions of others, and feels she is being judged. She reports getting so angry she damages property. She is afraid of going out and has constant feelings of anger and distrust towards others. Professor Lui reports Hua suffers from facial dystonia and required botulinum toxin injections every six months. She has a history of alcohol abuse and dependence, drinking over 15 standard drinks per day. Her family is reported to have a significant history of mental illness, with her grandmother suffering schizophrenia and her twin sister suffering anxiety. Dr Lui records Ms Qiao’s reports of experiencing bullying at school and developing significant developmental trauma from surgical complication on her face at two years of age. It is reported this resulted in facial nerve damage and oral facial muscle spasm. Ms Qiao is reported to have a master’s degree in engineering and is working for Australia Post and running an industrial cleaning business.
103. Dr Liu provides a diagnosis of complex PTSD and alcohol abuse, with her PTSD symptoms exacerbated by the stress caused by the cancellation of her father’s visa. Dr Lui commenced Hua on antidepressant medication and recommended psychotherapy. She stopped the medication because she said it caused vomiting but did help her sleep. She has not started any other medication. She saw Professor Lui once and was referred back to him by her GP on 14 February 2022.
104. After the hearing, a letter was provided from a dietician stating nutrition counselling was being provided due to poor food intake, and she had improved slightly with the encouragement of her family to improve alcohol and eating behaviour, however her nutrient intake is still low due to depression and anxiety.
105. Mr Chun provides assistance to Ms Qiao who is reassured by his presence. She states her drinking, her nutrition and her mental health will decline without his assistance. The Tribunal is satisfied Mr Chun’s present circumstances include providing reassurance to Ms Hau Qiao and being present in the household.
Ms Lanying Qiao
106. Ms Qiao most recently arrived in Australia on 21 September 2021. She lives with the family unit. Ms Qiao has an application for a Subclass 143 visa in her own right but states she will return to China if Mr Chun is required to leave Australia. She states this will be difficult for her as having had surgery to remove part of her lung she is fearful of travelling and contracting COVID. When she travelled to Australia, she used personal protective equipment.
107. Mr Chun present circumstances include that his wife recently joined the family in Australia after undergoing surgery to remove her upper right lung and rehabilitation in China.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
108. Subdivision C of Division 3 of Part 2 of the Act contains the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
109. Mr Chun has acknowledged answers provided on his incoming passenger card were incorrect in response to the notice of intention to cancel his visa, and there is no information before the Tribunal that he has subsequently breached his obligations under this subdivision.
Any other instances of non-compliance by the visa holder known to the Minister
110. The decision of the delegate refers to other entries where Mr Chun’s criminal conviction was not disclosed, and the misleading information provided in response to the previous notice of intention to cancel his visa.
The time that has elapsed since the non-compliance
111. The most recent non-compliance relied on by the delegate is the non-compliance on 4 March 2018, and it is now four years since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
112. There is no information before the Tribunal of any breaches of the law since the non-compliance.
Any contribution made by the holder to the community
113. Mr Chu states he contributes to the community by caring for his daughters and his grandson so that his daughters can work and pay tax. He has invested in a cleaning business for his daughter and purchased the house in which they live.
114. The Tribunal considers this factor contemplates weight being given to contribution to the community. Compliance with the obligation to pay tax is a personal legal obligation. While this is of benefit, the benefit is to his family unit rather than the community as a whole. Purchase of property and a business for his daughters is a matter of personal gain rather than the benefit of the community.
B. Other circumstances
Whether there would be consequential cancellations under s 140
115. There is no information to show that there will be consequential cancellations under s 140 of the Act.
Whether Australia has a relevant international agreement that would or may be breached as a result of the visa cancellation
116. Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions concerning children, the best interests of the child shall be the primary consideration.
117. This has been the subject of differing interpretations. Most recently in CFE16 v Minister and CFD16 v Minister,[4] (CFE16 & CFD16), Judge Riethmuller referred to Article 3 of the Convention and stated:
[4] [2020] FCCA 1083
… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[5]

[5] At [19]

118. Judge Riethmuller states that whether the Convention must be considered in circumstances where a ministerial instruction does not apply did not need to be addressed in the judgement. This was because the delegate proceeded on the basis that the Convention applied, and the Tribunal did not identify to the applicant that it intended to approach the case differently.
119. Judge Riethmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s best interests.[6] Judge Riethmuller states that:
[6] At [24]
… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[7]
[7] At [25]

120. Mr Chun was advised that in the circumstances of this case, the Tribunal may not regard the best interests of Raymond to be the paramount consideration when weighed against other factors the Tribunal is required to consider.
121. The Tribunal accepts Mr Chun provides care to Raymond who has a diagnosis of autism spectrum disorder from a paediatrician and is awaiting a second opinion to confirm this diagnosis. The Tribunal also accepts the family has decided it is best for Raymond to remain in Australia, and that if Mr Chun’s visa is cancelled, Raymond will not return to China with Mr Chun.
122. If Mr Chun’s visa is cancelled, Raymond will remain in Australia in the care of his mother. This is consistent with Article 9 of the Convention which requires State parties to ensure that a child is not separated from his or her parents against their will, other than in particular circumstances, and Article 18 which states parents or legal guardians have the primary responsibility for the upbringing and development of the child.
123. The Tribunal accepts it is in the best interests of Raymond that Mr Chun’s visa is not cancelled. It also accepts that it is in the best interests of Raymond to remain in Australia with his mother to settle into school and receive therapy.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
124. Mr Chun claims he was arrested and convicted following a promise to pay Mr Bilun Zhang an amount after his retirement. Mr Zhang was the Director of Wuhu Hospital, Mr Chun claims to fear harm because he claims as a result of his testimony, Mr Bilun Zhang was convicted of a crime. While Mr Zhang is still in prison, he has social connections and arranged for Mr Chun and his wife to be arrested and to obtain a conviction against Mr Chun.
125. Mr Chun claims he fears return to China due to retribution from Mr Zhang or his family. Mr Chun may test his eligibility for a protection visa if he fears to return to China.[8] The Tribunal has separately considered potential hardship that may result to Mr Chun if he returns to China below.
[8] COT15 v MIBP (No 1) [2015] FCAFC 190
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
126. If Mr Chun’s visa is cancelled, he will become an unlawful non-citizen unless he can apply for another visa. As his visa was cancelled, there are limited other visas for which he may apply (s 48 of the Act).
127. The types of vias for which Mr Chun can apply within Australia include protection visas (reg 2.12).
128. If Mr Chun does not apply for another visa and becomes an unlawful non-citizen, he is liable to be detained under s 198 of the Act and removed from Australia under s 197 of the Act.
129. If Mr Chun applies for other visas from China, he will be subject to Public Interest Criterion 4013. This requires a period of three years to have passed since his visa was cancelled unless there are compelling or compassionate circumstances affecting an Australian citizen, Australian resident or eligible New Zealand citizen that justify the grant of the visa.
130. If Mr Chun’s visa was cancelled Mr Chun may apply for a protection visa or may apply for another visa from China and test whether there are compelling or compassionate circumstances at that time.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
131. If Mr Chun’s visa is cancelled, the Tribunal accepts he will face significant emotional distress at being separated from his family and some financial hardship. If he returns to China, he will have the benefit of a property in which to live and some income. His wife states she will return to China with Mr Chun if his visa is cancelled. He has siblings and their children in China.
132. It was submitted that Mr Chun’s age acts in his favour, however there is no information before the Tribunal that he suffers any conditions which make him vulnerable, and the photographs of him with his grandson show an active and healthy man able to undertake physical activities.
133. Ms Jing Chun claims that if Mr Chun and Ms Lanying Qiao return to China they will have miserable old age as their daughters will be in Australia and there is no-one reliable in China who will help to look after her parents. She claims China does not have a robust social welfare and pension system. While the Tribunal accepts that being separated from their daughters and grandson will cause Mr Chun, and Ms Qiao if she returns with him, emotional distress, Mr Chun gave evidence that they have property in China and receive superannuation. While his pension is reduced Ms Qiao also receives superannuation. He also owns property in Australia which he can sell. Ms Qiao said she was living with her sister while she recuperated form her surgery, and Ms Qiao has family that can assist in her care. Mr Chun’s brother has an incapacity resulting form a brain injury, however, he also has a sister and other extended family members in China. Mr Chun presented as currently in robust health, providing photographs of him doing push ups with his grandson and other outdoor activities. Any need he may have to receive care does not appear to be imminent.
Claims to fear harm from Mr Zhang or his associates
134. Mr Chun claims to fear harm if he returned to China from Mr Zhang, or his family or associates. He gave evidence that when he was in jail he met up with Mr Zhang who was living comfortably in prison. He claims Mr Zhang told him that if he says the word, Mr Chun will end up in jail again. Mr Chun claims Mr Zhang has social connections.
135. Mr Chun said on three occasions after he left prison, he was told Mr Zhang’s family would not leave him alone.
136. He claims the first occasion was three days after he was released from prison, when Mr Zhang’s brother rang him and said “It’s not over yet. My brother has been in jail for 11 years and you’ve only got 18 months. How can you get off that easy? Just wait and see. You’d better watch out.”
137. The second time was when a mutual friend went to Mr Zhang’s place and spoke about what happened. Mr Chun claims Mr Zhang’s family “yelled on him”.   He reports his friend said that they were jealous that Mr Chun was making money, and it was Mr Zhang’s family who asked Mr Chun for money. Mr Chun said his friend was kicked out of the house and they told him to relay a message that he should watch out because they won’t let him go. Mr Chun claims his friend told him Mr Zhang’s family held a grudge because they asked someone with power to get Mr Zhang released and his sentence has not been reduced.
138. The third occasion was when his wife’s friend told her another friend had visited Mr Zhang’s house and his family told her they have a grudge against Mr Chun. He claims the family insisted this was not over and they would not let him go.
139. It was put to Mr Chun that these claims contain one threat conveyed directly over the phone and otherwise comprise hearsay about what others may have told his friend or his wife’s friend. Mr Chun was unharmed in the period between his release on bail in December 2012 and his imprisonment in October 2012. He returned to China on several occasions after his release from prison.
140. His claim that he had a confession extracted from him that he paid Mr Zhang money is inconsistent with the verdict of the court. His claims that Mr Zhang could get him arrested again because of his influence are inconsistent with Mr Zhang’s inability to get his sentence reduced.
141. Mr Chun returned to China on three occasions after he was released from prison and said this was to sort out his company, as he needed to make arrangements for the medical equipment and cancel the company registration, and deal with his tax. The evidence of his wife was that he lived in the same property on his return. He was asked why he returned to China if he was concerned about his safety and he said he needed to do the company deregistration as otherwise the tax department would come after hm.
142. The Tribunal does not accept Mr Chun fears harm or would be harmed by Mr Zhang or his family members if he returns to China.
Claims he will be treated unfavourably due to his criminal offending
143. At the hearing, Mr Chun claimed that as a result of his criminal offending he will be treated unfavourably if he returns to China as since President Xi came into power in 2012 there have been strict rules. In other evidence he said his superannuation payments were reduced as a result of his offending. The Tribunal accepts Mr Chun may face some stigma as a result of being convicted of corporate bribery. It is not satisfied that there is information before it to support a contention that this will result in substantial hardship to Mr Chun.
Claim relating to the COVID pandemic
144. Mr Chun claims that COVID is problematic and puts him at risk. The Tribunal is not satisfied that Mr Chun has particular risk factors that place him at greater risk than another person of his age and health.
Hardship to family members
145. Mr Chun’s wife Ms Lanying Qiao has also applied for a Subclass 143 visa, however her visa application has not been decided in light of the cancellation of Mr Chun’s visa. Ms Qiao arrived in Australia in September 2021 on a tourist visa. She said if his visa is cancelled it will be a difficult decision for her as given her health, she would be unable to care for Raymond. She states that given her recent poor health she would need her husband to help care for her and she will return to China with him.
146. Ms Qiao stated that due to her lung condition she is at higher risk if she returns to China with Mr Chun, and in particular at risk if she were to travel. Ms Qiao had her surgery and underwent rehabilitation in China, remaining apart from Mr Chun for a considerable period. She has travelled safely to Australia as a visitor, and while her risk is greater due to her lung condition, she is able to access treatment and care in China. The Tribunal accepts that travelling causes her concern and some hardship. It also accepts that being separated from her daughter and grandson will cause her distress if she chooses to return to China with Mr Chun.
147. Ms Jing Chun states that if her father is required to leave Australia, she will be unable to find someone to depend on as she cannot depend on her sister. She needs help at home due to the ganglion which causes her difficulty with garden maintenance and cleaning. She would not be able to work full time or do the additional shifts. She said the house would need to be sold and they would have to pay rent. She acknowledges she owns another house in Campbelltown purchased with the assistance of her parents and receives $500 per week in rent with a mortgage of $2,000 per month.
148. If her mother also leaves Australia, Ms Jing Chun will face hardship as she will be required to care for Raymond and support her twin sister. The sisters say they are inseparable, and while Hua Qiao could return to China with her parents, it is more likely she will remain in Australia. Ms Jing Chun’s ex-mother-in-law provided a statement that she could not travel to Australia to assist with the care of Raymond due to her own health, and she and her husband are unable to provide financial support.
149. The Tribunal finds that cancelling Mr Chun’s visa will cause Ms Jing Chun financial stress and anxiety as well as increase the care she is required to provide for Raymond and the support she provides her sister.
150. Ms Hua Qiao states if her father returns to China she will remain in Australia as she is better integrated in Australia than in China. She said her drinking and her weight loss have worsened since his visa was cancelled. To her credit she has able to maintain both her employment at Australia Post and the cleaning business.
151. The Tribunal accepts Ms Hua Qiao suffers facial dystonia, depression and PTSD. She has a drinking problem and finds it difficult to maintain her weight. She said these conditions are currently worsened due to the cancellation of Mr Chun’s visa and the stress this causes. Ms Qiao claims to fear she will hospitalised for mental illness if her father is not in Australia to support her, and provide information about relatives who suffer form mental illness. Mr Chun also claims that she will find it difficult to keep he job during hayfever season if her father is not here to help he with herbal medicines. If Mr Chun’s visa remains cancelled, Ms Qiao’s conditions are likely to be exacerbated and this will place more strain on both Ms Qiao and her sister.
152. The Tribunal accepts that cancelling Mr Chun’s visa will cause emotional hardship to Raymond who is close to his grandfather and result in a reduction in the level of care he currently obtains. This has also been considered in examining Raymond’s best interests above.
Financial hardship
153. Various claims have been made about financial hardship if Mr Chun’s visa is cancelled. It was suggested the house in which the family live will need to be sold. Ms Jing Chun owns another house in Campbelltown that is currently rented out but which also has a mortgage.
154. Mr Chun has been able to fund the purchase of property in Australia and pay substantial private school fees for Raymond and still hold property in China. His wife also owns a property in China in which they live when they are in China. He has gifted a house to his brother. Both Mr Chun and Ms Lanying Qiao receive superannuation payments from China. Mr Chun said following his conviction his superannuation payments decreased from 4,000 CNY per month to 1800 CNY per months. Ms Lanying Qiao receives 8,000 CNY per months. As recently as September 2021, $50,000 was transferred to Ms Hua Qiao, stated to be for Ms Lanying Qiao’s living expenses in Australia. Mr Chun acknowledged Ms Qiao’s property in China can be rented out at 12,000 CNY per month, and they own another property as a result of a government relocation program.
155. While the Tribunal accepts that it will cause the family unit financial hardship if Mr Chun is required to leave Australia as Ms Jing Chun will be unable to work her current hours, and it may result in the sale of the property in which they currently live, it does not accept that this is to the degree stated by the family which has significant assets in China and Australia.
CONCLUSION
156. Mr Chun’s actions have undermined the integrity of the visa system, and this weighs heavily in favour of cancelling his visa.   Mr Chun had a choice of whether to be truthful on four incoming passenger cards and decided that his need to see and support his daughters and grandson outweighed being truthful on his incoming passenger cards.
157. He has now been in Australia for over four years and supports his daughters and grandson emotionally, financially and with practical care in circumstances where his grandson has an emerging diagnosis of autism spectrum disorder and his daughter suffers depression, PTSD and problems with her alcohol consumption and nutritional intake. If he leaves Australia this will cause them hardship and emotional distress.
158. While Mr Chun claims to fear hardship from retribution by Mr Zhang or his family or associates if he returns to China, the Tribunal does not accept his claims.
159. The Tribunal has carefully weighed the circumstances but does not consider these outweigh his deliberate dishonesty in entering Australia.
160. 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
161. The Tribunal affirms the decision to cancel the applicant’s Subclass 143 (Contributory Parent) visa.
Kate Millar
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.

102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and

(b)no incorrect answers are given.

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 1146

20 April 2022

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