Du (Migration)

Du (Migration) [2023] AATA 4228 (4 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hongsheng Du
REPRESENTATIVE:  Ms Catherine Farrell, Clothier Anderson Immigration Lawyers
CASE NUMBER:  2301231
HOME AFFAIRS REFERENCE(S):          BCC2021/1371789
MEMBER:Michael Ison
DATE:4 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 04 December 2023 at 6:25pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – bogus documents – divorce certificate – access to divorce certificates in China – critical details missing from primary decision – power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 360
Migration Regulations 1994, Schedule 2, cl 820.211; Schedule 8
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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
Background
The applicant in this review is Mr Hongsheng Du, who is a 56-year-old Chinese national. Mr Du is referred to as the applicant in these reasons for decision. The applicant’s immigration history in Australia may be summarised as follows.
The applicant first arrived in Australia on 9 September 2009 as the holder of a Visitor (Class TR) (Subclass 676) visa that was valid to 9 December 2009. The applicant did not depart Australia after the expiry of that visa.
On 15 November 2013 the applicant applied for an onshore Combined Partner (Class UK) (Subclass 820) and (Class BS) (Subclass 801) visa, which was sponsored by his second ex-wife Ms Lina Sun.
The applicant and his ex-sponsor Ms Sun claim to have first met in person on 29 December 2009 in Box Hill. The applicant claims that Ms Sun and he committed to a shared life together to the exclusion of all others from 8 November 2012 and they married in Box Hill on 29 December 2012.
In the applicant’s Partner visa application signed and dated 14 November 2013, the applicant declared that he had been married once previously, to Ms Xiufang Hao or Gao from 20 October 1996 to 15 October 2010. The applicant has one child from his marriage to Ms Hao or Gao, Mr Xiaofeng Du who at the time of this decision is 24 years of age.
The application for the Partner visas submitted on 15 November 2013 was refused by a delegate of the Minister on 17 July 2014.
The applicant lodged his application for review with the Tribunal on 12 August 2014.
The applicant’s application was heard by the Tribunal, differently constituted, in Tribunal review number 1413850. On 17 September 2015 the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa back to the Minister for reconsideration, with a direction that the applicant met cl 820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the grant of a Subclass 820 Partner (Temporary) visa.
On 18 March 2016 the applicant was granted both a Subclass 820 Partner (Provisional) visa and a Subclass 801 Partner (Permanent) visa. The applicant claims he and Ms Sun, his second wife separated in or around September 2016 and divorced on 27 November 2017.
On 18 August 2018 the applicant married Ms Jing Zhou, his third wife, in Bulleen in Victoria.
On 2 October 2019 Ms Zhou applied for an offshore Combined Partner (Class UF) (Subclass 309) visa and a (Class BC) (Subclass 100) visa as the spouse of the applicant. At the time of that application Ms Zhou claimed to be married to the applicant. Miss Yuchi Pan was also included in the Partner visa application as a member of the family unit of Ms Zhou. Ms Zhou’s Partner visa application has not been finally determined by the Department yet.
On 16 March 2021 the applicant applied for a Five-Year Resident Return (Class BB) (Subclass 155) visa, which was granted on the same day.
On 31 January 2023 the applicant’s Subclass 155 visa was cancelled by a delegate of the Minister under s 109 of the Act. It is the cancellation of the applicant’s Subclass 155 visa that is the subject of this review.
On 30 March 2023 the applicant was granted a Bridging E (Subclass 050) visa, which the applicant continues to hold at the time of this decision. The applicant’s current Bridging E visa has conditions 8207 (No Study) and 8506 (Notify New Address) from Schedule 8 of the Regulations attached.
Ms Zhou, the applicant’s wife, has a long history of travel to and from Australia dating back to her first visit to Australia on a Visitor visa on 20 February 2010. Ms Zhou most recently arrived in Australia on 20 April 2023.
On 5 September 2023 Ms Zhou was granted a Visitor (Class FA) (Subclass 600) visa, which is valid to 5 March 2024. That visa has conditions 8101 (no work) and 8201 (study and training limitation) from Schedule 8 to the Regulations attached.
The primary decision of a delegate of the Minister
The applicant provided the Tribunal with a copy of the primary decision.
The delegate cancelled the visa on the basis that the applicant provided incorrect information about his divorce from his first wife contrary to s 101(b) of the Act and provided a divorce certificate and a certified translation of that certificate that were found to be bogus documents contrary to s 103 of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the applicant’s visa should be cancelled.
Applicant’s representative and submissions received on behalf of the applicant
The applicant was initially represented in relation to the review by Ms Karyn Anderson of Clothier Anderson Immigration Lawyers. On 8 November 2023 the Tribunal received a completed appointment of representative form appointing Ms Catherine Farrell of Clothier Anderson Immigration Lawyers as the applicant’s representative. Ms Farrell is referred to in these reasons as the applicant’s representative or the representative.
On 3 November 2023 the Tribunal received a submission on behalf of the applicant which attached documents including:
·a twenty-six-page written statement from the representative dated 3 November 2023;
·a marriage certificate of the applicant and Ms Zhou, issued by Registry of Births, Deaths and Marriages, Victoria, date of registration 24 September 2018, certifying they were married on 18 August 2018 in Bulleen, Victoria, Australia;
·a biometric data page of the Chinese passport of Ms Zhou, date of issue: 20 October 2023 and date of expiry: 19 October 2033;
·a Grant of visa letter for Ms Zhou’s Visitor (Subclass 600) visa, from the Department dated 5 September 2023;
·a Visa Entitlement Verification Online system (known as VEVO) check of the visa details for the applicant dated 1 August 2023;
·an eight-page statutory declaration declared by the applicant on 2 November 2023;
·a three-page statutory declaration declared by the applicant’s son Mr Xiaofeng Du declared on 2 November 2023;
·a ten-page report about the applicant from Dr Michael G King, Clinical Psychologist and Mr Slobodan Bendjo, Registered Psychologist dated 16 November 2022;
·Decision made by the Tribunal, differently constituted, in the applicant’s related Tribunal review number 1413850 dated 17 September 2015;
·Confirmation of pre-liver transplant assessment scheduled for the applicant on 21 November 2023, from the Liver Transplant Unit of the Austin Hospital;
·a letter in relation to the applicant’s medications and treatment, from Dr William Wei-Che Chung, Gastroenterologist and Hepatologist of the Hepatitis Clinic from Austin Health dated 11 October 2023;
·an abdomen ultrasound report from Dr Barnabas Bako dated 9 November 2022;
·a medical report of Biochemistry (Serum) for the applicant, from Dr P. Stewart, Pathologist, date performed 6 November 2022;
·a referral request to I-MET Radiology Network, from the applicant’s general practitioner Dr Bruce Wu of Preston Market Medical Centre in relation to a triple phase computerised tomography (CT) scan of the applicant’s abdomen;
·a referral letter from Dr Wu dated 2 October 2022, outlining the applicant’s presenting problems, past history, allergies/adverse reactions and current medications;
·the applicant’s GP Mental Health Treatment Plan from Dr Wu dated 2 October 2022;
·a support letter from Dr Wu dated 29 September 2022, outlining the applicant has various medical conditions including recurrent hepatic carcinoma with three operations, type II Diabetes, Hepatitis C and shingles with the applicant’s wife being required to provide care for him due to the applicant’s medical conditions;
·an appointment letter to the applicant, for a DSA consultation (pre-procedural) on 2 May 2022 from Austin Health;
·an appointment letter to the applicant, for CT microwave ablation (CT MWA) on 4 May 2022 from Austin Health;
·pathology tests required by Dr Junyan Zhao from Austin Health dated 3 February 2022;
·an appointment letter for a CT MWA on 21 March 2022 from Austin Health;
·a one-page joint statement from the applicant and Ms Zhou dated 5 March 2022;
·an appointment letter to the applicant for DSA Chemoembolization on 22 February 2022, from Austin Health dated 11 February 2022;
·a prescription issued to the applicant, from Austin Health dated 14 February 2022;
·a two-page written statement from Ms Zhou in relation to the applicant’s medical condition dated 30 March 2021;
·a medical report of Magnetic Resonance Imaging (MRI) of the applicant’s liver from Dr Mark Rassie dated 12 November 2020;
·a letter in relation to the applicant’s medical conditions, from Dr Penny Hey of Liver Mass Clinic, from Austin Health dated 2 December 2020, outlining the applicant’s medical issues, current medications and plan;
·a letter in relation to the applicant’s medical conditions from Dr Thomas Worland, Registrar of Liver Mass Clinic, from Austin Health dated 23 December 2020; and
·merged file of all contents from the Department file identified as file BCC2021/1371789 in relation to this review.
On 17 November 2023 the Tribunal received an email from the applicant’s representative providing copies of correspondence sent to the applicant’s wife, Ms Zhou on 9 and 10 November 2023 inviting Ms Zhou to comment on why her application for a Subclass 309 Partner visa should not be refused given the information before the Department that she is not sponsored by an Australian citizen, Australian permanent resident or eligible New Zealand citizen because of the cancellation of the applicant’s Subclass 155 visa on 31 January 2023. Ms Zhou was given 28 days to respond to each of the letters.
Tribunal decision
As a result of the information received on 3 November 2023, the Tribunal has decided that it was not necessary to invite the applicant to appear before it to give evidence and present arguments. The Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it as provided for in s 360(2)(b) of the Act.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the NOICC comply with the requirements in s 107?
In the present case, there is a question as to whether the Notice of Intention to Consider Cancellation of a visa (NOICC) issued by the Minister’s delegate complied with s 107 of the Act. A delegate of the Minister sent the applicant the NOICC on 27 October 2022.
Having reviewed the NOICC and considered the requirements of s 107 of the Act, the Tribunal finds:
·     the delegate reached the relevant state of mind that there was non-compliance with the Act;
·     the NOICC contains sufficient particulars of the non-compliance; and
·     the NOICC complies with the statutory requirements of s 107 of the Act.
Was there non-compliance as described in the s 107 notice?
Section 99 of the Act, states that any information a non-citizen gives or provides, causes to be given or provided, or 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 sections 100, 101(b), 102(b), 104 and 105 to be an answer to a question in the non-citizen's application for the visa, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
The issue before the Tribunal is whether there was non-compliance in the way described in the NOICC, that 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 ss 101(b) and 103 of the Act.
Section 101 Visa applications to be correct
Section 101 of the Act provides:
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
Section 103 Bogus documents not to be given
Section 103 of the Act provides:
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
The NOICC alleged that the applicant provided incorrect information on page 14 of his application for Subclass 820 and 801 Partner visas lodged on 15 November 2013. This incorrect information was the response that his marriage to his first wife Ms Hao or Gao ended in divorce on 15 October 2010. The delegate found the applicant’s marriage to Ms Hao or Gao did not end in divorce until 9 January 2017 when the applicant physically presented to the relevant authorities with Ms Hao or Gao in China to sign the necessary paperwork.
The NOICC alleged that the applicant submitted a bogus document when he lodged a certified copy of a Divorce Certificate Booklet issued on 15 October 2010 by Marriage Registration Special Seal of the Huanggu District Civil Administration Bureau in Shenywang City. The applicant also provided a National Accreditation Authority for Translators and Interpreters (NAATI) accredited translation stating the divorce between the applicant and his first wife Ms Hao or Gao was sealed by the relevant authority on 15 October 2010.
The delegate found this document was a bogus document based on information provided by the Civil Affairs Bureau of Huanggu District, Sheyang City in China who informed a Departmental officer at an overseas post of the Department by telephone that a reissued divorce certificate must contain the original divorce date, the reference number would begin with the letters ‘BL’ and the two parties seeking divorce must be physically present at the time of lodging the divorce agreement in front of a registration officer.
The applicant did not respond to the NOICC and claims he was advised not to by his then migration agent, who was not the applicant’s representative for this review.
The applicant submitted to the Tribunal that he didn’t breach the Act as alleged by the Department because he did not provide incorrect information or a bogus document in relation to his divorce from his first wife. The applicant claims he forgot to initially mention his marriage to his first wife in his application and then he corrected this by providing a re-issued notarised divorce certificate the English translation of which stated the applicant and Ms Hao or Gao signed the divorce agreement on 9 January 2017 whilst a different translation stated the date of divorce was 9 January 2012 which the Tribunal accepts was an error.
The applicant subsequently stated to the Department that the applicant and his first wife Ms Hao or Gao applied to have their divorce certificate re-issued on 9 January 2017, when the applicant was in China, because the original of his 2010 divorce certificate had been lost by one of the many migration agents the applicant has used and he obtained the updated certificate in January 2017 as part of the documents required to sponsor his son for a Subclass 101 Child visa. The application for a Subclass 101 visa for the applicant’s son was lodged in November 2017.
The applicant stated at the time of attending the issuing authority in China in January 2017 they were unable to find the records for the year of his divorce from Ms Hao or Gao to have it reissued. The applicant further stated that based on the advice of the staff at the issuing authority and notary office they suggested the applicant reapply to have his divorce certificate reissued on 9 January 2017. In support of these statements the applicant provided a NAATI accredited translation of a certificate into English amending the issuing date from 9 January 2012 to 9 January 2017.
The delegate found that the documentation the applicant submitted to the Department about his divorce from Ms Hao or Gao with the visa application on 15 November 2013 was counterfeit or had been altered by a person who did not have the authority to do so, as it was not genuinely issued in respect of the applicant’s claimed divorce date.
The representative provided a 26-page legal submission on 3 November 2023 which was of considerable assistance to the Tribunal in the conduct of this review.
The submission, and the applicant’s statutory declaration sworn on 2 November 2023, set out his personal and migration history. The applicant claims he has been defrauded by multiple migration agents who have taken his money, not lodged visa applications they said they would lodge on his behalf and have also not returned or have lost documents belonging to the applicant, including most critically his original divorce certificate ending his first marriage in China on 15 October 2010.
The applicant’s circumstances also include a complicated personal history of three marriages, multiple applications for Partner visas, a withdrawn application, a refused application, an important failure to provide correct information to the Department, Chinese authorities allegedly being unable to find his divorce file, a critical translation error in the translation of an important document and a failure to respond to the NOICC prior to the cancellation of his present Subclass 155 visa. The applicant finally retained his present representative’s immigration law firm on 4 April 2023.

The Tribunal found the narrative presented by the applicant to be complicated, confusing in some respects and far from compelling. The Tribunal found the legal submissions of the applicant’s representative to be well set out, clear and persuasive.
The representative’s legal submissions stated, in part (emphasis in original):
Based on the Decision Record, the delegate’s finding that the information provided by Hongsheng, i.e. that his marriage with Xiufang ended in ‘divorce’ on 15 October 2010 was incorrect, was based solely on the Department’s communication with the Civil Affairs Bureau of Huanggu District, Shenyang City (Civil Affairs Bureau) on 7 May 2021 which stated that:
·A reissued divorce certificate must contain the original divorce date, and that the reference number would begin with ‘BL’;
·The two parties seeking the divorce must be present at the time of lodging the divorce agreement in front of a registration officer.14
Based on the above advice, the delegate found that the Hongsheng ‘did not obtain a divorce from his first wife until 9 January 2017, when he physically presented to the relevant authorities to sign the relevant paperwork’.
We are instructed by Hongsheng that in 2010, there was a paucity of formal rules and official guidance regarding the issuance of documentation such as marriage and divorce certificates in China, and that it was common practice in his local area of Shenyang for documents to be obtained through intermediaries or friends that held positions in the public service. In this case, Hongsheng had a personal connection his friend, Yijun Lang, who he knew worked in the local government and had previously obtained documents for other members of the local community.
…
Given that there has not been a finding from a relevant authority in China that the certificate was invalid or devoid of any legal effect, it is possible that Hongsheng’s divorce from Xiufang would have been recognised by other government authorities upon presentation of the Divorce Certificate dated 15 October 2010. In light of this, and the threshold of evidence required to establish a breach of the Act in a cancellation matter, we submit that the better finding is that the evidence does not clearly establish that a breach occurred.
…
We note that there is no evidence suggesting that the Civil Affairs Bureau directly inspected the Divorce Certificate dated 15 October 2010 and concluded that the document was a ‘counterfeit document’. Neither did the delegate claim that the Civil Affairs Bureau made a finding that the document was ‘manufactured by an entity other than the relevant authority in order to resemble genuine documents’. Additionally, the delegate did not consider alternative possibilities relating to the nature of the document, including:
·That the Divorce Certificate was a valid document obtained through an alternative, unofficial process;
·That the Divorce Certificate, while invalid, was not ‘counterfeit’.
We submit that documents obtained through unofficial means or personal connections are at most, invalid or legally ineffective, but not ‘counterfeit’. We submit that for a document to be a ‘counterfeit’ document, there must be an element of dishonesty or an illegal purpose, as the Cambridge Dictionary definition suggests. Rather, the evidence before the Tribunal suggests that the document was obtained in good faith, for the valid and legal purpose of evidencing the end of Hongsheng’s marital relationship with Xiufang.
The Tribunal was provided with a copy of the Department file for the cancellation of the applicant’s Subclass 155 visa. Of great concern to the Tribunal is that it could not find a report, file note or any other evidence on the Department file of what the Departmental officer from the overseas post was told by the relevant authority in China on 7 May 2021 in relation to the applicant’s allegedly bogus re-issued divorce certificate.
The Tribunal has not discounted that the information provided to the Departmental officer by the officer from the relevant authority in China may be correct. However, the reproduction of that advice in the NOICC and in the primary decision omits what in the Tribunal’s view are critical details, including:
·The name and position of the Departmental officer who sought advice from the provincial Chinese authority as to the correct practices to obtain a reissued divorce certificate in the relevant province of China;
·The name and position of the officer from the relevant Chinese authority who advised the Department as to the correct practices to obtain a reissued divorce certificate in the relevant province of China;
·Whether the above information was obtained using an interpreter or whether the Departmental officer could communicate with the officer from the relevant Chinese authority in the latter’s preferred language;
·Whether a copy of the divorce certificate allegedly re-issued in January 2017 was provided to or inspected by the officer of the relevant Chinese authority;
·Whether the advice of the officer of the relevant Chinese authority in relation to the legitimate re-issuing of divorce certificates – that they would have a reference identification beginning with the letters BL and could only be re-issued if the divorced parties attended the office in person – are practices at the time the Departmental officer spoke to the Chinese authority in May 2021 and were also practices of the relevant Chinese authority in January 2017 when the applicant claims to have obtained the re-issued divorce certificate; and
·Whether the Department sought confirmation of the advice provided by the officer of the relevant Chinese authority in writing to ensure there was no misunderstanding of it.
In these circumstances the Tribunal is not convinced that the applicant has provided incorrect information, or a bogus document, to the Department as alleged in the NOICC. The cancellation of a visa entitling the holder to permanent residency in Australia should, in the Tribunal’s view, be based on clear information and evidence that leads to a compelling conclusion that the visa holder has breached the Act in the manners alleged. That is far from the circumstances presently before the Tribunal.
The Tribunal is being asked to rely on the oral advice of an unnamed officer of a provincial Chinese Authority where the authority, seniority or experience of that officer is not known to the Tribunal and whose advice was given to an unnamed Departmental officer whose authority, seniority or experience are also unknown to the Tribunal. This critical ‘evidence’ against the applicant has not been reduced to writing or verified in writing – or if it has those documents are not on the Departmental file provided to the Tribunal – other than in the NOICC and the primary decision. This is not sufficient ‘evidence’ to satisfy the Tribunal that the applicant has breached the Act as alleged in the primary decision.
For these reasons, the Tribunal finds that it is not satisfied there was non-compliance by the applicant in the way described in the s 107 notice.
Conclusion
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Michael Ison
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.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
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.

[2023] AATA 4228

4 December 2023

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Immigration

Administrative Law

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Judicial Review

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