Goonewardena (Migration)

Goonewardena (Migration) [2020] AATA 1955 (6 May 2020)
CORRIGENDUM
DIVISION:  Migration & Refugee Division
APPLICANT:  Ms Sulochana Buddhini De Alwis Goonewardena
CASE NUMBER:  1926023
DIBP REFERENCE(S):  BCC2017/1637041
MEMBER:  Michael Ison
DATE OF DECISION:  6 May 2020
DATE CORRIGENDUM
SIGNED:  22 May 2020
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the
decision:
1.Paragraph 4, last line – replace the words ‘Ms Noni Jean the former Office Manager for both Imagebuild Group Pty Ltd (Imagebuild).’ with the words ‘Ms Noni Jean, a licensed conveyancer who had a professional and personal relationship with officers and staff of both Imagebuild Group Pty Ltd (Imagebuild) and Alpha 14.’;
2.Paragraph 15, last word – replace ‘2016’ with ‘2019’; and
3.Paragraph 20, third dot point – replace ‘2017’ where it first appears with ‘2018’.

Michael Ison
Senior Member
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sulochana Buddhini De Alwis Goonewardena
CASE NUMBER:  1926023
DIBP REFERENCE(S):  BCC2017/1637041
MEMBER:Michael Ison
DATE:6 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.
Statement made on 06 May 2020 at 6:02pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – incorrect information in visa application – bogus documents – employment history – two businesses with co-directors and shared office, staff and resources – employed by one company then the other, assisting the other company as required – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 101(b), 103, 107, 109(1), 375A
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act) on 16 September 2019.
The applicant is Ms Sulochana Buddhini De Alwis Goonewardena, a 31 year old Sri Lankan national.
The applicant provided the Tribunal with a copy of the primary decision. The delegate cancelled the visa on the basis that the delegate was not satisfied that the applicant was genuinely working for the employer she claimed she was working for in her visa application. This caused the delegate to find that the applicant had given incorrect answers in her visa application in breach of s.101(b) of the Act, had provided bogus documents in breach of s.103 of the Act and in her response to a s.107 notice had made an incorrect statement in breach of s.107(2) of the Act. The issue in the present case is whether any of these grounds for cancellation are made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 17 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from one of the applicant’s former employers Mr Toby Pope, sole director of Alpha 14 Property Group Pty Ltd (Alpha 14) and Ms Noni Jean the former Office Manager for both Imagebuild Group Pty Ltd (Imagebuild).
To preserve the integrity of the witness’s evidence the Tribunal heard the evidence of the applicant first and excluded the witnesses from the hearing room when doing so and then separately heard each of the witness’s evidence.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing and provided written submissions before and after the Tribunal hearing and oral submissions during the Tribunal hearing. These submissions were of considerable assistance to the Tribunal in the conduct of this review.
The applicant had indicated in her response to the Tribunal’s invitation to attend a hearing that Mr Brett Spits, the sole director of Imagebuild, would give evidence at the Tribunal hearing. Mr Spits did not attend the hearing. The applicant, through her representative had indicated at the commencement of the Tribunal hearing that Mr Spits had been difficult to contact leading up to the hearing and had significant mental health issues at that time, with the result he did not attend to give evidence.
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.
Certificate issued under s.375A of the Act
The Tribunal received a copy of a certificate issued under s.375A of the Act that purported to certify that 28 folios of documents on the copy of the Department file provided to the Tribunal contained information that it was not in the public interest to provide to the applicant because the documents had been provided by a third party in confidence and disclosure could prejudice a current or pending investigation of a possible breach of the law.
The Tribunal provided a copy of the certificate to the applicant prior to the Tribunal hearing and invited the applicant to comment on the certificate. The applicant, through her representative, provided detailed comments on the certificate.
The Tribunal found the certificate was not valid because the certificate was not signed or dated by the delegate who issued it. The documents that the certificate purported to apply to were released to the applicant with the identifying information of the person who provided the documents to the Department and the names and identifying information of Departmental officers deleted. The applicant raised no objection to receiving the documents with these redactions.
Even if the certificate had been dated and signed by the delegate who issued it, it is unlikely the Tribunal would have found there were sufficient public interest grounds for the certificate to be valid. The information before the Tribunal was that the documents and information in them were the documents and information of the applicant and Imagebuild, not the third party who provided them to the Department. The Tribunal makes no finding in relation to whether the third party who provided them had a lien over, or other legal interest in, the documents or in some manner acted unlawfully in relation to the documents. The point here is that the redaction of third party personal information was sufficient to address the concerns of the Department without denying the applicant access to critical information relevant to the applicant fully understanding the case against her.
Applicant’s background
The applicant arrived in Australia on 23 July 2008 as the holder of a Student (Subclass 573 Higher Education Sector) visa that was valid to 15 March 2011. The applicant subsequently held a further Student visa, a Subclass 485 visa from 8 February 2013 to 9 January 2014, a Subclass 457 visa from 9 January 2014 to 18 May 2016 and a Subclass 186 visa from 18 May 2016 until it was cancelled by a delegate of the Minister on 16 September 2016.
At the time of the Tribunal’s hearing the applicant held a Bridging E (Subclass 050) visa, without any restriction on the applicant’s right to work or study in Australia.
The applicant explained her study and work history in Australia to the Tribunal, which the Tribunal summarises as:
·The applicant gained employment in May 2010 on a part-time basis in a business, not Alpha 14, operated by Mr Pope;
·Mr Pope established Alpha 14 as a property development business in 2011 and the applicant was employed by Alpha 14;
·At around the same time, Mr Spits had established Imagebuild as a construction company and the two business shared office, staff and resources with Mr Pope and Mr Spits being directors of both companies;
·Mr Pope ceased being a director of Imagebuild and Mr Spits ceased being a director of Alpha 14 in February 2012. This was supported by independent documentary evidence which the Tribunal accepts;
·The applicant was satisfied while she held the Subclass 457 visa she could work for either Alpha 14 or Imagebuild as they were associated entities in her view;
·Even when the businesses were legally separated in 2012, Mr Pope regularly provided direction and decisions in relation to Imagebuild matters and was commonly called upon by staff, including the applicant, to do this because Mr Spits was often out of the office working on building sites;
·From 1 December 2011 to 1 March 2013 the applicant was engaged as independent contractor using an Australian Business Number (ABN) by Imagebuild, on the recommendation of Mr Pope, as Imagebuild’s Company Secretary;
·The applicant says this work experience assisted her to be granted the Subclass 485 visa;
·The applicant says she also helped Alpha 14 over and above her full time work for Imagebuild during the period December 2011 to July 2012;
·Imagebuild then employed the applicant as an employee as its Company Secretary from 4 March 2013 to 24 June 2016;
·The applicant resigned from Imagebuild on 24 June 2016 and commenced employment for Alpha 14 from 27 June 2016;
·The applicant provided extensive documentation in support of the above evidence including employment agreements, payslips, tax returns, superannuation statement, company information and correspondence and statutory declarations declared by Mr Spits, Mr Pope, Ms Jean and Ms Lujie (Natalie) Wang who was a bookkeeper for both Imagebuild and Alpha 14 during the relevant period;
·The applicant maintains that the statements she made in her Subclass 186 visa application and in her supporting resume about her employment by Imagebuild and the copy of her employment agreement with Imagebuild provided as part of that document are all correct and therefore she has not provided incorrect information in breach of s.101(b) of the Act as part of her Subclass 186 visa application; and
·The applicant provided extensive written character references from professional people and personal friends that attest to her general good character and integrity.
Section 107 notices
In the present matter, the delegate issued two notices under s.107(1) of the Act. Those notices were dated 8 August 2018 and 27 May 2019. The second notice alleged the applicant had provided incorrect statements in her response to the first notice, such that those response were provided in breach of s.107(2) of the Act.
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notices issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notices?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notices, being the manner particularised in the notices, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notices were non-compliance with:
Section 107 notice dated 8 August 2018
·s.101 of the Act because the delegate found the applicant had included incorrect information in her Subclass 186 visa application, supporting resume and employment agreement by claiming she worked for Imagebuild from 1 December 2011 to September 2015 as a Company Secretary when the delegate found the applicant had worked for Alpha 14 as a Business Development Manager from 2014 because the applicant had been nominated for a Subclass 457 visa as company secretary by Alpha 14 on 6 August 2014, the applicant’s LinkedIn profile in 2018 stated the applicant was employed by Alpha 14 as a Development Manager & Operation Manager between January 2014 and July 2017 and as an Assistant Development Manager & Office Manager between January 2012 and January 2014 and the delegate had received evidence that the applicant used an Alpha 14 email account as her business email address during the relevant period;
·s.103 of the Act because the delegate found the applicant had provided bogus documents to the Department. The delegate found the applicant’s PAYG summary for the 2014 – 2015 financial year and pay slips for the period 9 March 2015 to 22 March 2015 and 6 April 2015 to 19 April 2015 from Imagebuild and an employment agreement between then applicant and Imagebuild, were all bogus documents, as that term is defined in s.5(1) of the Act, because the delegate did not accept the applicant was working for Imagebuild at the relevant times; and
Section 107 notice dated 27 May 2019
·s.107(2) of the Act because in the applicant’s response to the s.107 notice dated 8 August 2017 the applicant claimed that she assisted Alpha 14 only occasionally and that she was not paid for this assistance. The delegate found Alpha 14 reimbursed Imagebuild for the applicant’s services, the applicant had and used an email address that was an Alpha 14 email address and the applicant had access to bank accounts owned by Alpha 14 indicating to the delegate that the applicant was working for Alpha 14 during the relevant period. The applicant also provided a statutory declaration declared on 20 August 2018 in which the applicant declared she ceased employment with Imagebuild on 24 June 2016 and commenced employment with Alpha on 27 June 2016. The delegate found that the applicant’s individual income tax return for the 2015 – 2016 financial year included AUD13,307 in income received from Alpha 14 which the delegate found was evidence the applicant was employed by Alpha 14 earlier than she stated. The delegate found this evidence indicated the applicant’s answers to the s.107 notice dated 8 August 2018 that the applicant only commenced employment with Alpha 14 on 27 June 2016, had only assisted Alpha 14 occasionally in the past and had never been remunerated by Alpha 14 were each incorrect.
The delegate set out their reasons for cancelling the applicant’s Subclass 186 visa in a 19 page decision. The delegate’s decision was based largely on circumstantial evidence and a series of events, some recorded in documentary form from credible and independent sources, that if each item of evidence or event was taken separately and individually may not have led to the cancellation of the applicant’s visa which entitled her to permanent residency in Australia. However, taken collectively the delegate found there were grounds to cancel the applicant’s visa and the discretionary considerations, given cancellation of a visa under s.109 of the Act in the applicant’s circumstances is not mandatory, overall weighed in support rather than against the cancellation of the applicant’s Subclass 186 visa.
The Tribunal does not intend to document in this decision the response of the applicant and the witnesses to each of the findings of the delegate and other issues of concern raised by the Tribunal. To do so would take many pages that would be of limited utility.
What is important to record is that the Tribunal took detailed evidence from the applicant and Mr Pope in particular, with the Tribunal hearing for this review lasting over 4 hours. The Tribunal discussed with the applicant and where relevant with Mr Pope each of the delegate’s findings and other issues of concern to the Tribunal in a detailed, careful and considered manner.
The Tribunal found that the oral evidence available to it, supported by the extensive written submissions of the applicant’s representative and the even more extensive supporting documentary information, satisfied the Tribunal that there were reasonable and plausible, not just possible, explanations for each of the circumstances and events that caused the delegate to make adverse findings against the applicant.
What emerged for the Tribunal from this considerable volume of evidence and information was that the applicant was highly regarded by Mr Pope, came to be highly regarded by Mr Spits and was a senior and trusted employee in the early establishment of their respective businesses where her organisational and business skills were of great assistance to both Mr Pope and Mr Spits. It became clear to the Tribunal that Alpha 14 and Imagebuild operated with a great deal of inter-operability and sharing of financial, human and physical resources in an informal and usually undocumented manner that contributed to both businesses early growth and success. This approach of the businesses, with shared offices and staff, did not seem unreasonable or improbable to the Tribunal given the history and circumstances of each business at the time.
In questioning the applicant and Mr Pope in particular about these shared arrangements between Alpha 14 and Imagebuild, the Tribunal was concerned that the two businesses operated so closely but informally together during the relevant period that it could enable the applicant and the witnesses to weave a ‘story of convenience’ about who the applicant worked for and when in support of the claims she made in her Subclass 186 visa application.
The evidence given by the applicant and Mr Pope in particular at the hearing allayed the Tribunal’s concerns in this regard. The Tribunal is satisfied that under its detailed and very specific questioning of both the applicant and separately Mr Pope that if there had been any fabrication of ‘a story’ or oral evidence generally, that inconsistencies in their evidence would have emerged or inconsistencies between the documentary evidence available to the Tribunal and their oral evidence would have emerged. That did not occur for either the applicant or Mr Pope in a manner that gave the Tribunal cause for concern about the honesty or credibility of their oral evidence.
The Tribunal was particularly impressed by the applicant’s evidence about her work for Imagebuild as its company secretary. The applicant’s evidence in this regard revealed a depth of knowledge and a representation of Imagebuild, its operations, growth, overall financial circumstances and the role and contribution of the applicant over time that the Tribunal found to be realistic, credible and consistent with other information made available to the Tribunal. This evidence was critical to but not determinative for the Tribunal in assessing whether the applicant genuinely worked for Imagebuild as its company secretary during the period the applicant claimed she did on her application for the Subclass 186 visa.
The Tribunal finds that the applicant did genuinely work for Imagebuild when she claimed in her Subclass 186 visa application and supporting resume and that the copy of the employment agreement between Imagebuild and herself that she provided in support of that application was, therefore, genuine.
There are some other specific matters from the evidence and information before the Tribunal that should be addressed.
Mr Pope provided what the Tribunal found to be a plausible explanation for Alpha 14 seeking, unsuccessfully, to sponsor the applicant in the position of Company Secretary for Alpha 14 in August 2014. Mr Pope’s evidence was consistent with the earlier evidence of the applicant in this regard.

The applicant openly admitted to changing her LinkedIn profile to represent she had worked in property development roles for Alpha 14 when in reality she was working for Imagebuild. The applicant explained to the Tribunal’s satisfaction why she did this and her evidence in this regard was supported in critical respects by Mr Pope’s evidence. Clearly this was a matter of deception by the applicant, irrespective of her justifications of her actions. The Tribunal considered this when assessing the applicant’s evidence and credibility and found overall the applicant was an honest and credible witness and the changes to her LinkedIn profile did not reflect, in the Tribunal’s view, that she was actually working for Alpha 14 as represented on LinkedIn at the time rather than Imagebuild as claimed on her application for the Subclass 186 visa.
The Department received information about the applicant from a third party. The Tribunal will not comment on the source of that information even though the Tribunal has found the s.375A certificate issued by a delegate of the Minister was not validly issued.
As a separate matter, it is clear that there was a commercial dispute between Imagebuild and a third party supplier that contributed to the ultimate commercial demise of Imagebuild and those circumstances had a significant influence on the actions taken by the applicant at various stages throughout and after the relevant period in this matter. The Tribunal does not make any findings about or comment upon the causes of that dispute, who was at fault or whether the actions of the third party supplier that affected Imagebuild and its employees, including the applicant, were ethical or lawful.
The applicant and Mr Pope provided consistent but not identical evidence about the applicant’s work history initially for Mr Pope, then for Imagebuild and finally for Mr Pope again as an employee of Alpha 14 that the Tribunal found both plausible and credible.
The Tribunal had significant concerns about the evidence indicating Alpha 14 had paid Imagebuild for the applicant’s services for a six month period in 2015 and 2016, which included a near two month period when the applicant was overseas on leave from her work visiting her parents in Sri Lanka. The Tribunal questioned both the applicant and in particular Mr Pope about this information in significant detail, including why the applicant was not aware of this informal arrangement between Mr Pope and Mr Spits and why the applicant did not pick up the issuing of invoices by Imagebuild and the payment of invoices by Alpha 14 during that time in her role as Company Secretary. The Tribunal found the applicant and Mr Pope’s evidence in this regard to be plausible and credible and is satisfied with the explanations they provided.
The Tribunal also had significant concerns about the documentary evidence that the applicant’s tax return for the 2015 – 2016 included gross payments of $13,307 from Alpha 14. The explanation provided by the applicant, corroborated and expanded by Mr Pope’s evidence in crucial respects and supported by the statutory declaration of Ms Wang declared on 11 June 2019 was credible and consistent with other evidence about the role of Ms Wang before the Tribunal. This evidence was collectively sufficient to convince the Tribunal that the explanations provided were plausible and credible. The Tribunal notes that the applicant conceded it was an error on her part in submitting her tax return with incorrect information.
The Tribunal was not as concerned about the applicant’s use of email addresses for Imagebuild and Alpha 14 during the relevant period given the nature of the way those businesses were managed and operated at the time.
There were numerous other issues the Tribunal raised with the applicant and that were discussed in detail during the evidence of the applicant, Mr Pope or Ms Jean and also addressed in the post hearing written submissions provided by the applicant’s representative. These included the applicant initially working under an ABN for Imagebuild, potential discrepancies in pay slips provided by the applicant, the applicant having access to some of Alpha 14’s bank accounts, the applicant’s lack of access to the historical information of Imagebuild and Alpha 14 granting the applicant a very substantial pay rise when it employed her in June 2016. The evidence of the applicant and witnesses, supported by the documentary evidence and information provided to the Tribunal, in response to the questions of the Tribunal about these and other issues, contributed to the Tribunal finding that the applicant and witnesses were honest and credible and contributed to the Tribunal accepting the explanations provided.
For these reasons the Tribunal is satisfied that the applicant did work for Imagebuild in the role she claimed and during the period she claimed in her application for the Subclass 186 visa and therefore has not breached ss.101, 103 or 107(2) of the Act in the manner set out in the s.107 notices.
Conclusion
For the reasons set out in this statement of decision and reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notices.
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notices 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 186 - Employer Nomination Scheme 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.

[2020] AATA 1955

6 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice