Graham (Migration)

[2023] AATA 1165

Graham (Migration) [2023] AATA 1165 (5 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Naomi Malabute Graham

REPRESENTATIVE:  Mr Newsam Antonio (MARN: 1683305)

CASE NUMBER:  2109843

HOME AFFAIRS REFERENCE(S):          BCC2021/1220301

MEMBER:Meredith Jackson

DATE:5 April 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 05 April 2023 at 12:31pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 820 (Spouse) visa  – applicant provided bogus document in relation to daughter’s application for an Extended Eligibility (Temporary) Dependent Child visa – police clearance certificate was found to be non-genuine – a pending criminal claim against the applicant– visa holder may not have met PIC 4020 – significant emotional impact and hardship – contributions to the community –decision under review set aside  

LEGISLATION
Migration Act 1958, ss 103, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2, cl 820.226

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

1. 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 820 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2.    The delegate cancelled the visa on the basis that the applicant did not comply with section 103 of the Act, which requires that 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. The applicant in the present matter, Ms Naomi Malabute Graham, was found to have given a bogus document in relation to her daughter’s application for an Extended Eligibility (Temporary) Dependent Child (subclass 445) visa.

3.    The applicant appeared before the Tribunal on 21 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Stephen Alan Graham, Clarita Cleavly, Aracita Reyes and Teresita Wilson.

4.    The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. All parties addressed the Tribunal in English, however with part assistance from the interpreter as required.

5.    The applicant was represented in relation to the review.

6.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

BACKGROUND

7.    The review applicant is Ms Naomi Malabute Graham, who was born in 1967 and is a citizen of the Philippines. Ms Graham is married to Mr Stephen Alan Graham, an Australian citizen. Ms Graham was granted a Partner (subclass 820) visa on 16 July 2018, having married Mr Graham in November 2017. Ms Graham states that seven of her 12 children from a previous marriage, who are also citizens of the Philippines, are presently in Australia. None of her children is a minor. In February 2019, Ms Graham sponsored four of the children to Australia on visitor visas, intending that they would remain onshore. Among them was Gabrielle Kitchie Lerios, who applied for an Extended Eligibility (Temporary) Dependent Child (subclass 445) visa on the basis of being the child of a visa-holding parent in Australia. With the application, she submitted her mother’s police clearance certificate from the Philippines. This was the same certificate submitted with Ms Graham’s Partner visa application. The certificate was found to be non-genuine, a bogus document. The visa was subsequently cancelled.

ISSUES AND LAW

8.    The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

9. 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.

1. 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.

2. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

Was there non-compliance as described in the s 107 notice?

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 103 of the Act. The s 107 notice stated that it appeared the applicant had provided a bogus document to a Departmental officer in relation to an application for her Partner (subclass 820) visa; and, had the departmental officer been aware the document was bogus at the time of assessing the application, the Partner visa may not have been granted, because the applicant may have been found to not meet r.820.226. Regulation 820.226 requires the applicant to satisfy public interest criteria 4020 and 4021.

2. The applicant in her response to the relevant Notice of Intention to Consider Cancellation (NOICC)  issued under s 109 of the Act, acknowledged that she had submitted a falsified National Bureau of Investigation Clearance form from the Philippines in support of her Partner visa application. This, she claimed, was due to being unable to provide a genuine clearance because there was a pending criminal claim against her, lodged by a friend in the Philippines to whom she owed money.

3. At the time of review, the applicant does not dispute that she provided a bogus document in support of her Partner visa application, being the false police clearance certificate.

4. Accordingly, the Tribunal is satisfied there was relevant non-compliance.

5. For these reasons, the Tribunal finds that there was non-compliance with s 103  by the applicant in the way described in the s 107 notice.

Should the visa be cancelled?

1. 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).

2. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

• the correct information

• the content of the genuine document (if any)

• whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

• the circumstances in which the non-compliance occurred

• the present circumstances of the visa holder

• the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

• any other instances of non-compliance by the visa holder known to the Minister

• the time that has elapsed since the non-compliance

• any breaches of the law since the non-compliance and the seriousness of those breaches

• any contribution made by the holder to the community.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

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

1. That the decision to grant a Partner visa to Ms Graham was based in part on incorrect information and a bogus document is not in dispute. The applicant stated in the hearing that the police clearance provided with the partner application was fake. She sourced it because she had a debt to a friend, whom she named as Mariel Cendana, and whom she was trying to pay back but Ms Cendana had lodged a formal complaint against her, and she was scared she would not get a visa. “Someone” had helped her to get the falsified certificate for PHP 250,000 (approximately AUD 6,800), she stated, and it would state that she had no criminal record.

2. The delegate’s decision to cancel the visa records that the decision to grant the visa holder a Partner (subclass 820) visa was based in part on the bogus document provided. If the assessing officer had known the Police clearance document was bogus the visa may not have been granted, because the visa holder may not have met Public Interest Criterion (PIC) 4020.

3. Meeting PIC 4020 is a requirement for the grant of a Partner visa. Relevantly, PIC 4020(1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to (a) the application for the visa; or (b), a visa that the applicant held in the period of 12 months before the application was made.

4. The Tribunal has carefully considered whether the decision to grant the Partner visa to Ms Graham was wholly or partly based on the police clearance certificate found to be bogus. The Tribunal notes the delegate’s declaration in the Notice of Cancellation provided to the applicant states clearly that it was a factor in the decision to grant the Partner visa.

5. The Tribunal is satisfied that the decision to grant the visa was partly based on the police clearance certificate found to be bogus and, had that had the delegate been aware of its falsity, the visa may not have been granted, on the basis that the visa holder may not have met PIC 4020. On 30 July 2021, the applicant’s visa was cancelled. Ms Graham sought merits review of the delegate’s decision by the Tribunal.

6. The Tribunal weighs the consideration against the applicant.

Content of the Genuine Document

1. On 30 January 2023, the applicant submitted to the Tribunal a National Bureau of Investigations Certificate National Bureau of Investigations Certificate number NBI ID NO: M413KNQI76-MA56299870 dated 4 August 2022 valid until 4 August 2023.

2. The Tribunal has not independently verified the certificate, however accepts, for the purposes of this decision, that it is a genuine certificate that was issued after Ms Cendana executed an Affidavit of Desistance dated 26 July 2021. A copy of the affidavit was provided to the Tribunal. It states that Mariel Cendana is the private complainant in a case entitled People of the Philippines vs Naomi Malabute Criminal Case Nos 13-027, 13-028, 26264-B Municipal Trial Court in Cities, Santa Rose, Laguna. The declarant states that the filing of the case arose out of misappreciation of facts and serious misunderstanding between the parties, and that she unconditionally and irrevocably (has) decided to forever desist from (further prosecuting) the matter and was seeking dismissal.

3. The applicant claimed in oral submissions at the hearing that the events described came about after the applicant and her spouse, Mr Graham, had discharged all of the debt that Ms Graham owed Ms Cendana, and, the debt having been repaid, the complainant was satisfied. At the hearing the Tribunal asked the review applicant, and her partner Mr Graham, whether they could provide evidence that the debts had been discharged, such as banking records. The applicant, through her representative, sought additional time to provided evidence of debt clearance, and was granted 14 days to provide any further evidence. On 3 April 2023 the applicant provided the Tribunal a bundle of documents, including bank statements, transfer receipts and other related evidence of the gradual repayment of the debt by members of the family including Mr Graham. The bundle also included a number of statutory declarations regarding Ms Graham’s good character, including one from Australian citizen and Ms Graham’s daughter-in-law Krystel Gail Olarte, stating that “all” in the family had contributed to repaying the debt in full.

4. As referred to earlier, on 30 January 2023, the review applicant provided the Tribunal with a National Bureau of Investigation Multi-purpose clearance from the Department of Justice in the Republic of the Philippines dated 10 August 2022. This document describes the applicant Naomi Graham as having no criminal record. As also noted earlier in these reasons, the Tribunal has not verified the new certificate of clearance, and has not independently confirmed the withdrawal of the court proceedings referred to by the applicant at the time of review. As described earlier in these reasons, there is credible evidence before the Tribunal that the debt that had prompted the criminal complaint has now been withdrawn and resolved.  There is no evidence before the Tribunal of any existing or pending criminal matters against the applicant in her home country.

5. The Tribunal affords the consideration some weight in favour of the applicant.

The circumstances in which the non-compliance occurred

1. Ms Graham claims the circumstances in which the non-compliance occurred followed a period in the Philippines during which she became a compulsive gambler, and accrued debts to her friend of the time, Ms Cendana. She had been steadily repaying the debt, she stated, up until the time she departed the Philippines for Australia, however Ms Cendana became alarmed at her departure and lodged the complaint referred to earlier.

The present circumstances of the visa holder

1. Mr and Mrs Graham have been married for seven years. Each claims that it is a happy marriage, where they live together in their family home surrounded by seven of Ms Graham’s children, who live with them, while there are two children of Mr Graham’s former marriage who are happily, Mr Graham states, entwined but not cohabiting in the extended family arrangement. Mrs Graham is employed and has a background in the community as a volunteer and church goer, and as a fundraiser for various causes. Ms Graham’s contribution to the community in Australian will be revisited shortly.

2. Three witnesses gave evidence at the hearing, the applicant’s mother, Ms Clarita Cleavly, her friend of some years Ms Arecela Reyes, and a fellow volunteer from the Consulate of the Philippines, Ms Teresita Wilson. The general extent of the witnesses’ evidence was that the visa applicant is a decent, good person who works for her community and provides for her family and is happily married to Mr Graham. Notably, however, one of those witnesses, Ms Wilson, who had volunteered with the applicant for the work in the Consulate, stated that she was unaware, until it was raised in the hearing, that Ms Graham had provided bogus documentation with her visa application. She stated that she does not approve of anyone not following the rules, because everyone has to follow Australian rules from the start and get the visa the right way.

3. Mr Graham gave evidence he is immensely happy with his current life with his spouse and does not see a “feasible” way forward without the relationship continuing. He gave evidence that any change arising from Ms Graham’s visa being cancelled would “ruin” him, upset the family immensely, and force him to choose between his wife and his own two children in terms of location. He does not wish to live in the Philippines, he stated, because Australia is his country.

4. Mr Graham observed that his new family “are all about family, they want to be together, live together, which, he said, unlike his own two children who were out of home and spread out geographically, but still remained close to the family. If the visa were cancelled and Ms Graham had to leave Australia, he stated:

   That would ruin me, she is my wife. I have been living with her for six or seven years, she came to this country, I can’t go there, it is not feasible. It would absolutely ruin me, my life is not easy and this would crunch me. We are all supporting each other. I have been through a lot in my life. I worked for Queensland Rail all my life, other than two years doing a bit of management. I was in their workshops as a spray painter. I had one marriage and a de facto relationship and she passed away seven years ago now. The same year I met Naomi. I approached her, it was not the other way around.

Circumstances of the applicant in relation to her children

1. The delegate’s decision to cancel the visa states that the visa holder has twelve children, four of whom, at the time of the cancellations, were in Australia. Those four are Judy Anne Arguelles (DOB: 26/07/1996), Maureen Anne Malabute (DOB: 13/08/2000), Jayron Malabute (DOB: 05/12/2001) and Gabrielle Kitchie Lerios (DOB: 19/03/2004), all of whom, the decision indicates, have applied for an Extended Eligibility (Temporary), Dependent Child (subclass 445) visas with hopes of permanent residency. Ms Graham stated in the hearing, however, that her youngest child, Gabrielle Kitchie Lerios (now 19 years) has since returned to the Philippines to be near her father.

2. The Tribunal accepts that at least two of the children of Ms Graham, and potentially others, would be significantly affected by a decision to cancel their mother’s Partner visa. Ms Graham stated in the hearing that seven of her children are currently in Australia, some on student visas but living with her and Mr Graham in Brisbane, heavily reliant on them for housing and familial support.  Two of her adult children, a pharmacist and an accountant respectively, are settled in the Philippines, and two others are in Guam, while the youngest, Gabrielle Kitchie Lerios is, as previously noted, also in the Philippines by choice.

3. Of the children in Australia, two applications for review are before the Tribunal as constituted in the present matter, seeking review of their respective subclass 445 visa refusals on the basis of the applicants each having been found, after the cancellation, to have no visa-holding parent in Australia. The relevant applicants are Judy Anne Malabute, aged 26 years; and Maureen Anne Malabute, aged 22 years. Ms Graham submits that if she  were required to leave Australia, those children will be unable to secure a Subclass 445 visa. The Tribunal has considered this, and notes that in their adult circumstances, whatever the outcome of their respective reviews, it is reasonable to consider them capable of providing for themselves, economically, emotionally and to in immigration terms, independent of their mother.

4. The above notwithstanding, the Tribunal also notes the strong evidence of both Ms Graham and Mr Graham is that the family, despite the mature ages of the children, is a very close knit and inter-dependent one, as evidenced by the fact that the couple and the seven Australian resident children live together in one house, and Mr Graham states that he and the children are happy doing so.

The applicant’s circumstances in relation to her mother

1. The applicant’s 78 year-old mother Clarita Cleavly is a 78 year-old, and an Australian citizen. She gave evidence at the hearing that she has been in Australia for 28 years, having married an Australian she met in the Philippines who is now deceased. A former government employee and businesswoman from the Philippines and an active member of her local Catholic parish in Queensland, she stated that on learning that her daughter had provided bogus documentation to the department she was surprised, because her daughter, who is her only daughter and from a previous marriage in the Philippines, was a good person, a good daughter, and very generous. She also had not known about the gambling or the debts incurred by her daughter, as that habit was not evident when she left the Philippines for Australia when her daughter was in her late 20s, and she had seen her frequently since.

2. Ms Cleavly claims she is in favour of her daughter’s marriage to Mr Graham, and was present when the two met at a sporting club, when Mr Graham was grieving the loss of a former partner and approached his daughter for a dance. She said if her daughter were to return to the Philippines, it would be very sad for her as her mother, as she needs her here to look after her and so she can be with her grandchildren.

The applicant’s character witnesses

1. The Tribunal also heard evidence from witness Ms Teresita Wilson, a friend of the applicant from their Catholic parish who have been friends since October 2017, Ms Wilson described Ms Graham as “one of the best”, with all the values of good Filipino people and faith in Filipino customs, the old traditional way of respect for elders. She considers Ms Graham to be honest, she said, then referred to “a swindler”,  “who gave Ms Graham something to the office against her as a bad character.”

2. The evidence of Ms Aracela Reyes was more reserved, in that she appeared taken aback by the Tribunal apprising her of the provision of bogus documents with the visa application. She made clear she had no time for rule-breaking, however she stood firmly by her former colleague’s relationship with Mr Graham as sound and familial, stating that Steve and Naomi are genuinely a couple, husband and wife and seems close; the family is very strong, a clannish family, she stated.

3. The Tribunal observes that the statements of Ms Wilson and Ms Reyes tend to indicate that the applicant has provided little information to her character witnesses about the issues in the present case, however the Tribunal notes that the parties appeared to be confident that Ms Graham was a family-focussed and generous person. Questioned by the Tribunal about the discrepancies, Ms Graham responded that she does not tell them about such things because she is a shy person.

4. After the hearing, the applicant submitted a further five character witnesses, each attesting to Ms Graham’s good character, generosity as a community worker, her role as a loving wife and mother to her children. Several note the bogus document as wrongdoing, but claim she has no potential to repeat her mistake.

5. The Tribunal has considered the applicant’s circumstances separately and as a whole, and how her removal from Australian would affect both her partner Mr Graham and those other members of her extensive family close to her in Australia. The Tribunal accepts that there would be a significant emotional impact and hardship in particular for the applicant’s spouse, Mr Graham and for the applicant’s mother Ms Cleavly, who are both aged in their 70s. Each would be deprived of someone who provides significant emotional support and care to them, and Ms Cleavly would potentially deprived of her only daughter and grandchildren’s company.

Contributions to the community

1. Ms Graham’s contributions to the community since arriving in Australia are supported with evidence of her roles as a volunteer and member of her church and wider community. She submits that she is a good, lawful non-citizen and taxpayer of this country with a full-time job. She provides character references from former and current employers, each of whom speaks to a generosity of spirit and a kind personality with a hard work ethic and who enjoys their trust. Honorary Consul General of the Philippines Margaret Grummitt provides a Statutory Declaration dated 21 July 2012 describing the applicant to be a good worker, morally sound and of high character. Ms Graham claims to have helped numerous individuals to find work and assistance as a volunteer with the Consulate. Ms Graham is the holder of a “yellow card” Disability Services Positive Exemption and a Positive Notice blue card. In 2018, she volunteered with a Salvos Store in Brisbane and volunteered with Anglicare the same year by providing personal care and disability support for residents. She provided to the Tribunal evidence of fundraising in healthcare fields.

2. The Tribunal weighs the applicant’s contributions to the community strongly in favour of the applicant.

Conclusions on Ms Graham’s personal circumstances

1. Consideration of Ms Graham’s personal circumstances result in a finely balanced set of conclusions, weighed against the gravity of Ms Graham’s non-compliance with s 103 of the Act.

2. There is abundant evidence before the Tribunal that Ms Graham is a generous and pivotal member of the family structure she has built over seven years in Australia with Mr Graham and in addition, has made a sound contribution to the Australian community. As described earlier, she has volunteered in aged care, assisted the work of the Philippines consulate, and been an active member in support of three churches and their charities. She has provided evidence that she has achieved employment on a full time salary and to her credit, her English language ability is well developed.

3. Weighing against her somewhat is that she omitted to properly inform her character witnesses about her non-compliance, however she has explained that she was too shy to tell them: the Tribunal interprets from her statements that she was too ashamed. It is clear from her post-hearing submissions that she has been open about it with her additional referees.

4. The Tribunal is satisfied, after carefully considering the circumstances of the applicant in this particular case and in the overall circumstances of the present matter, that the applicant is a decent person who erred grievously, but deserves considerable credit for her contribution as a spouse, mother to 12 and a daughter-in-law, as a carer-daughter, member of the volunteer community and member of the workforce. The Tribunal affords applicant’s contribution to the community very strong weight in her favour.

Other considerations

1. There is no adverse evidence before the Tribunal concerning the applicant’s subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; nor is there evidence before the Tribunal of other instances of non-compliance by the visa holder known to the Minister. Ms Graham submits she has been cooperative with the Department throughout her stay in Australia and responded to the NOICC within the prescribed period. She sought to rectify  the issue of non-compliance by making an effort to obtain a proper National Bureau of Investigations Certificate which she has submitted on review. Ms Graham claims deep remorse over her actions, which she described as desperate. The time elapsed since the non-compliance is in excess of five years. There is no evidence before the Tribunal of any breaches of the law since the non-compliance occurred.

2. The Tribunal having turned its mind to the other considerations above weighs them in the applicant’s favour.

3. There is no evidence before the Tribunal that there would be consequential cancellations under s 140.

4. The Tribunal notes that of the applicant’s 12 children, none is a minor.

5. There is no evidence before the Tribunal that the cancellation would lead to the applicant’s removal in breach of Australia's non-refoulement or family unity obligations.

6. For the reasons above, 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 not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Meredith Jackson
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

2. Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

3. Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

4. Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

5. Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

6. Bogus 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).

7. Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

8. Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

9. Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.