He (Migration)

Case

[2023] AATA 2177

20 June 2023


He (Migration) [2023] AATA 2177 (20 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jiabao He

REPRESENTATIVE:  Mr Shuonan Zhao

CASE NUMBER:  2114662

HOME AFFAIRS REFERENCE(S):          BCC2021/1371948

MEMBER:R. Skaros

DATE:20 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 20 June 2023 at 5:16pm

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa – bogus document – a member of the family unit – documents had been intentionally altered – provision of bogus documents as evidence of the applicant’s cohabitation with Mr Zhao – applicant did not reside with Mr Zhao in a genuine and committed de facto relationship -– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 101, 103, 109, 375

Migration Regulations 1994, r 1.03, 1.12

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

  2. The delegate cancelled the visa on the basis that there was non-compliance with s 101 and 103 of the Act in relation to a previously held Skilled - Independent (Subclass 189) visa. The applicant provided a copy of the delegate’s decision record to the Tribunal.

  3. The applicant appeared before the Tribunal on 21 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current spouse, Mr Yifeng Cao. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

  4. The applicant was represented in relation to the review. The representative attended the hearing.

  5. Prior to the hearing, the Tribunal received written submissions from the applicant’s representative, together with various supporting documents, including statutory declarations from the applicant and Mr Cao, statutory declaration from Winnie Wang, property title searches and contracts of sale, and personal statements from friends of the applicant. The Tribunal has had regard to the evidence in this material further below.

    Non-disclosure certificate issued under s 375A of the Act

  6. The Department’s file included a non-disclosure certificate issued under s 375A of the Act in respect of various documents, including a Document Examination Report and internal correspondence between the Department’s cancellation unit and the forensic examination unit. The certificate provides that disclosure of the specified documents would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would or be likely to prejudice the effectiveness of those methods.

  7. On 6 February 2023, the Tribunal wrote to the applicant and informed her of the existence of the certificate, a copy of which was provided. At the hearing, the Tribunal discussed with the applicant the nature of the information covered by the certificate, and explained that the information, to the extent it was relevant to the issues in the review, had been disclosed to her in the Notice of Intention to Consider Cancellation (the s 107 notice), which was also set out in the delegate’s decision record. The applicant was invited to comment on the validity of the certificate and to provide any other information she wished the Tribunal to consider. The applicant’s representative submitted that, if the relevant information has been disclosed to the applicant, they did not object to the validity of the certificate.

  8. The Tribunal is satisfied that the certificate issued under s 375A the Act is valid. It was dated and duly signed by the authorised delegate of the Minister and provides a valid public interest reason for the non-disclosure of the specified documents. In any case, the Tribunal is satisfied that the relevant information contained in those documents has been disclosed to the applicant in the s 107 notice and that the applicant had an opportunity to respond to the information. Furthermore, the information was set out in the delegate’s decision record, a copy of which was provided to the Tribunal.

    Invitation to comment on or respond to information – s 359AA

  9. During the hearing, the Tribunal invited the applicant to comment on or respond to adverse information using the procedure in s 359AA of the Act. The applicant sought a short break to consider the information before responding, which the Tribunal granted. The representative initially indicated that they may request 14 days to provide further supporting evidence, which the Tribunal indicated it would consider following further discussions. The applicant returned from the break and wished to respond to the information, which the Tribunal permitted. Following the applicant’s response, the representative said they were no longer requesting a 14-day extension of time. At the end of the hearing, the applicant was again asked whether she still wished to seek any additional time to provide any further information, to which she indicated she did not.

  10. Following the hearing, on 23 February 2023, the representative wrote to the Tribunal advising that they wished to obtain supplementary materials in response to the information put to the applicant at the hearing and requested a period of 21 days. On instructions from the presiding member, an officer of the Tribunal attempted to contact the representative to ascertain the nature of the materials they wished to provide. After several unsuccessful attempts to contact the representative by telephone, the Tribunal decided that the most efficient way to proceed was to grant an extension of time to enable the applicant to provide the additional material. On 27 February 2023, the Tribunal wrote to the applicant’s representative advising that the Tribunal had agreed to grant an extension of time, but only until 7 March 2023, to provide any further material they wished the Tribunal to consider. This date has now passed, and the Tribunal has not received any further correspondence (or material) from the applicant or their representative. The Tribunal is satisfied that the applicant has had sufficient time to provide any additional material, in the circumstances the Tribunal considered it appropriate to proceed to a decision on the evidence before it.

  11. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

  12. 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.

  13. 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.

  14. 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?

  15. 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 101 and s 103 in the following respects:

  16. On 20 February 2016 the applicant applied for the Skilled – Independent (Subclass 189) visa as the de facto partner of Mr Pengming Zhao. On the visa application form it was indicated that the applicant and Mr Zhao’s de facto relationship began on 16 September 2014. The residential address provided in the form was 602/267 Sussex St, Sydney, NSW 2000.

  17. The applicants declared that they understood that the giving of false or misleading information is a serious offence, that they have read and understood the information provided to them in the application, that they have provided complete and correct information in every detail in the form and on any attachments and they understand that if, after the visa has been granted, any documents are found to be fraudulent or information found to be incorrect, that the visas may be subsequently cancelled.

  18. The s 107 notice indicates that the following documents were provided with the Subclass 189 visa application as evidence of the applicant and Mr Zhao’s claimed cohabitation from 16 September 2016:

    ·Twelve Vodafone phone bills purportedly sent to Mr Pengming Zhao at the address

    602/267 Sussex St, Sydney NSW 2000, issued on 6 June 2014, 6 July 2014, 7 August 2014, 6 September 2014, 6 October 2014, 6 April 2015, 6 July 2015, 7 August 2015,

    6 September 2015, 6 October 2015, 6 January 2016 and 7 March 2016.

    ·Two Vodafone phone bills purportedly sent to Miss Jiabao He at the address

    602/267 Sussex St, Sydney NSW 2000, issued on 5 November 2014 and 5 December 2014.

    ·Nine Vodafone phones bill purportedly sent to Miss Jiabao He at the address

    602/267 Sussex St, Sydney NSW 2000, issued on 5 January 2015, 5 February 2015,

    5 March 2015, 5 April 2015, 5 May 2015, 5 June 2015, 5 July 2015, 5 August 2015 and

    5 September 2015.

  19. The delegate who issued the s 107 notice considered that the applicant had to satisfy the definition of ‘Member of the family unit’, as provided for in Regs 1.03 and 1.12 to meet the requirements in cl 189.311 for the grant of the visa.

  20. Regulation 1.12 relevantly defines ‘Member of the family unit’ (in part) as a ‘spouse or de facto partner’ of the family head. Section 5CB of the Act defines de facto relationship for the purposes of ‘Member of the family unit’ as:

    Section 5CB De facto partner

    De facto partners

    (1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

    De facto relationship

    (2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

    (a)  they have a mutual commitment to a shared life to the exclusion of all others; and

    (b)  the relationship between them is genuine and continuing; and

    (c)   they:

    (i)live together; or

    (ii)   do not live separately and apart on a permanent basis; and

    (d)   they are not related by family (see subsection (4)).

  21. The delegate considered that, based on the material provided regarding the applicant and Mr Zhao’s cohabitation, as well as meeting other relevant criteria, that the applicant was granted the Subclass 189 visa on 25 May 2016 on the basis of being the de facto partner of Mr Zhao.

  22. Subsequent to the grant of the visa, a forensic examination undertaken by the Department of the above listed phone bills provided in the visa application found that:

    ·The residential addresses shown on the 12 phone bills provided, issued to Mr Pengming Zhao, from June 2014 to March 2016, do not match the residential addresses officially linked and registered to those documents;

    ·The residential addresses shown on the two phone bills provided, issued to Miss Jiabao He from November to December 2014, do not match the residential addresses officially linked and registered to those documents; and

    ·The residential addresses shown on the nine phone bills provided, issued to Miss Jiabao He, from January to September 2015, do not match any residential address officially linked and/or registered to those documents.

  23. Based on the above, the delegate formed the view that the documents are ‘bogus documents’ as they had been altered by a person without authority to alter them. The delegate considered that the documents were submitted to demonstrate that the applicant and Mr Zhao were cohabitating in a genuine committed de facto relationship, so the applicant can meet the ‘member of the family unit’ criterion.

  24. The s 107 notice further provides that, on 29 December 2017, the applicant lodged an application for Australian Citizenship. As part of that application, she submitted electronic form 1300t ‘Application for Australian Citizenship by Conferral - General Eligibility 1300t’ in which she stated her current address to be U513/3 Gearin Alley, Mascot NSW 2020. In response to the question ‘Has the applicant had any other residential addresses in the past five years?’, she indicated that she had resided at 301/3 Park Lane, Chippendale NSW 2008 from 1 May 2014 to 31 May 2015 and C0306/28 Rothschild Ave, Rosebery NSW 2018 from 1 June 2015 to 31 May 2016.

  25. On 30 July 2019 the Department issued the applicant a letter inviting her to comment on adverse information provided in the Skilled – Independent application regarding the above listed phone bills which were found by the forensic document examiner to have been intentionally altered and that the true addresses associated with those documents were 213/11A Lachlan St, Waterloo NSW 2017 and 301/3 Park Lane, Chippendale NSW 2008.

  26. In response to the Department’s letter, submissions were provided on behalf of the applicant via her migration agent. It was contended that the applicant and Mr Zhao were in a genuine and continuing relationship, though the relationship did eventually break down. During their de facto relationship they cohabited at the same address in the city. The applicant and Mr Zhao ceased to have contact. The anomalies in the address arose from the applicant renting apartments for her good friend, Jiaying Wu. To assist Jiaying Wu, the applicant rented an apartment in Central Park – 301/3 Park Lane Chippendale from 2014 to 2015 and another property at 306/28 Rothschild Ave, Rosebery from 2015 to 2016. When she completed the application for Australian citizenship, she no longer had any paperwork for the city address where she and Pengming lived together because Pengming had kept everything. The applicant denied that she had altered the documents in anyway.

  27. In addition to her personal statement, the applicant also provided a statement from Jiaying Wu stating that she sub-leased the property at Chippendale from the applicant from 2014 to 2015, she also sub-leased the property at Rosebery from the applicant from 2015 to 2016 and after the applicant’s property in Mascot settled, she also subleased the Mascot property Mascot from the applicant. Also provided was a statement (untranslated) from Aihui Peng, the owner of the Chippendale property, which the representative submitted was evidence that the applicant had leased the property from Ms Peng for the benefit of her friend Ms Wu.

  28. The s 107 notice further provided that additional information had come to the Department’s attention which raised further concerns regarding the genuineness of the applicant’s relationship with Mr Zhao. It noted that departmental records indicated that the intended address declared on the applicant’s incoming passenger cards, upon her arrival into Australia on 23 September 2014 and 1 March 2015, was ‘301/3 Park Lane Chippendale NSW’. Also, the intended address declared on her incoming passenger card upon her arrival into Australia on 7 June 2015 was ‘C0306/28 Rothschild Ave Rosebery NSW 2018’. It was noted that neither of those addresses matched the address provided in the skilled visa application at the time, but they were consistent with the addresses provided later in the citizenship application. The applicant had also provided the details of persons other than Mr Zhao as her emergency contact person on the incoming passenger cards upon her arrival in Australia on 1 March 2015 and 7 June 2015.

  29. Based on the above information, the delegate formed the view that the applicant did not reside with Mr Zhao in a genuine and committed de facto relationship as claimed.

  30. The delegate considered that there had been non-compliance with ss 101 and 103 of the Act and issued the s 107 notice on this basis. The applicant was given the prescribed period of 14 days to provide a response.

  31. The delegate’s decision record, a copy of which was provided to the Tribunal, indicates that the applicant did not respond to the s 107 notice. The Tribunal observed that the s 107 notice was sent to the applicant by registered post to her Mascot address, with a courtesy copy sent by email.

    Submissions to the Tribunal

  32. On 20 February 2023, the Tribunal received a bundle of documents dated 21 November 2022. In written submissions, the representative relevantly stated that the applicant acknowledges that the phone bills had been altered, but that she was not personally involved in the process, as the visa application was prepared by Mr Zhao. It was stated that the applicant acknowledges that the conduct is ultimately attributable to her. It was submitted, however, that the applicant and Mr Zhao were in a genuine relationship.

  33. In a seven-page statutory declaration, dated 13 February 2023, the applicant provided the following (very brief) information about her claimed relationship with Mr Zhao: that they entered into a formal relationship in June 2014 and broke up around mid-2016. Nothing further was said about that relationship, and the remainder of the statutory declaration set out a detailed history of the applicant’s current relationship with Mr Yifeng Cao, her present circumstances, including her employment in Australia and caring for her great aunt, and her contribution to the community. She also provided copies of the documents she had provided to the Department in relation to her citizenship application, including her personal statement and the statements from Ms Jiaying Wu and Aihui Peng, which she claimed was evidence that she had subleased the Chippendale and Rosebery properties for the benefit of her friend Ms Wu.

    Oral evidence at the hearing

  34. At the hearing, the Tribunal discussed with the applicant the information set out in the s 107 notice which indicated that bogus documents had been provided with the Subclass 189 visa application. It also explained that the information further suggests that she and Mr Zhao were not in a de facto relationship as claimed and had not resided together. In response, the applicant said the de facto relationship is genuine and, in terms of the address, she was young at the time, and she trusted that person and gave him everything to deal with. When asked about details of the addresses at which they resided, she said ‘the city’. When asked for further details, she said Liverpool St, Sydney, in an apartment on top of World Square. She said they lived at that address for more than two years.

  35. The Tribunal observed that the address indicated by the applicant was again different than the address provided in the visa application form. It also had other information before it from Mr Zhao’s visa cancellation file, which was inconsistent with the evidence that she had provided. Using the procedure in s 359AA, which the Tribunal explained to the applicant in detail, the following information was particularised for the applicant:

    ·In response to a notice to consider cancelling his visa, Mr Zhao made submissions to the Department, which was inconsistent with evidence that she had provided to the Tribunal.

    ·Mr Zhao stated that at the end of 2015 he was looking at lodging his skilled visa application and he came across a man named Kevin Li, who claimed to be a migration agent. Kevin Li approached Mr Zhao and offered to handle his Subclass 189 Skilled visa application, without any fees.

    ·Mr Zhao was aware that the applicant would be included in his application. Kevin Li told Mr Zhao that he would not need to pay the application fee. Mr Zhao was reluctant in the beginning, but was eventually persuaded, because the agent told him that the worst-case scenario would be that he would have to re-lodge the application solely (without including the applicant).

    ·Due to financial pressure that Mr Zhao had at the time, he agreed to proceed with the application which included the applicant as his de facto.

    ·Mr Zhao provided the documents to the agent and believes that it was the agent who had altered the documents as part of the arrangement.

    ·On the advice of the agent, Mr Zhao agreed to meet with the applicant to take some social photographs so that they could be submitted with the visa application.

    ·Mr Zhao made admissions that they were not in a de facto relationship and that they had never resided together at Sussex St, Sydney, as indicated in the visa application.

  1. The Tribunal explained to the applicant that the information was relevant because it is inconsistent with her claim that she was in a genuine relationship with Mr Zhao and that they had resided together. The information suggests that the applicant and Mr Zhao were not in a de facto relationship and had not resided together as claimed. It also raises the concern that the applicant was only included in Mr Zhao’s visa application for the purpose of securing a migration outcome and Mr Zhao appears have obtained some financial advantage, being that he would not have to pay any fees, in exchange for including her as his de facto in the visa application.

  2. The Tribunal explained that the information was relevant to the Tribunal’s consideration of whether there has been non-compliance with s 101 of the Act (provision of incorrect information) and s 103 of the Act (provision of bogus documents) as described in the s 107 notice. It is also considered the information to be relevant to its consideration of the circumstances in reg 2.41, including the circumstances of the non-compliance, as the Tribunal may find that the applicant had knowingly engaged in fraudulent conduct to secure a migration outcome.

  3. The Tribunal explained to the applicant that, subject to her comments or response, if it relied on that information, together with other information before it, it may find that there has been non-compliance as described in the s 107 notice and, in the exercise of its discretion, it may give weight to the information in favour of cancelling her visa.

  4. The applicant indicated that she understood the matters put to her by the Tribunal and requested a short break to consider her response.

  5. Upon resumption of the hearing, the applicant said the relationship between Mr Zhao and her was genuine. They struggled together and she wants to emphasise that they never lived in Sussex St, Sydney and that they lived in an apartment above World Square.

  6. The Tribunal put to the applicant that she had never previously indicated, and there was no other evidence before it which suggests, that she had resided in an apartment on Liverpool St, Sydney despite her claim to have lived there with Mr Zhao for two years. It noted that none of the genuine addresses associated with the documents (which were found to be bogus) indicated the Liverpool St, Sydney address, nor was that address declared on her citizenship application or any of her incoming passenger cards. The Tribunal was concerned that the applicant may have contrived that evidence and put her on notice that it may not consider her to be a credible witness. The applicant did not comment.

  7. The Tribunal has considered all the evidence before it and finds, for reasons that follow, that there has been non-compliance with ss 101 and 103 of the Act as described in the s 107 notice.

  8. The Tribunal has first considered whether the documents, as particularised in the s 107 notice, are bogus as defined in s 5 of the Act. As part of the Subclass 189 visa application, various Vodafone bills in the applicant’s and Mr Zhao’s names, dated between 2014 and 2016, were provided indicating a common residential address at 602/267 Sussex St, Sydney NSW 2000. Forensic examination of the Vodafone bills concluded that the addresses on those statements had been altered. The genuine address found to be associated with Mr Zhao’s Vodafone bills was at Waterloo, while some of the Vodafone bills in the applicant’s name were found to be the Chippendale address. The same Chippendale address was declared by the applicant in her citizenship application, where she indicated she had resided between 1 May 2014 and 31 May 2015, and on her incoming passenger card on 23 September 2014 and 1 March 2015.

  9. The Tribunal gives significant weight to the conclusions of the forensic examination and finds, based on that evidence, that the documents, being Vodafone bills provided with the Subclass 189 visa application, have been intentionally altered. Given the nature of the documents and the purpose for which they were provided, the Tribunal also suspects that the alterations were made by a person who did not have the authority to do so. Accordingly, the Tribunal finds that bogus documents, as defined in s 5(1)(b) have been provided to the Department.

  10. The applicant has denied altering the addresses on the documents. It was claimed that the application was prepared by Mr Zhao and that the applicant was not involved in the process. However, it was conceded that the conduct (being alternation of the addresses on the phone bills) are ultimately attributable to the applicant. The Tribunal accepts that the applicant did not personally alter, or authorise the alteration of, the addresses on the Vodafone bills. The Tribunal considers that the alterations were likely done by the agent who assisted Mr Zhao with lodgement of the visa application. It is not necessary for the Tribunal to determine who altered the documents, s 103 merely requires a non-citizen not to provide a bogus document or cause such a document to be provided. In this case, the applicant was aware that a visa application was being lodged on her behalf and had provided documents in support of that application. On this basis, the Tribunal finds that the applicant had caused the documents (which were found to be bogus) to be provided to the Department as part of the Subclass 189 visa application.

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

  12. The Tribunal has next considered whether incorrect answers were provided in relation to the Subclass 189 visa application as described in the s 107 notice.

  13. In the visa application, it was indicated that the applicant and Mr Zhao commenced a de facto relationship on 16 September 2014 and that they were residing together at 602/267 Sussex St, Sydney, NSW 2000. For reasons that follow, the Tribunal does not accept that the applicant was in a de facto relationship with Mr Zhao or that they had ever lived together either at Sussex St, Sydney, as claimed in the visa application, or at Liverpool St, Sydney, as claimed by the applicant at the hearing.

  14. In support of the claimed de facto relationship, documents were provided as evidence of cohabitation, including Vodafone bills dated between 2014 and 2016 suggesting that the applicant and Mr Zhao resided at Sussex St, Sydney, during that period. As noted above, forensic examination of those documents indicated that some of the documents were altered, and that the genuine address associated with the Vodafone bills in Mr Zhao’s name was at Waterloo, and some of the bills in the applicant’s name indicated the address at Chippendale. The findings of the forensic examiner suggest that the applicant and Mr Zhao had different residential addresses during the period of the claimed relationship.

  15. In her citizenship application, the applicant indicated that she had resided at the Chippendale address from 1 May 2014 to 31 May 2015 and at an address in Rosebery from 1 June 2015 to 31 May 2016. In responding to the discrepancy in the addresses (between the skilled visa application and what was provided in the citizenship application), the applicant claimed that she and Mr Zhao lived at the same address in the city and that the addresses on the citizenship application were properties she had sub-leased to her friend, Ms Wu. The Tribunal has considered the explanation that the applicant did not have any paperwork for the city address at which she lived with Mr Zhao and for this reason provided details of the addresses of the properties she had rented out for her friend Ms Wu, however, the Tribunal does not find credible that the applicant was not able to recall an address (in the city) at which she claimed to have resided for two years. The Tribunal considers that the reason the applicant did not provide details of the ‘city’ address in the citizenship application was because she was not residing there with Mr Zhao as claimed. The Tribunal view is further informed by the contemporaneous evidence provided by the applicant on 23 September 2014 and 1 March 2015 in her incoming passenger cards, in which she declared her Chippendale address. On her subsequent entry into Australia, on 7 June 2015, the applicant declared the Rosebery address on her incoming passenger card.

  16. The addresses on the incoming passenger cards, which the Tribunal considers to be contemporaneous evidence, correspond with the addresses declared by the applicant on her citizenship application for the same time period. When this evidence is considered in combination with the findings of the forensic examination, which found that the genuine address associated with some of the Vodafone bills in the applicant’s name was in Chippendale, it leads the Tribunal to the conclude that the applicant was residing in Chippendale (between 2014 and 2015) and not at a ‘city’ address with Mr Zhao as claimed.

  17. The evidence regarding the applicant’s claim to have resided at a ‘city’ address with Mr Zhao for two years was also problematic. The visa application, which was lodged in February 2016, and accompanying documents indicated that the applicant and Mr Zhao had resided at an address in Sussex St, Sydney since 2014. Firstly, as found above, the supporting documents with the Sussex St address were found to have been altered. Secondly, the applicant (when responding to adverse information put to her in relation to her citizenship application) did not provide details of the address she claimed to have resided at with Mr Zhao, stating only that they lived together at a ‘city’ address, details of which she could not recall when completing the citizenship application form. Thirdly, in her oral evidence at the hearing, when asked about the address at which she resided with Mr Zhao, the applicant claimed (for the first time) that it was at Liverpool St, Sydney, above World Square. The Tribunal notes that none of the addresses previously provided either in connection with the visa application, the applicant’s citizenship application, or addresses on the applicant’s incoming passenger cards indicated the Liverpool St, Sydney, address. The Tribunal formed the view that the applicant had contrived the evidence about residing in Liverpool St, Sydney, because she did not know what address (other than it was in the city) had been included in the visa application. The Tribunal considers that if the applicant had resided with Mr Zhao at either the Sussex St, Sydney, or Liverpool St, Sydney, for two years there would have been some independent, reliable evidence to corroborate those claims. The Tribunal is not satisfied that the applicant resided with Mr Zhao at any address.

  18. Further to the above, the Tribunal has information before it, which was given by Mr Zhao in relation to another matter, in which he indicated that the inclusion of the applicant in his Subclass 189 visa application was arranged by an agent in exchange for Mr Zhao not having to pay any fees. Mr Zhao admitted to not being in a de facto relationship with the applicant and indicated that they had never resided at Sussex St, Sydney, as indicated in the visa application. When this adverse information was discussed with the applicant at the hearing, she agreed that they did not reside at Sussex St, Sydney, but then claimed that they lived together in an apartment above World Square (Liverpool St, Sydney). As considered above, the Tribunal does not accept that the applicant had ever resided at any address with Mr Zhao. The Tribunal considers that it would have been highly detrimental to Mr Zhao’s visa cancellation proceedings to have made those admissions and, in the Tribunal’s view, he would not have made such admissions if he and the applicant were in a genuine de facto relationship and had resided together as claimed in the visa application.

  19. Of further concern, is that there is limited genuine, reliable, and contemporaneous evidence before the Tribunal which supports the applicant’s claim that she and Mr Zhao were in a de facto relationship for the period claimed. Documents provided with the visa application as evidence of their cohabitation were found to have been altered, and the information provided on the applicant’s citizenship application and incoming passenger cards did not support the applicant’s claims to have resided to Mr Zhao. Further, the photographs of the applicant and Mr Zhao provided with the visa application were, on Mr Zhao’s evidence, contrived for the purpose of the visa application. There is also limited evidence that the applicant and Mr Zhao had pooled financial resources, shared expenses or had joint assets or liabilities. There is limited evidence that the applicant and Mr Zhao had represented themselves as a couple socially or that they had a mutual commitment to one another and considered the relationship to be a long term one.

  20. The Tribunal has considered the supporting documents from Ms Wu and Ms Peng regarding the applicant sub-leasing the properties to her good friend Ms Wu, however, did not consider them of assistance in this matter. Firstly, they do not overcome the serious concerns, as discussed above, regarding the applicant’s claim to have resided at a city address with Mr Zhao. Secondly, they say nothing about where the applicant was residing during the claimed sub-lease period. Thirdly, they do not explain why the applicant would indicate she was living at those addresses on her incoming passenger cards, if she was not in fact living there at the time. The Tribunal considers the material from Ms Wu and Ms Peng regarding the sub-lease of the properties to be of limited evidentiary value and finds that they do not support the applicant’s claims to have resided with Mr Zhao.

  21. For all the above reasons, the Tribunal does not accept that the applicant and Mr Zhao were in a de facto relationship as claimed in the Subclass 189 visa application.

  22. Based on the above considerations, the Tribunal finds that incorrect information has been provided in the application about the applicant and Mr Zhao being in a de facto relationship since September 2014. The Tribunal also finds that incorrect information has been provided about the applicant and Mr Zhao’s joint residential address. The Tribunal accordingly finds that there has been non-compliance with s 101(b) of the Act.

  23. For these reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

  24. 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).

  25. 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 and have been considered as follows:

    The correct information

  26. The correct information, as found above, is that the applicant and Mr Zhao were not in a de facto relationship as claimed in the visa application. The Tribunal also finds that the correct information is that the applicant and Mr Zhao did not reside together as claimed in the visa application.  

  27. The Tribunal considers that incorrect information about the nature of the relationship between the applicant and Mr Zhao was provided in the application for the purpose of securing the applicant a permanent residence visa. The Tribunal gives weight to this consideration in favour of cancelling the applicant’s visa.

    The content of the genuine document (if any)

  28. The documents identified in the s 107 notice (which the Tribunal has found to be bogus), are the Vodafone bills which were provided with the visa application as evidence of the applicant and Mr Zhao’s joint address at Sussex St, Sydney. Forensic examination concluded that the addresses officially linked to those documents had been altered. The address officially linked to the documents in Mr Zhao’s name was the Waterloo address, while documents in the applicant’s name showed the Chippendale address.

  29. The Tribunal considers that the bogus documents were provided as evidence of the applicant and Mr Zhao’s claimed de facto relationship and cohabitation for the purpose of securing the applicant a permanent residence visa. The Tribunal gives weight to this consideration in favour of cancelling the applicant’s visa.

    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

  30. The applicant was included in Mr Zhao’s Skilled (Independent) Subclass 189 visa application as his de facto partner. To satisfy the definition of de facto partner, as provided for in s 5CB of the Act, the applicant would have had to demonstrate among other things that, she and Mr Zhao lived together or did not live separately and apart on a permanent basis: s 5CB(2)(c).  In support of the claim that the applicant and Mr Zhao were in a de facto relationship, information and documents were provided to the Department as evidence of their claimed cohabitation. Those documents, as set out in the s 107 notice, included Vodafone bills dated from 2014 to 2016, which purported to show that the applicant and Mr Zhao were residing together at Sussex St, Sydney.

  31. The Tribunal considers that the delegate, when considering whether to grant the applicant the Skilled (Independent) Subclass 189 visa as a member of Mr Zhao’s family unit (de facto partner), would have considered, among other documents, the Vodafone bills, the addresses of which had been altered, to show that she and Mr Zhao had been residing together. The delegate would have also had regard to the information on the visa application claiming that the parties were in a de facto relationship since September 2014 and had been residing together.

  32. When the above was discussed with the applicant at the hearing, she indicated that she did not wish to comment.

  33. The Tribunal is satisfied that the decision to grant the applicant the Subclass 189 visa (as a member of Mr Zhao’s family unit) was based, in part, on the incorrect information and bogus documents suggesting that the parties were de facto partners, when, as found by the Tribunal, they were not in such a relationship.  The Tribunal considers this to be significant and gives considerable weight to this factor in favour of cancelling the applicant’s visa. 

    The circumstances in which the non-compliance occurred

  34. The non-compliance occurred when the incorrect information and bogus documents were provided in support of the Subclass 189 visa application which was lodged in February 2016.

  35. When asked if she wanted to provide any further information about the circumstances at the time of the visa application, the applicant said she trusted him, gave him the documents, and thought it was okay to have a future plan with him.

  36. The Tribunal reminded the applicant of the information it had particularised earlier in the hearing under s 359AA of the Act, being the information obtained from Mr Zhao’s visa cancellation proceedings which the Tribunal had explained may also be relevant to the circumstances of the non-compliance. The applicant confirmed she understood the information and why the Tribunal thought it was relevant. When asked whether she wanted comment on the involvement of an agent or the person who assisted her with the visa application, the applicant said she just spoke to Mr Zhao and he took all her things.

  37. The Tribunal did not consider the applicant to be particularly forthcoming with information about the circumstances of the non-compliance. She gave very little context or detail about her dealings with Mr Zhao other than that she gave him documents and thought it was okay to have a future with him. In contrast, the evidence obtained from Mr Zhao’s proceedings, which the Tribunal considers to be more detailed and comprehensive, indicates that the inclusion of the applicant as a de facto in Mr Zhao’s visa application was arranged by an agent and that Mr Zhao was instructed to meet up with the applicant and take photographs together for the purpose of the visa application.

  1. Having regard to all evidence before it, and for reasons discussed in detail above, the Tribunal does not accept that the applicant and Mr Zhao were in a genuine de facto relationship or that they were residing together at the time of the visa application. The Tribunal considers that incorrect information and bogus documents pertaining to the claimed relationship were intentionally provided with the visa application for the purpose of securing the applicant a permanent visa. The Tribunal considers this to be significant and gives substantial weight to this factor in favour of cancelling the applicant’s visa. 

    The present circumstances of the visa holder

  2. The applicant gave evidence that she arrived in Australia in 2010 as a student. She studied at a language school and then attended high school. She went to college and studied hospitality management but did not complete that course. She got an internship and went to the Star (Casino in Sydney) where she currently works. She gave evidence that she has been working at the Star Casino for the last seven to eight years.

  3. The applicant gave evidence that she has several properties. She has a property that was given to her by her great aunt. She also purchased a property in Mascot with the assistance of her parents. She has a mortgage of $500,000 on that property. She and her husband (Mr Cao) are in the process of purchasing two properties. Mr Cao is identified as the purchaser on the Contracts of Sale.

  4. When asked if she had to obtain permission from the Foreign Investment Review Board to continue to hold her properties in Australia, the applicant said her accountant told her that as long as she continues to live there it is an owner-occupied residence so it will be fine.  He told her that if she goes overseas, it will become a foreign owned property and she will have to pay tax, but she is not sure how it all works.

  5. The applicant said her great aunt in Australia is not well, needs to stay in bed and walks on crutches. She said her great aunt currently lives by herself, but the applicant visits her regularly. The applicant said she tries to visit her great aunt before work to prepare dinner for her. She said her great aunt does not trust strangers and, as her relative, she visits her and cares for her. She said her great aunt, who is her grandmother’s sister, does not have any other relatives in Australia. The Tribunal has also had regard to the applicant’s statutory declaration in which she detailed the care and support that she provides her great aunt. The Tribunal has also had regard to the statutory declaration from the applicant’s great aunt (Ms Winnie Wang), who is an Australian citizen, in which she details her relationship with the applicant, the applicant’s family background, the assistance and care she receives from the applicant and the difficulties she would experience if the applicant was not able to remain in Australia.

  6. The applicant gave evidence that she also has her husband, who is a permanent resident, in Australia. In his evidence to the Tribunal, Mr Cao said that the applicant is a very caring person. She takes good care of him, cares for their three dogs and looks after her great aunt. Mr Cao gave evidence that he and the applicant have known each other since 2018 and got married in 2022. Mr Cao gave evidence that he got his permanent residence in 2013 as a dependant on his parents’ investor visas. He was 17 years old when he came to Australia.

  7. The Tribunal has also had regard to the applicant’s statutory declaration in which she sets out a detailed history of her relationship with Mr Cao. She said they met in 2018, moved in together in 2019, got married in February 2022 and that they are planning to have a child together in the coming year or two. It has also had regard to her evidence that Mr Cao has a courier business which has four employees.

  8. The Tribunal has also considered the applicant’s evidence regarding the friendships she has made in Australia and has had regard to the letters of support from her close friends Ms Wu and Ms Lee, her friend and work colleague, both of whom regard the applicant as a very kind and caring person. They provided details of the assistance and care they received from the applicant over the years.

  9. The Tribunal accepts that the applicant has been in Australia for over 13 years, that she completed studies in Australia and that she has established close friendships. It also accepts that the applicant has been employed in Australia. It accepts that the applicant has an Australian citizen relative, her great aunt Winnie Wang, whom she visits and cares for. The Tribunal also accepts that the applicant has assets in Australia, including several properties. It accepts that she is married to an Australian permanent resident, and that she and Mr Cao are planning to start a family together.

  10. The Tribunal accepts that the applicant has established strong personal, emotional, family, and financial ties to Australia. The Tribunal gives weight to the present circumstances of the applicant against cancellation of the visa.

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

  11. There is no behaviour that has been identified as a breach of obligation by the applicant under the relevant provision in the Act. The Tribunal gives this factor neutral weight in its consideration.

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

  12. The Tribunal is not aware of any other instances of non-compliance by the applicant. The Tribunal gives this factor neutral weight in its consideration.

    Time that has elapsed since the non-compliance

  13. The non-compliance occurred upon lodgement of the visa application in February 2016, therefore over seven years have passed since the non-compliance. The Tribunal acknowledges that a long period of time has passed since the non-compliance and gives this consideration some weight against cancellation of the visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

  14. There is no evidence before the Tribunal which indicates any breaches of the law since the non-compliance. The Tribunal gives this factor neutral weight in its considerations.

    Any contribution made by the holder to the community

  15. The Tribunal accepts, as indicated in the written material and oral evidence, that the applicant has made contributions to the community by assisting her elderly great aunt and through her employment. The Tribunal accepts that the applicant has attended charity events. It was submitted, and the Tribunal accepts, that the applicant sponsors several children via World Vision and feeds stray cats. The Tribunal also accepts that the applicant assisted during the pandemic by providing food for homeless people. The Tribunal has also had regard to the letters of support from the applicant’s friends, and accepts that the applicant has supported, cared for, and assisted her friends and members of the community.

  16. The Tribunal gives some weight to the contribution made by the applicant to the community against cancelling the visa.

  17. 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 there would be consequential cancellations under s 140

  18. The Tribunal finds that no other person’s visa will be consequentially cancelled under s 140 of the Act. The Tribunal gives this factor neutral weight.

    Whether there are children whose interests would be affected by cancellation

  19. There are no children whose interests would be affected by the cancellation of the applicant’s visa. The Tribunal gives this factor neutral weight.

    Whether the cancellation would lead to the person’s removal in breach of Australia's non-refoulement or family unity obligations

  20. The applicant has not claimed that cancellation of her visa would lead to a breach of Australia’s non-refoulement obligations.

  21. In relation to family unity obligations, the Tribunal notes that the applicant’s spouse (Mr Cao) is an Australian permanent resident. In the circumstances, the applicant would be able to apply for a partner visa in Australia. The Tribunal acknowledges, as submitted by the representative at the hearing, that the applicant would have to demonstrate compelling reasons as she does not meet the applicable Schedule 3 criteria.[1] The Tribunal notes that if the applicant has any concerns about satisfying this criterion, then she has the option of applying for a partner visa offshore. The Tribunal notes that Mr Cao is a citizen of China and could, if he so wished, return to China to be with the applicant whilst she awaits the outcome of an offshore partner visa application. If Mr Cao is unable or unwilling to travel to China to be with the applicant, the Tribunal considers that any physical separation between them would only be temporary, i.e., for the duration of the visa processing period. The Tribunal does not consider cancellation of the visa would necessarily lead to the applicant’s removal in breach of family unity obligations. Accordingly, the Tribunal gives limited weight to this consideration against cancellation of the visa.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

    [1] Cl 820.211(2)(d)(ii).

  22. In considering the mandatory legal consequences of cancellation, the Tribunal notes the applicant will only become an unlawful non-citizen and liable for detention and removal if she does not depart Australia within the validity of any bridging visa she currently holds or if she is not granted another visa to remain in Australia. If the visa is cancelled, the applicant will be affected by s 48 of the Act, which limits the types of visas she can apply for onshore. The applicant may also be subject to an exclusion period in relation to future temporary visa applications.

  23. The Tribunal notes, however, that a partner visa is one of the specified visas that can be applied for onshore (i.e., it is not affected by s 48 of the Act). Given the applicant’s evidence that Mr Cao is a permanent resident, the applicant would be able to apply for a partner visa onshore. It is also open for the applicant to apply for the partner visa from outside Australia.

  24. The applicant’s representative submitted that the applicant’s partner visa application may be affected by public interest criterion 4020 (PIC 4020) based on the previously provided bogus documents. The Tribunal respectfully disagrees with this view. The requirement that there be no evidence of a bogus document or information that is false or misleading in a material particular having been given pertains to the visa application being applied for or a visa that the applicant held in the 12 months before making their visa application. The Tribunal notes that the bogus documents (as found above) were provided in relation to the Subclass 189 visa which the applicant ceased to hold on 23 February 2021 when she was granted the Subclass 155 visa. As more than 12 months have passed since the applicant held the Subclass 189 visa, any future partner visa applications lodged by her will not be affected (and thereby engage PIC 4020) on the basis of the bogus documents provided in relation to the Subclass 189 visa application. 

  25. The Tribunal considers that the mandatory consequences of cancellation are intended by the legislation. Furthermore, the applicant would still be eligible to apply for a partner visa in Australia on the basis of her relationship with an Australian permanent resident. Whether the visa is granted will be a matter for the decision maker considering that application. For these reasons, the Tribunal gives limited weight to this consideration against cancellation of the visa.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

  26. The applicant gave evidence that her parents are in China, but it would be difficult for her to leave Australia because of her great aunt. The applicant said she has been in Australia since she was 16 years of age and wants to remain here.

  27. In oral submissions to the Tribunal, the representative stated that the applicant has integrated socially in Australia, where she completed high school, has friends, an income and significant family ties. He stated that she is the only family member of an Australian citizen. It was submitted that there would be hardship suffered by the applicant and her family members. The representative raised concerns about whether the applicant would be able to satisfy the criteria for an onshore partner visa application which, if not granted, may eventually result in the applicant’s departure from Australia, which would in turn impact the applicant’s relationship with her husband and care of her great aunt. It was also submitted that the applicant has properties and the status of how she is meant to deal with them is ambiguous and if she departs Australia she may have to dispose of the properties.

100.   Having considered the submissions and oral evidence, the Tribunal accepts that the applicant has strong emotional, personal, family, and financial ties to Australia. The Tribunal accepts that if the applicant has to depart Australia for a long period, this may cause personal, emotional, and financial hardship for her, her husband, and her great aunt. However, as discussed above, the applicant is not precluded from applying for a partner visa onshore, and whether that visa is granted will be a matter for the decision maker considering that application. The Tribunal gives some weight to the hardship that may be caused against cancellation of the visa.

Overall consideration

101.   The Tribunal has carefully considered the evidence before it and has weighed up the circumstances for and against cancellation of the applicant’s visa.

102.   The Tribunal accepts that the applicant’s present circumstances and the hardship that may be experienced by the applicant and members of her family if her visa is cancelled (and she has to return to China) weigh against cancellation of the visa. The Tribunal has also given weight to the applicant’s contribution to the community, including her employment, against cancellation.

103.   However, the Tribunal considers that these factors are outweighed by the circumstances for cancellation of the visa. In this case, information was provided with the visa application which was incorrect, and documents were provided which were bogus, which led to the applicant, whom the Tribunal found was not in a de facto relationship with Mr Zhao, being granted a permanent residence visa. Had the Department been aware of the incorrect information and bogus documents, the applicant would not have been granted the visa. These factors, in combination, weigh strongly in favour of cancelling the applicant’s visa. The Tribunal further notes that the applicant has the option of applying for an onshore partner visa on the basis of her relationship with Mr Cao, who is an Australian permanent resident.

104.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

105.   The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

R. Skaros
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.

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.

Areas of Law

  • Immigration

  • Administrative Law

  • Statutory Interpretation

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Statutory Construction

  • Natural Justice

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