Ho (Migration)

Ho (Migration) [2021] AATA 2661 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ngoc Trieu Ho
Mrs Thi Thu Van Nguyen
Miss Ngoc Van Khanh Ho
Mr Dang Khoa Ho
CASE NUMBER:  2101576
HOME AFFAIRS REFERENCE(S):          BCC2020/782910
MEMBER:Michael Cooke
DATE:30 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 30 June 2021 at 12:26pm
CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – incorrect answer and bogus document in visa application – English language test result and certificate – applicant sat test in Australia and provided unsuccessful result to agent – agent provided incorrect information about successful test result in Vietnam in application – applicant’s reckless indifference and possible collusion – discretion to cancel visa – applicant ceased working with sponsor two months after visa granted, now working in different job with different employer – members of family unit – hardship if cancellation affirmed – best interests of children, especially education – decision under review set aside for first applicant, no jurisdiction for other applicants
LEGISLATION
Migration Act 1958 (Cth), ss 5, 98, 101(b), 103, 107, 108, 109(1), 120, 140(1), 375A
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 186.213, Schedule 4, criterion 4020
CASE
Gill v MIBP [2016] FCAFC 142
Kaur v MIBP [2019] FCAFC 53
Koirala v MIBP [2014] FCCA 842
MIAC v Khadgi (2010) 190 FCR 248
Singh v MIBP [2015] FCCA 2776
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant breached ss.101 and 103 of the Migration Act because he provided incorrect answers and bogus documents regarding his visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled. This was as a consequence of that cancellation and not by a decision but rather by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The Tribunal issued an Invitation to the applicant as follows:
INVITATION TO COMMENT ON VALIDITY OF S.375A CERTIFICATE – MR NGOC TRIEU HO, MRS THI THU VAN NGUYEN, MR DANG KHOA HO AND MISS NGOC VAN KHANH HO
I am writing in relation to the applications for review made by you in respect of decisions to cancel Subclass 186 - Employer Nomination Scheme visas.
On the Department file (BCC2020782910) is a s.375A certificate, signed and dated 6 May 2021. It states that it would be contrary to the public interest to release the material. The Tribunal’s preliminary view is that the certificate is valid.
A copy of the certificate is attached, and you are invited to comment on the validity of it by 17 May 2021.
The applicant’s representative commented as follows:
I wish to first sincerely apologise for the delay.
I had sought my client’s advice in relation to s 375A certificate and was advised that my client does not have any comment on the validity of the validity of the certificate.
The applicants all appeared before the Tribunal on 13 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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?
On 5 November 2016, the visa applicant’s (the applicant’s) representative lodged an application for an ENS Temporary Residence Transition (subclass 186) visa using the Department’s online lodgement facility, and provided the following answers on the electronic visa form (Application for Permanent Employer Sponsored or Nominated Visa):
Under the heading ‘English Test Details’ at page 13 of the document, the representative provided the following answers:
Give details of the most recent English test
Name of test:
IELTS
Date of test:
09 Jan 2016
Test reference number:
16VN008963HON101A
Country where test was undertaken:
Viet Nam
Language ability:
Competent
The applicant has insisted that he only ever sat one test (in Australia) and that the results of that particular test result document was given to his representative for submission to the Department after he requested him to submit same. The Departmental file discloses that the applicant’s representative (Mr Bui) submitted the form (Application for Permanent Employer Sponsored or Nominated Visa), electronically, on 5 November 2016. The Tribunal observes that the legitimate IELTS test result further indicated that an IELTS test score usually “is accepted by institutions…for a period of two years from the date of the test”.
Based on the above information, as well as meeting other relevant criteria, the applicant was granted the ENS Temporary Residence Transition (Subclass 186) visa on 15 June 2017.
Subsequent information received by the Department:
The Department subsequently initiated verification checks with IDP Education Ltd, the business responsible for administering the International English Language Testing System (IELTS) tests to verify the test results submitted in support of the applicant’s application.
On 4 October 2019, IDP Education Ltd contacted the Department and advised that the applicant did not sit the IELTS test on 9 January 2016 as claimed on the Vietnam-sourced and that the results contained within (a successful score) were fraudulent.
Possible non-compliance with section 101(b):
The delegate considered that the applicant provided incorrect information in his application for an ENS Temporary Residence Transition (Subclass 186) visa when he provided details of the results at the section of the form titled ‘English Test Details’ for an IELTS test that he (purportedly) claimed to have undertaken on 9 January 2016.
The above information proved to be incorrect, as verification checks undertaken by the Department indicate the applicant did not undertake the IELTS test on 9 January 2016 as claimed in the visa application.
Possible non-compliance with section 103:
The delegate also considered that the applicant had not complied with section 103 of the Act, because in support of his application for an ENS Temporary Residence Transition (Subclass 186) visa, he submitted the following bogus document:
·IELTS test result document “16VN008963HON101A” for a test purportedly undertaken on 9 January 2016.
The delegate was satisfied that this was a bogus document within the meaning provided by paragraph (b) of section 5(1) of the Act, which states:
“is counterfeit or has been altered by a person who does not have authority to do so”
The Tribunal notes that verification checks undertaken by the Department indicated that the applicant did not undertake the IELTS test on 9 January 2016 as he claimed on his visa application form. IDP Education (the IELTS test provider in Vietnam) had advised the Department (following investigation) that the applicant did not undertake the test on this date and that the above listed document appeared to be a bogus document as described in s.5 of the Act, as it appeared to be “counterfeit, or altered by a person who does not have authority to do so”, because it was not genuinely issued in respect of the applicant’s claimed English language ability.
Based on the above information, the delegate concluded that the applicant provided incorrect answers and submitted a bogus document in support of his ENS Temporary Residence Transition (subclass 186) visa application. The delegate found that he had not complied with sections 101(b) and 103, and accordingly, his ENS Temporary Residence Transition (Subclass 186) visa was liable for cancellation under section 109 of the Act.
Invitation to Comment on Information under section 107
On 14 December 2020 an Invitation to Comment on Information under section 107 was emailed to the applicant, as detailed below:
On 23 September 2020 you were notified of, and invited to comment on, the Notice of Intention to Consider Cancellation (NOICC) of your Employer Nomination Scheme Temporary Residence Transition (subclass 186) visa granted on 15 June 2017.
On 7 October 2020 your migration agent, Kelly Tran, replied by email on your behalf and included nine attachments, which including a response to the NOICC by your migration agent and a statutory declaration by yourself dated 20 July 2020.
The Department has received the following information that is considered relevant to the proposed cancellation of your visa:
·In your statutory declaration in response to the NOICC you state:
Since I arrived in Australia, I have been working hard while taking each and every single opportunity I had to improve my English and working skills to be a productive and proud member of the Australian community. I had taken a Certificate III in Advanced English for Further Study at NSW TAFE which was completed on December 2018.
In support of this you provided a copy of a Certificate III in Advanced English for Further Study (Certificate III), issued to you on 6 December 2018 and an information leaflet issued by NSW TAFE detailing the Course Description, Entry Requirements and Offering Entry Requirements and Information about the Certificate III in Advance English for Further Study course.
Under ‘Entry Requirements’ it states:
There are no essential entry requirements or limitations for this course.
·Entrants should have:
·A minimum English language proficiency of ISLPR 2+, IELTS 5 or CEFR B1+ across all skill levels of Speaking, Reading, Listening and Writing, and
·A proposed study pathway.
Departmental records and the information provided in support of your NOICC response to date do not indicate that you met the relevant entry threshold of an IELTS score of 5 in each skill level.
The delegate indicated that this information was relevant to the proposed cancellation of his visa because in his NOICC response he declared he subsequently studied English and successfully acquired the Certificate III through NSW TAFE, but did not provide evidence of holding the English level required to undertake this course.
Section 108 of the Migration Act 1958 provides:
The Minister is to:
(a) consider any written 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.
Does the visa holder agree that there was non-compliance? Yes
If yes, reasons for non-compliance:
In his Statutory Declaration in response to the NOICC, the applicant stated:
·He engaged a migration agent who prepared the application on his behalf. He met with his agent who requested he undertake an English test for the application. The agent did not advise what the required scores for the test were. He sat an IELTS test and gave the results to his agent. He did not provide his agent the IELTS test which was submitted in support of his application.
·The agent was engaged on behalf of his employer, and he considered himself wholly dependent on the instructions of the employer and agent in relation to his visa application. He did not undertake any thorough research into the requirements of his visa applications as he considered the lawyers were taking care of the process and he did not have reason to doubt their integrity.
·The agent acted without his knowledge or instructions by submitting the bogus IELTS test.
·He acknowledges the IELTS test provided with his visa application was a counterfeit document, as he did not sit that test. He did not instruct his lawyer to obtain or provide the fraudulent document. He provided him with an authentic test result and was not advised of any issue with it. He has since become aware his original English test did not meet the requirements.
The applicant has repeated these claims in oral evidence as well at the recent hearing.
The applicant’s (now) migration agent has submitted that the applicant was unaware of the non-compliance under sections 101(b) and 103, but that grounds exist regardless. The applicant, therefore, accepted he was non-compliant under sections 101(b) and 103 of the Act.
The applicant has stated he accepts he was non-compliant with sections 101(b) and 103 of the Act, as put to him in the NOICC.
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 ss.101 and 103(b).
Findings as to whether there was relevant non-compliance.
The applicant has provided a comprehensive submission outlining the sequence of events leading up to the visa cancellation as follows:
On 17 December 2020, the applicant (through his new representative) responded to the abovementioned NOICC by providing a Statutory Declaration from the primary applicant and other supporting documents demonstrating the circumstances in which the non-compliance occurred, as well as evidence to support a decision not to cancel the parties’ visa. The representative opined as follows:
Mr HO wishes to maintain his claims as shown in the Decision Record dated 10 February 2021 as below:
·     He engaged a migration agent who prepare the application on his behalf. He met with this agent who requested him undertake an English test for the application. The agent did not advise what the required scores for the test were. He sat an IELTS test and gave the results to his agent. He did not provide his agent the IELTS which was submitted in support of his application.
·     The agent was engaged on behalf of his employer, and he considered himself wholly dependent on the instructions of the employer and agent in relation to his visa application. He did not undertake any thorough research into the requirements of his visa applications as he considered the lawyers were taking care of the process and he did not have reasons to doubt their integrity.
·     The agent acted without his knowledge or instructions by submitting the bogus IELTS test.
·     He acknowledges the IELTS test provided with his visa application was a counterfeit document, as he did not sit that test. He did not instruct his lawyer to obtain or provide the fraudulent document. He provided his lawyer with an authentic test result and was not advised of any issue with it. He has since become aware his original English test did not meet the requirements.
· Despite the fact that the bogus document was not provided by Mr HO, he accepts that he was non-compliant with section 101(b) and 103 of Migration Act 1994 (Cth) when he was communicated by the Department regarding the result of IELTS test dated 9 January 2016 which had been found a counterfeit document. Mr HO confirmed that he did not sit this test and never saw or heard of this test result before. The applicant submits that he did not collude with his agent in fabrication of the bogus document or instructed his agent to do so.
·     Before coming to Australia, after having graduated with a Bachelor of Business and Science in 1999, Mr HO had a long and stable career as a producer at Phuong Nam Film company from 1999 to 2005, then as Media Planning Manager in Thanh Nien Film company from 2007 to 2014. Mr HO also worked as Financial Consultant for Prudential Vietnam from 2005 to 2007 where he found his strengths and interests in financial area. Being invited and accepting to join JT King Finance Pty Ltd in the position of Marketing Specialist was naturally a professional advancement based on his pre-existing valuable skills set combined from the two main areas in his former career life: media and finance.
·     It is submitted that this was what Mr HO could do best professionally with or without English language competency. During his work at JT King Finance Pty Ltd, Mr HO served a clientele predominantly speaking Vietnamese in western suburbs of Sydney, and English was not a practical skill required by his job during that time. He did his job well and was appreciated by his clients and employer who promised to sponsor for his permanent residency application. Naturally, it was not in the applicant’s mind the need to make a thorough research into what were the statutory requirements for the grant of Subclass 186 visa, including English language. Further, with the complexity of immigration law and visa application procedure, it is reasonable for Mr HO to wholly rely on his agent who worked closely with his former employer to take care of his visa application.
· Section 98 of the Act stipulates that ‘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 caused to be filled or if it is otherwise filled on his or her behalf’. On that basis, although Mr HO did not provide the bogus document, any work of his agent done on his behalf is taken to be done by himself. However, we also note that in Gill v MIBP [2016] FCAFC 142, the Court held that the misconduct of the agent can affect the operation of this provision in circumstances where the applicant was found not to have colluded in the fraud or shown ‘indifference’ as to his agent acting unlawfully or dishonestly.
The Tribunal makes the following observations. In the present case, the applicant submits that he had placed complete trust in his (then) migration agent with a belief that this person would carry out his visa application paperwork diligently and with integrity. He claims that the fact that his (then) representative provided a counterfeit document to enable the applicant to meet the English requirements of Subclass 186 visa application was not known by him at the time of application.
In support of his case he has informed the Tribunal that (after being requested to do so) he sat an IELTS English test in Australia on 7 June 2016. He insisted in oral evidence that he then provided the result of this test to his (then) agent. He claimed (in his oral evidence) that he had fulfilled the agent’s request by providing the authentic test result which would be used (presumably) for the application of his Subclass 186 visa. He has also insisted that, due to his ignorance of migration law requirements, he entrusted all the paperwork to a registered migration agent with whom he had successful long-term dealings. He awaited the outcome which was eventually successful as had done for his Subclass 457 visa application. He had paid the account in two cash tranches when advised to do so by his (then) agent. He was later granted the sought-after Subclass 186 visa.

He then heard no more from the Department following the grant of that visa. Abruptly, during the processing of his citizenship application, he was required to make comments on the (subsequently discovered) fraudulent IELTS result which the Department claimed he submitted pursuant to his Subclass 186 visa application.
The present circumstances of the former visa holder
The Tribunal has considered the case in the light of the circumstances of the submission (by the applicant) of two IELTS test results - one which was bogus and the other valid and oral evidence. The Tribunal is aware that the applicant (Mr Ho) was in Vietnam at the time of the purported issuance of the bogus Vietnamese IELTS test. Its provenance is indicated on the document by a Vietnamese ‘IDP Education Vietnam’ stamp in the box labelled ‘Centre Stamp’. IDP Education Vietnam has indicated to the Department that the certificate is bogus.
The Tribunal observes from perusing the document that the photograph used on the bogus 9 January 2016 document is not unlike the one used on the applicant’s passport issued in 2012. The legitimate IELTS test result has a stamp called ‘Navitas English Sydney Test Centre’ - emblazoned on it. The photograph that appears on the genuine Australian IELTS document bears a likeness to the contemporary appearance of the applicant in the hearing.
In investigating any motivation on the part of the applicant to collude in the visa application fraud (with his then agent) it seems feasible to the Tribunal that the applicant had a premonition that he would fail the compulsory IELTS test. The Tribunal bases this supposition on his agent’s submission which pointed to the fact that the applicant’s client base was within the Western Sydney Vietnamese community and his main business language was Vietnamese. He obviously spoke his native Vietnamese at home. Under those circumstances it could well be plausible for him to have not acquired competence in English to a Level 5 band score - when tested.
The Tribunal is satisfied that, in such circumstances, it is feasible that he might have gone to the trouble of securing a bogus IELTS test result certificate when staying in Vietnam. One which indicated he did meet the requirements for the visa (Band 5) – or to put it succinctly – a “back up plan”. The applicant, in his own defence, is adamant he was never involved in submitting fraudulent documentation. He has insisted throughout that he was clueless about the required IELTS test score and did not know how to interpret the test outcome from the test results. The Tribunal is not persuaded by this claim in view of the importance of the test to his visa application and the applicant’s level of education. The fact that the applicant enrolled in an English language course not long after grant of the visa - gives weight to this conclusion.
The Tribunal finds it conceivable that the submission of a bogus IELTS document was part of an elaborate ‘back-up plan’ should the applicant eventually fail his Australian IELTS test – which he did. He had the “winning ticket” being a fraudulent Band 5 Vietnamese IELTS test result ready to be submitted were he to fail the Australian IELTS test. The Tribunal’s view is that, on balance, the applicant knew that his failure in any genuine IELTS - was either probable or inevitable.
The applicant has indicated in his submissions that the overarching reason for his emigration was to seek a new life working as a financial adviser for his sponsor within the Australian Vietnamese community. In such a milieu presumably, he spent most of his time speaking Vietnamese. Furthermore, he was living in the Vietnamese community around Cabramatta NSW. Opportunities to improve his English in such an environment would be scant - as indicated by the outcome of his Australian IELTS test result. The delegate indicated a concern that the applicant, sometime later, undertook (successfully) a Certificate III course in Advanced English for Further Study. Research by the delegate indicated the applicant did not have the prerequisite for that course – a successful IELTS Band 5 result.
The Tribunal has considered the delegate’s keen interest in this event. The delegate was sufficiently concerned by the circumstances surrounding the applicant’s TAFE enrolment that he issued a s.120 Invitation to Comment on this event. The delegate seems to have juxtaposed the decision to do the Certificate III with the earlier IELTS Band 5 failure. The applicant at first glance, according to the TAFE instructions, was ineligible to sit the course if he did not have an IELTS test score of Band 5.
The Tribunal surmises that the delegate (in overview) felt the applicant doing such a course soon after the failed IELTS test was just too coincidental. It appeared that he was trying to ‘cure’ his failure in the Australian IELTS test by proving he met the standard - were the issue to arise at some future time. In other words, a further ‘back up’ plan if he failed the Australian test. Eventually, some years later, the Vietnamese IELTS certificate was revealed as fraudulent following a Departmental audit of IELTS test result certificates. The applicant’s test sheet was one of these. Importantly, in his decision the delegate made the point that the applicant did not have the required entry criteria for that course – a Band 5 IELTS result. Yet he pursued the qualification relentlessly. The Tribunal is satisfied that the ‘back up plan’ also covered any possible future discussion about the applicant’s linguistic ability. If that took place the positive Certificate III course result would have been submitted - in mitigation. This is, of course, exactly what happened.
The applicant responded to the delegate’s Notice by way of Statutory Declaration and explained that:
·He gave the his Australian IELTS test of 25 June 2016 (the valid one) to the TAFE authorities.
·He claimed an alternative TAFE pathway was available to persons who did not have an IELTS score of at least Band 5.
The delegate (in the decision record) expressed concern that the applicant was able to sit the course without having a significant prerequisite – Band 5. The delegate seems to suggest that sitting the course was impossible when the applicant did not have an IELTS Band 5 – the entry standard. The delegate was unaware there was, in fact, an alternative protocol available for those who did not have Band 5.
In situations of failure at an IELTS test, Tribunal experience indicates such lapses are usually remedied by sitting a second test. However, and importantly in the instant case, the requirement was that results be finalized and presented at time of application. So, a further test for the applicant if his Australian test failed - was impossible to schedule. Thus, a fraudulent IELTS was submitted to remedy the immediate Band 5 requirement problem. This eventuality, when juxtaposed with the applicant’s later decision to do the Certificate III, leads the Tribunal to the inexorable conclusion that the delegate’s suspicions were sound.
The applicant has explained in his Statutory Declaration that, when presenting for the TAFE course, he submitted the legitimate test results from his Australian IELTS test. This, of course, indicated he was below Band 5. He was accepted for the course after evaluation by the teacher (a TAFE alternative protocol) and passed the course successfully in October 2018. The applicant’s decision to sit the course supports the Tribunal’s earlier point that, having dealt primarily with Vietnamese speaking clients for 3 years, his English needed improving long-term. It points to the Tribunal view he was aware he had limited opportunity of success in the Australian IELTS test. It is implausible that as part of this scenario he remained (all the while) unaware that he had failed to achieve Band 5 and that this was a requirement for the grant of the Subclass 186 visa.
The Tribunal has collated a chronology of the principal events in the case:
·On 25 June 2016 (not 25 July as appears elsewhere in documentation) the applicant sat an authentic IELTS test in Australia. He does not meet the required Band 5 standard.
·On 5 November 2016 the applicant’s visa application (along with the bogus Vietnamese IELTS test) is submitted by his agent. It states he meets the Band 5 criterion.
·The applicant’s agent does not inform the Department of the authentic IELTS test he performed in Australia and failed.
·On 15 June 2017 the applicant is granted a Subclass 186 visa.
·Around July 2018 the applicant begins his Certificate III course in Advanced English for Further Study. He completes it successfully in December 2018.
·On 4 October 2019 the Departmental IELTS investigation receives notice that the Vietnamese origin IELTS document is bogus.
·On 8 October 2019 a Notice of Intention to Consider Cancellation of Citizenship Approval (NOICC) is issued to the applicant based on the bogus IELTS information.
·On 22 February 2020 a NOICC for the Subclass 186 visa is issued citing bogus information.
·On 10 February 2021 the applicant’s Subclass 186 visa is cancelled by the Department for breach of the Act in submitting a bogus document (the Vietnamese IELTS test).
The applicant has claimed that he first heard of the problem with his bogus IELTS test when the Department sent him a s.120 Notice in 2019. This occurred during the processing of his citizenship application. A Departmental audit/investigation had disclosed that bogus IELTS test results were being submitted during the processing of visas. The Tribunal does not know how long the Department audit was ongoing at the time the applicant was sent the NOICC on 8 October 2019. The Tribunal, furthermore, is unaware of any interaction between the applicant’s then agent and the Department prior to the issuing of the Notice.
The applicant has insisted (in his oral evidence) that neither he nor his family would have ever considered doing something so unethical (participation in visa fraud). Yet the evidence is that his agent submitted a bogus IELTS certificate to the Department. This action has now impugned his application for citizenship and his dream of a new life for the family in Australia. The family have informed the Tribunal that they sold everything to come to Australia so their commitment to a new life in Australia is total.
The Tribunal has contemplated the previous adverse scenarios and the “indifference” shown by him to his agent’s activities by providing the Department with incorrect information and a bogus document. The Tribunal regards this as a significant consideration when reviewing the cancellation. The Tribunal is satisfied that motivation for the fraudulent behaviour between the applicant and his agent was a successful visa outcome despite the applicant not meeting prerequisite criteria.
The Tribunal in its effort to fully understand the case has had the benefit of viewing the ‘Application for Permanent Employer Sponsored or Nominated Visa’ form which it found on the Department file. The details contained within that form disclose that the visa application was facilitated by a migration agent, Thu Thanh Bui, of Bui Lawyers. He was (at the time of submission) registered at the Office of the Migration Agents Registration Authority as (MARN) agent number 1277183. The Tribunal has checked this name and registration number online and this individual does not appear presently on the Office of the Migration Agents’ Authority website (OMARA) as (currently) a registered migration agent.
The applicant has claimed that his application was entirely prepared and submitted electronically by his agent (Mr Bui) and at no stage did he revise it or sign it. He was called in to his agent’s office and (he informed in oral evidence) was asked to pay $10,000 cash as an initial progress payment. A second cash payment occurred later for the remainder of the fee. Communication was otherwise by telephone. The prior agent’s final submission of the Departmental paperwork work appears to have been furnished electronically through the Departmental portal. Thus, presumably, it did not necessitate the actual presence of the applicant nor a manual sign-off or any other checks or explanation when submitting the document on 5 November 2016. However, such electronic transmission does not curtail the responsibility of the applicant for the submission of the application (see Singh v MIBP).
The Tribunal was informed in oral evidence that the applicant’s (then) sponsoring employer (JT King Finance Pty Ltd) had its premises near the agent’s offices. His then sponsoring employer had introduced the applicant to this agent. This agent (he claimed in oral evidence) had complete carriage of his visa application paperwork from the time he was in Vietnam until his (successful) application for permanent residency via Subclass 186.
The Tribunal has heard the applicant’s recounting of his behaviour with his former agent in oral evidence. It has also considered his representative’s submission elaborating his engagement with his former agent. It finds that the behaviour of the applicant in leaving the important carriage of his permanent residency application to his agent (in the manner described) mirrors the behaviour elaborated in Koirala v MIBP [2014] FCCA 842 at [6]–[7]. In that case the Court concluded that it was open to the Tribunal to find that the applicant’s lack of involvement or failure to take any interest in the visa application demonstrated that the applicant had instructed the agent to lodge the application and that he was ‘indifferent’ as to how that agent went about that task. The applicant has claimed (in mitigation of the apparent fraudulent behaviour) that his personal behaviour was unremarkable and a response to his total lack of knowledge of Australian immigration procedures. Added to this (in the Tribunal’s opinion) is the applicant’s obvious poor command of English revealed in the legitimate IELTS test. He steadfastly claims he put his visa affairs in the hands of an expert who had facilitated (successfully) all his migration matters on behalf of his employer. He then sat back and awaited the later successful outcome.
Alarmingly, during this process, a fraudulent IELTS test was submitted by the agent on behalf of his client which contributed directly to the grant of permanent residency to the applicant pursuant to Subclass 186. In Singh v MIBP [2015] FCCA 2776, the Court found at [56] that ‘[i]t is consistent with the conclusions of Buchanan J in Trivedi that the provisions of s 98 of the Act should apply to PIC 4020 and that an applicant should be deemed to have completed an application form where he or she causes a form to be filled out or his/her behalf’ (Tribunal emphasis).The Tribunal is satisfied that in the light of Trivedi this subterfuge (by the agent) is “purposeful falsity”.
The Tribunal observes that the applicant later attempted to cure his obvious lack of English fluency (displayed in the valid IELTS test) by successfully studying a Certificate III course in Advanced English for Further Study. The Tribunal finds this event significant considering his claim that he knew nothing about the language requirements for a Subclass 186 visa and he did not know how to interpret the results on the IELTS test results form. Furthermore, he has claimed was unaware he failed to achieve the required Band 5 yet his agent had gone to the trouble of submitting a bogus (Vietnam-generated) IELTS test instead - on his behalf.
In Gill v MIBP [2016] FCAFC 142 the Full Federal Court held that there is a relevant distinction between ‘indifference’ as to how a migration agent (acting lawfully and properly) can achieve a visa applicant’s desired outcome and ‘indifference’ as to whether that outcome is achieved by acting unlawfully or dishonestly. The Court concluded that, in order for there to be a finding that the applicant was complicit in the migration agent’s fraud, the applicant must be ‘indifferent’ to that agent acting unlawfully or dishonestly.
The Tribunal finds the applicant’s behaviour, under the above circumstances, can be viewed in the light of Kaur v MIBP [2019] FCAFC 53. Here the Federal Court found that what is meant by indifference in this context is “reckless indifference” as to the truth of the representation which was that the applicant had the necessary band score in a genuine IELTS test when he did not.
Conclusion on non-compliance
The Tribunal has considered the claimed non-compliance within the rubric of Gill v MIBP [2016] FCAFC 142. The applicant has been questioned extensively in oral evidence about his claims and the circumstances that caused the issuance of the s.107 Notice. The applicant agrees that there was a breach.
The Tribunal is satisfied (when the totality of the evidence is considered) that the applicant has shown ‘reckless indifference’ as to his agent acting unlawfully or dishonestly - by submitting a bogus document and incorrect information to the Department.
The Tribunal has weighed this statement with his oral evidence and is satisfied that there was non-compliance by the applicant in the way described in the Notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does arise.
Therefore, the Tribunal finds that the applicant has not complied with sections 101(b) and 103 of the Act, and grounds exist to cancel his visa under section 109 of the Act.
Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
The correct information
Based on all the evidence, the Tribunal finds that the correct information at the time the applicant lodged his ENS Temporary Residence Transition Subclass 186 visa (5 November 2016) is that he had not undertaken the IELTS test on 9 January 2016 (in Vietnam) in which it appeared that he achieved a ‘vocational’ English language level (Band 5). In fact, he later evidenced a valid Australian IELTS test result which indicated he did not meet the required Level 5 band score after all. Therefore, the correct information is radically different from what was provided in his visa application.
The Tribunal gives this consideration significant weight in favour of cancellation.
The content of the genuine document (if any)
The applicant had already provided a copy of an IELTS test in support of his ENS Temporary Residence Transition (Subclass 186) visa application which he claimed to have sat on 9 January 2016. Subsequently, after the grant of the visa, the Department undertook verification checks and was advised by IDP Education (Vietnam) that the applicant did not undertake the test in question on 9 January 2016.
In his response to the NOICC the applicant has confirmed that he did not sit this IELTS test in Vietnam. The IELTS company in Vietnam has indicated to the Department that the test provided in support of his application was counterfeit.
In his NOICC response, the applicant provided a copy of an IELTS test he undertook on 7 July 2016 (Test Report Form number 16AU002096HON205G). This test shows scores of 4.5 for listening, 4.0 for reading, 5.0 for writing and 4.0 for speaking.

The Tribunal is satisfied that this document is genuine. Unfortunately for the applicant the score in the genuine test does not correlate with the requirements for ‘vocational English’ at that time which was Band 5.
The Tribunal finds that had this (genuine) IELTS document been submitted with his application it would have been refused for failure to meet Band 5.
The Tribunal gives this consideration significant weight in favour of cancellation.
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
One of the eligibility criteria for the grant of an ENS Temporary Residence Transition (subclass 186) visa includes regulation 186.222, which states:
186.222
At the time of application, the applicant:
(a) had vocational English; or
(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.
Vocational English has the meaning set out in Regulation 1.15B, as follows:
Reg 1.15B Vocational English
(1) A person has vocational English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the person is an applicant for a visa; and
(ba) for a person who was invited by the Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and
(bb) for a person to whom paragraph (ba) does not apply — the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2) A person also has vocational English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
The Minister’s written Instrument (IMMI15/005), which was in force at the time of visa grant (15 June 2017) specifies:
·the permissible language tests include an International English Language System (IELTS) test;
·the score required to demonstrate ‘vocational English’ is an IELTS test score of at least 5 in each of the four test components of listening, reading, writing and speaking.
The Tribunal notes that, importantly, the applicant did not hold a passport of the type specified by the Minister in the instrument in writing for subregulation 1.15B. Therefore, the applicant was required to achieve an IELTS test score of at least 5 in each of the four test components.
Based on the applicant’s incorrect answers and bogus supporting document, purporting he had sat an IELTS test on 9 January 2016 and achieved a score of 5.5 for listening; 5.5 for reading; 6.0 for writing and 5.0 for speaking, the delegate assessed the applicant as having demonstrated he possessed ‘vocational English’ and thus met Regulation 186.222.
Furthermore, as there was no information before the delegate at the time of his assessment to indicate any answers the applicant had provided in the application were incorrect or any of the supporting documents were bogus, the delegate went on to assess whether the requirements of Regulation 186.213 were met and which states:
186.213
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4020 and 4021.
Public Interest Criterion 4020 requires:
4020
(1) 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;
The Tribunal finds that, self-evidently, the delegate had been unaware that the applicant had provided bogus and incorrect information. He claimed (via his agent) to have sat the IELTS test in Vietnam on 9 January 2016. He then provided a bogus supporting IELTS test report form (via his agent) to that effect.
The Tribunal finds that any assessment of whether the applicant met the requirements of Regulation 186.222 and 186.213 would have been impacted adversely – if such fraudulent information were to have been discovered. This is because meeting the English language requirement was crucial to the grant of the ENS Temporary Residence Transition (Subclass 186) visa.
The Tribunal is satisfied that the applicant provided incorrect information and a bogus document in his application for the visa. Consequently, the delegate made the decision to grant the visa based on bogus and incorrect information. The applicant thus gained a significant immigration benefit (namely permanent residence) to which he would otherwise have not been entitled.
In view of this finding the Tribunal give this consideration significant weight in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant provided both incorrect answers and a bogus document in support of his ENS Temporary Residence Transition (Subclass 186) visa application which was lodged on 5 November 2016.
The Tribunal finds that the agent provided the incorrect answers and bogus documents on the applicant’s behalf. However, there is no evidence (other than his say-so) before the Tribunal to indicate that it occurred without the applicant’s knowledge. Sections 98, 99 and 100 of the Act clarify that by engaging an agent to submit an application on his behalf, in so doing the applicant would cause the agent to provide the supporting documents to the Department.
The Tribunal is aware that the applicant claims the agent misled him regarding his eligibility for the visa. However, the information regarding the visa eligibility is publicly available on the Department’s website. The applicant could have readily checked this himself, prior to submitting the application but instead showed ‘reckless indifference’ to the conduct of his agent. The Tribunal notes that the applicant is university educated in Vietnam.
The Tribunal does not accept, therefore, that the non-compliance occurred due to ‘circumstances beyond the visa holder’s control’.
When the full circumstances of the submission of the application have been revealed the Tribunal gives this consideration considerable weight in favour of cancellation.
The present circumstances of the applicant
The applicant arrived in Australia on 1 July 2014 with his wife and children, then aged nine and eleven respectively. Departmental records indicate that since they arrived his family has departed only once in December 2015 - for a period of approximately one month.
The applicant has indicated that he continued to work as a Marketing Specialist for approximately one year after his visa was lodged by his sponsor. He stated that he ceased his employment with the sponsor firm in August 2017, after the approval of the visa. He was then employed by Excel Baker in their factory. After that, he proceeded to Bakers Maison factory where he has been working as a machine operator until the present time.
In his response to the NOICC, the applicant provided evidence he has undertaken and obtained a Certificate III in Advanced English from TAFE NSW. This indicates the applicant has taken steps to improve his language ability independent of the visa requirements though this was some time after the grant of the visa.
He has indicated that, prior to migrating to Australia, the family sold all their assets in Vietnam, including their house in order to fund the move.
On 6 July 2018 the applicant and his family made an application for Australian citizenship. This application is currently under assessment by the Department, pending the outcome of this review.
The family have been residing in Australia for approximately eight years. The Tribunal accepts that they have made connections to the community. The Tribunal is informed that his wife works full-time and his children are in the process of completing their schooling here. He has provided certificates indicating the children’s participation in various education activities and competitions. He indicates that they have been model students.
The applicant informs that his children having spent the past 8 years being educated in Australia and now consider Australia to be their home. He considers that cancelling their visas (because of the non-compliance by a parent) would cause them extreme psychological hardship and disadvantage. This would result from removing opportunities for them to continue doing well in their current studies and contributing to Australian society in the future.
The Tribunal observes, however, that the children’s visas were granted purely on the basis they were ‘members of the family unit’ of the primary applicant. Their visa status, therefore, has been dependent entirely on the applicant as they have not been assessed for, or granted visas in their own right.
The applicant has advised in oral evidence that he considers Australia to be his family’s new home rather than Vietnam.
The Tribunal is aware that the applicant and his family will cease to hold permission to work, study and reside in Australia - if his visa were cancelled. From the evidence before it the Tribunal is satisfied the applicant and his family will experience a significant degree of hardship (both financial, psychological, emotional or other hardship) in the event his visa is cancelled.

100. The Tribunal gives this consideration heavy weight against cancelling 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
101. There is no information before the Tribunal of any other instances of non-compliance by the applicant subsequent to the issue of the NOICC.
102. On 14 December 2020 a Notice under s.120 was sent to the applicant requesting him to comment on information he provided in response to the NOICC sent on 23 September 2020. The applicant provided a response to the s.120 Notice to the delegate on 17 December 2020. After assessing the documents contained within this response, the Tribunal is satisfied the applicant has complied with his obligations under Subdivision C of the Act, in that he has responded to the NOICC without making any incorrect statements.
103. Taking all of the above information into consideration, the Tribunal give this consideration some weight against cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
104. In his application for his ENS Temporary Residence Transition (Subclass 186) visa, the applicant declared ‘yes’ to the following statement:
‘Agree to take up the position for at least two years’

105. The Tribunal is persuaded that this declaratory statement in his NOICC response must be juxtaposed with the applicant’s advice that he intended to quit working for his sponsor prior to the visa application. In fact, he ceased working for his sponsor in August 2017 approximately two months after the grant of the visa. This action shows a level of non-compliance with the requirements for the grant of the visa.
106. In view of this behaviour the Tribunal gives this consideration some weight in favour of cancellation.
The time that has elapsed since the non-compliance
107. The non-compliance occurred when the applicant provided incorrect information and a bogus document with his ENS Temporary Residence Transition (Subclass 186) visa application which was lodged on 5 November 2016. Approximately six years has elapsed since the non-compliance. In this time, the Tribunal is satisfied that the applicant has worked, studied, and established some social ties to Australia. Saying that he has only been able to do so as the holder of a permanent visa sourced from the incorrect information and bogus document which facilitated the grant of that visa.
108. Nevertheless, the Tribunal considers the ties he has established and the period of time he has spent in Australia do mitigate the non-compliance.
109. The Tribunal gives this consideration significant favourable weight against cancellation.
Any breaches of the law since the non-compliance and the seriousness of those breaches
110. There is no information before the Tribunal to indicate the applicant has breached any laws since the non-compliance.
111. The Tribunal gives this consideration significant favourable weight against cancelling the visa.
Any contribution made by the holder to the community.
112. In his response to the NOICC, the applicant evidenced that he is a regular blood donor to the Australian Red Cross, since approximately 2018.
113. He also states he has made contributions to the community through payment of taxes and making himself available to help those around him. He has provided copies of his Australian Federal Police certificates to demonstrate he is of good character.
114. The Tribunal consider this shows a level of contribution to the community. The payment of taxes, abiding by the law and treating others with respect are standard expectations for all members of a society.
115. Having taken all the above information into account the Tribunal gives this consideration some favourable weight against cancelling the visa.
116. 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.
Consideration of the prescribed factors and any matters raised by the applicant in response to the s.107 notice and any consideration of the Departmental PAM 3 guidelines:
Whether there would be consequential cancellations under s.140.
117. According to Departmental records, the other members of the applicant’s family hold a visa because the applicant holds his ENS Temporary Residence Transition (subclass 186) visa:
118. If the Tribunal were to decide to affirm the cancellation of the applicant’s ENS Temporary Residence Transition (Subclass 186) visa, it would result in the automatic consequential cancellation (by operation of law under section 140 of the Act) of the secondary ENS Temporary Residence Transition (Subclass 186) visas of the applicant’s family members. Their ENS Temporary Residence Transition (Subclass 186) visas were granted on the basis of being ‘members of the family unit’ of the applicant, who is the primary visa applicant. There is no information before the Tribunal to indicate the family members have applied for a visa independent of the applicant or have ceased to be ‘members of his family unit’.
119. The Tribunal finds that the family members’ secondary ENS Temporary Residence Transition (Subclass 186) visas will be consequentially cancelled, should the applicant’s visa be cancelled. The Tribunal is satisfied that were this to happen it will keep the family’s immigration status aligned and prevent the cancellation separating the family unit.
120. The Tribunal gives this consideration some favourable weight against cancellation.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
Protection
121. The policy guidelines require the Tribunal to assess whether Australia would be in breach of its international obligations if the visa were cancelled. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR).
122. The applicant and his family are citizens of Vietnam. He has not applied for protection and has not indicated he fears returning to his home country in his NOICC response.
123. The Tribunal, therefore, does not consider cancelling the visa will potentially lead to the applicant being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention, or in breach of Australia obligations under the CAT or ICCPR.
Rights of the Child
124. Australia has signed the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Article 3.1 of the CROC states:
125. “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”
126. As a signatory to the CROC, Australia has an obligation to ensure that in all actions concerning children, the best interests of the child are a primary consideration. In relation to cancellation action this does not preclude cancellation of a visa but requires the delegate to turn their mind to the consequences of cancellation.
127. The applicant has two children. They are Vietnamese citizens, aged 15 and 17. The Tribunal considers that it in the best interests of the applicant’s children that they stay with both their parents. If the applicant’s visa were cancelled, the children and his wife, who is also a Vietnamese citizen, would consequently have their visas cancelled. The family unit would thus be able to return with him to live in Vietnam and this would not result in unnecessary separation.
128. Therefore, it is the Tribunal’s finding that cancelling the visa would not potentially result in a breach of Australia’s obligations under the Convention on the Rights of the Child (CRC) or the International Covenant on Civil and Political rights (ICCPR).
129. The Tribunal considers there is no information before it to indicate the circumstances of this case are such that they would engage Australia’s international obligations.
130. In view of the above conclusion the Tribunal gives this consideration minimal weight in favour of cancelling 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.
131. The Tribunal is satisfied that cancelling the visa would result in the following legal consequences:
·The applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia, as he would no longer hold a valid visa.
·He may be subject to section 48 of the Act, preventing him from applying for further visas while in Australia
·He may also be affected by Public Interest Criterion 4013 limiting the grant of a further temporary visa for a specified period.

132. In view of the above, the Tribunal gives this consideration significant favourable weight against cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the applicant and any family members).
133. The Tribunal has had to balance up the bad conduct of the applicant in the pursuit of his Subclass 186 visa with his family considerations. His reckless indifference to the submission by his agent of fraudulent and incorrect information led inexorably to the grant of the visa and to its eventual cancellation by the delegate – once the fraud was discovered. His denial of any nefarious conduct should be viewed in the light of this fact.

134. At the same time the significance of the cancellation in the degree of hardship it would cause to the applicant’s family - is a serious concern to the Tribunal. His children (in particular) are in the late teenage years and will have their lives disrupted adversely at a crucial time in their human formation. They have spent substantial time in Australia already. Most importantly affirmation of the cancellation by the Tribunal will initiate significant turmoil particularly from the point of view of their education. His wife, for her part, would lose her job and any income that provides. The family would be reduced to immediate financial stringency through cancellation. For instance, they have informed that they sold all their goods and chattels to relocate to Australia. The applicant and his wife are also middle-aged people and thus may find difficulty re-integrating readily to Vietnamese society. This could have a further deleterious impact on their children’s’ immediate future. The Tribunal is satisfied that the significant hardship which would occur to the applicant’s children outweighs the quantum of the applicant’s wrongdoing.
135. The Tribunal gives this consideration maximum favourable weight against cancellation.
136. 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
137. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
138. The Tribunal has no jurisdiction with respect to the other applicants.
Michael Cooke
Senior Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 2661

30 June 2021

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