Jahja (Migration)

Jahja (Migration) [2023] AATA 1779 (21 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nik Jahja
REPRESENTATIVE:  Mrs Libby Anne Hogarth (MARN: 9364758)
CASE NUMBER:  2117848
HOME AFFAIRS REFERENCE(S):          BCC2021/993986
MEMBER:Peter Emmerton
DATE:21 March 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 21 March 2023 at 1:57pm
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – ground for cancellation – incorrect information in previous visa application – known by another name – place of birth – family composition – consideration of discretion – inadvertent inaccuracies – grant of visa not based on incorrect information – present circumstances – best interests of the child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that there has been non-compliance with s.01(b) of the Migration act 1958, as incorrect answers were provided by the applicant in his original visa applications. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 21 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Phoebe Cooper, (wife) and Ms Vivinee Mercer, (mother-in-law and qualified nurse).
The applicant was represented in relation to the review.
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.
The following documents were provided to the Tribunal from the Department’s files.
·ASIC Business Registration for Eagle View Properties Pty Ltd, dated 11 February 2021
·Department cancellation notes (internal)
·Department working holiday visa application
·Application for partner visa migration
·Department notice of intention to cancel, dated 26 October 2021
·Representative response to intention to cancel, dated 27 October 2021
·Department notice of cancellation, dated 24 November 2021
The following documents were provided to the AAT.
·Representative submission dated 17 December 2021
·Statement by Mr Tahir Sela and Ms Life Sela (declared biological parents of Review Applicant), dated 2 April 2021
·Statutory Declaration of Mr Nik Jahja, dated 17 December 2021
·Statutory Declaration of Ms Phoebe Margaret Cooper (sponsor), dated 20 December 2021
·Statutory Declaration of Ms Cleo Mauga (stepdaughter of Mr Nik Jahja), dated 20 December 2021
·Statutory Declaration of Ms Esther Cooper, sister of sponsor, dated 20 December 2021
·Statutory Declaration of Mr Manasseh Cooper, qualified rigger, brother of Ms Phoebe Cooper, dated 20 December 2021
·Statutory Declaration of Mr Michael Mercer, stepfather of Ms Phoebe Cooper, dated 20 December 2021
·Statutory Declaration of Mr Nik Jahja (extended handwritten), dated 2 April 2021
·Income Statement of Ms Phoebe Cooper, Centrelink carer/family tax benefits, November & December 2021
·Family Certificate – multiple languages including English, Albanian, dated 2 April 2021
·Kinship testing report – Identilab, dated 12 March 2021
·Parentage testing report – Identilab, dated 30 March 2021
·United Kingdom Passports of Elsaid Jahja / Nik Jahja respectively
·Representative’s letter dated 19 April 2021
·Certificate of Marriage of Mr Nik Jahja and Ms Phoebe Cooper, registered 18 January 2017
·Birth Certificates of Ms Manaia Esther Cooper and Ms Cleo Mauga
Was there non-compliance as described in the s 107 notice?
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 the following which principally relate to incorrect name, Date of Birth, (DOB) and place of birth. All of which are claimed by the visa holder to have occurred accidentally as he was not aware of the correct information which had been kept from him until very recently. When he was informed of the correct circumstances, he self-reported and informed the relevant Australian and British Government Departments of the correct information. The details are as follows.
Non-compliance with Subdivision C of the Act
Non-compliance with s101(b)
On the Working Holiday visa electronic application form the visa holder answered:
Family name: JAHJA
Given names: Nik
Sex: Male
Date of birth: 12 October 1987
Relationship status: Never Married
Your place of birth:
Town/city: Tetova
Country: FYR Macedonia
The Tribunal is not satisfied that these answers are entirely correct. Based on the verification received from the Embassy of the Republic of North Macedonia and the visa holder’s written submissions made to the Department on 19 April 2021, the visa holder is also known as Kreshnik SELA (DOB: 13 December 1985), born in Shkoder, Albania.
The Working Holiday visa electronic application form asked if the visa holder was known by any other names. The visa holder stated he was also known as Elsaid JAHJA. As already stated, the visa holder is also known as Kreshnik SELA (DOB: 13 December 1985). This was confirmed at the hearing.
The Partner (Provisional) visa application form requires data to be entered as it appears in the applicant’s Passport. The visa holder stated the following:
Family name: JAHJA
Given names: NIK
Sex: Male
Date of birth: 12 Oct 1987
Passport number: 507281167
Country of passport: UNITED KINGDOM - BRITISH CITIZEN - GBR
Nationality of passport holder: UNITED KINGDOM - BRITISH CITIZEN - GBR
Date of issue: 12 Oct 2011
Date of expiry: 12 Jul 2022
Place of issue / issuing authority: IPS
The Tribunal is not satisfied that these answers are entirely correct. Again, based on the verification received from the Embassy of the Republic of North Macedonia and the visa holder’s submissions made to the Department on 19 April 2021, the visa holder is also known as Kreshnik SELA (DOB: 13 December 1985), born in Shkoder, Albania.
The Partner (Provisional) visa application form also states that he was born in Dobroshta, Tetova, FYR Macedonia. The information before the Tribunal, provided by the visa holder’s migration agent in April 2021 indicates that the visa holder was born in Skhoder, Albania.
The same visa application form asked if the visa holder had ever been known by any other names. The applicant stated he was also known as Elsaid JAHJA. This answer is known to be incorrect because the forementioned information before the Tribunal confirms that the visa holder is also known as Kreshnik SELA (DOB: 13 December 1985).
The Partner (Provisional) visa application form asked, “Does the applicant have any parents, siblings or children including those that are deceased?”. The visa holder answered, “Yes” and wrote the following:
Family name: JAHJA
Given names: CEN
Sex: Male
Date of birth: 01 Jan 1901
Relationship status: Married
Date of marriage: 01 Jan 1901
Relationship to applicant: Parent
Is the family member deceased? Yes
Family name: SMAJLI
Given names: DJANA
Sex: Female
Date of birth: 01 Jan 1901
Relationship status: Married
Date of marriage: 01 Jan 1901
Relationship to applicant: Parent
Is the family member deceased? Yes
The Tribunal accepts these answers to be incorrect because information provided by the visa holder’s migration agent, to the Department, in April 2021 confirmed that the visa holder’s parents are Life SELA (DOB: 27 December 1960) and Tahir SELA (DOB: 01 December 1955), and neither parent is deceased. This was corroborated at the hearing.
Whilst the Tribunal has formed the opinion following questioning of the applicant during the hearing and perusal of Statutory Declarations provided, that it is most reasonable to accept that the inaccuracies were not deliberate and reflected the applicant’s true belief of the world as he knew it and his place in it, the fact remains that there was relevant non-compliance. For clarity the Tribunal has formed the view that non-compliance took place in the form of inaccurate answers on the visa applications but believes the inaccuracies were inadvertent and reflected his view at the time of his family structure and his place within it.
For these reasons, the Tribunal finds that there was non-compliance with s101(b) by the applicant in the way described in the s 107 notice
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 reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While all of 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.
Correct Information
The correct information is as follows:
·The visa holder was born as Kreshnik SELA (DOB: 13 December 1985).
·The visa holder was born in Shkoder, Albania.
·The true names of the visa holder’s biological parents are Life SELA (DOB: 27 December 1960) and Tahir SELA (DOB: 01 December 1955).
The Tribunal notes the delegate’s supposition that the applicant knew his name was Nik from an early age because he acknowledged it was used at the age of 4. This is pure speculation – many children are referred to by a name different to their actual name and is not considered relevant or credible reasoning.
Content of the genuine document
Both the British Passport used for identification and the visa applications which relied upon that source document show the same inaccuracies. It is clear, that they should have shown the details outlined in paragraph 26 of this decision. It is noted that there appears to be no attempt to hide the correct information nor any apparent motivation to do so in order to alter an immigration outcome. The most likely explanation is ignorance of the facts and subsequent utilisation of inaccurate knowledge because the applicant was unaware of the truth surrounding his heritage and parents. This cascaded through a series of relevant documents. This was explored during the hearing and the Tribunal is satisfied that there was no attempt to embellish the truth nor hide relevant inaccuracies and the subsequent consequences.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal believes that as the incorrect information provided to the Department was about or associated with the client’s name and place of birth which, had it been correct it would not have affected the outcome of the decision on either the working holiday visa or the partner visa application. The Tribunal notes the delegate’s assertion that it was ‘possible’ that PIC 4020 may have come under consideration had the truth been known at time of application is speculation. There is an equally valid reasoning that the assessment was that as it was inadvertent and would not have inflicted negative visa outcomes as it was reasonable to disregard.
Circumstances in which the non-compliance occurred
The Tribunal acknowledges and has regard for the following statement, dated 17 December 2021put forward by the applicant’s representative
‘The situation in this case is quite unique and we submit the delegate has given little weight to the fact that applicant had never been told his true history of being abducted by Gypsy parents, or that the people he knew as aunty and uncle were in fact his genuine birth parents., until earlier this year.
He suffered enormous trauma as a child, firstly being taken from his grandparents’ care and then losing both the adults he had known to be his mum and dad in tragic circumstances. He had enjoyed what he describes a happy childhood from 6 years to 12 years, spending much of his time outside and travelling from town to town with his parents. Then the war started, his village was attacked, his parents were killed and he was placed in an orphanage as a terrified, traumatized and lonely 11 year old child. Then, when found by his grandfather, he was taken back to Albania to live with people he thought were his aunt and uncle and cousins, but was rarely allowed outside because the civil unrest in the country at the time. He says he had a very difficult two years in Albania with his relatives before going to England and seeking asylum, and was placed in foster care.
When his “aunty” rang him towards the end of 2020 to say she was really his birth mother, he did not believe her. After she kept following him on social medial and telling him the same story, he at last did DNA which proved the relationship.
The applicant himself then immediately took the correct action and informed both Immigration in Australia AND in the UK.
We submit the law did not envisage such circumstances as faced by the applicant and, given the circumstances, we submit the delegate had the power to NOT cancel the visa.’
When read in conjunction with the relevant Statutory Declarations, the DNA testing results and cross referenced with the evidence given during the hearing, whilst also acknowledging the circumstances of war at the critical point in time, the Tribunal believes the applicant was unaware that at the time of his visa applications and British Passport issue that he was providing inaccurate information. Again, it notes that there is no obvious advantage to be gained in providing the inaccurate data at any point. The evidence suggests that the incorrect data emanated from a time prior to when a child could have possibly known a different version of his personal history or its ramifications.
The Tribunal has formed a view that it is reasonable to put itself in the shoes of a young child in a war-ravaged country, traumatised, impoverished and denied the truth by well meaning adults in his life. Control of his circumstances and knowledge of the truth can reasonably be accepted as scant prior to his adulthood.
The Tribunal notes the fact that the applicant self-reported the correct information to the British and Australian authorities once he became aware of it. The timing of the truth appears to have been determined by others, not by choices he made. The corroborating evidence as to the thought processes, their advice and opinions provided by his wife and mother-in-law reinforces this Tribunal’s belief that the applicant was desirous of telling the truth. The Tribunal ascertained under questioning that the applicant has limited written literacy in the English language and has throughout his life had to rely upon interpreters and people he trusted within his family to assist.
Present circumstances of the visa holder
The applicant is married to an Australian citizen and has a daughter aged 5 from the relationship and a stepdaughter who is 14 years old. This was demonstrated by Birth Certificates and a Marriage Certificate accepted as genuine. The Tribunal acknowledges the extremely negative emotional impacts upon the 2 children at this stage of their lives if the applicant is forced to leave Australia. This naturally flows to the spouse of the applicant. This impact will be greater should the British government choose a likewise course of action with the visa applicant therefore ultimately having to relocate to Albania. It was revealed and corroborated during the hearing, that the applicant and his wife are expecting a third child, due in 4 weeks, via caesarean section, due to medical complications. The demeanour of the visa applicant, his wife and his wife’s mother clearly demonstrated the extreme pressure they are experiencing from all of the current circumstances in which they find themselves. The Tribunal is sympathetic in relation to these circumstances.
The Tribunal acknowledges the visa applicant’s current employment would need to be terminated and this is likely to create financially negative consequences forced upon his family as well as himself. It is clear that his wife would be unable to return to work for a considerable period of time post birth. The cost of childcare would likely make such an action untenable.
Should it be necessary to liquidate some of the investment properties owned by the applicant it is reasonable to assume that his various tenants would be likely financially disadvantaged and possibly left without a residence. This view is based upon the dire current state of the residential rental market.
Subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act

The applicant was the person who disclosed the incorrect information to both the Department and the relevant British authorities, as demonstrated by documents presented to the Tribunal and verified during the hearing. There appears to have been no deliberate intention to mislead the relevant Governments in either Australia or Britain. The applicant only found out his true identity in 2021 and immediately advised the Department. He has met all other visa conditions. There is no evidence before the Tribunal which demonstrates alternate facts nor a contrary truth. The Tribunal is convinced that he willingly undertook to do the correct and honest action in relation to his visa status. It may reasonably be inferred when considering the potential consequences thrust upon both he and his family, that a certain degree of naivety was present.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances, before the Tribunal of non-compliance by the visa holder. This was likewise acknowledged by the delegate at the time of their decision.
Time that has elapsed since the non-compliance
The truth regarding the applicant’s true and accurate identity has only come to light post the relevant visa applications in 2021, once the applicant received the results of DNA testing dated 12 March 2021, indicating the claims made by his mother were correct.
The non-compliance with s101(b) occurred on 08 January 2016, when the visa holder incorrectly answered questions pertaining to his identity on his Working Holiday visa application. The visa holder subsequently engaged in further non-compliance with s101(b) when incorrectly answering the same identity questions on the Partner (Provisional) visa application form in 2018.
The Tribunal notes the original non-compliance in relation to Australian visa applications occurred in excess of 7 years ago. It in addition observes that the original inaccurate declaration which lead to the in accurate information being provided to the Australian authorities must have been made to the British Government approximately 2 decades ago. Whilst not strictly relevant in the current deliberation, it certainly indicates the inadvertent cascade of incorrect data from a point in time where a child, who was a ward of the State, was unlikely to have knowledge of the truth nor their potential ramifications well into the future.
Breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal indicating any breaches of the law since the non-compliance by the visa holder. This was corroborated during the hearing. This was also acknowledged by the delegate in their decision.
Any contribution made by the holder to the community
The Tribunal accepts that the visa holder is a productive member of the community having been employed from the age of 16 years and worked towards building a substantial real estate portfolio in Australia as well as Britain, (in excess of 12 properties). He subsequently provides rental accommodation in both countries which is a substantial current need.
The Tribunal accepts the evidence presented to it prior to and during the hearing by himself and his family that he is a dedicate family oriented individual.
Persons in Australia whose visas would or may be cancelled consequentially
There is no evidence before the Tribunal to indicate that any consequential cancellations would occur to family members as a result of s140 of the Act.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
The applicant has a child with his wife and also a stepchild (daughter of his wife’s previous relationship). It was submitted by the review applicant that Australia has obligations under the Convention of the Rights of the Child, (CROC), to which it is a signatory, to take into consideration the best interests of the child. The Tribunal concurs. ARTICLE 3 of CROC states:
‘1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.’
The Tribunal has considered the background of the applicant and the trauma he has faced in his childhood. It is fair to assume the devastating impact for him to see his own children facing separation from their father and likewise for himself to have to leave his wife and children behind in Australia and return to the UK or to Albania. Given the national processing time for partner visas is currently 2-3 years this would have a serious impact on the applicant and his child if his visa cancellation is not set aside. It is reasonable to assume that there may also be a multiple year exclusion period imposed should he be required to surrender his visa.
The Tribunal is equally concerned by the established fact that the eldest daughter of the visa applicant’s wife has experienced a traumatising, potentially life threatening and altering medical condition. This occurred at an early age. Her condition requires ongoing supervision and treatment by highly skilled medical specialists. It is arguable that her optimal medical support is best obtained in a country where her medical history is well known. Should the family need to relocate to Britain it may subsequently be suboptimal.
As the Tribunal is aware that the British Government is yet to determine the status of the visa applicant, which could result in his having to return to Albania, it must consider the potential impact. The Tribunal is without doubt that regardless of the best intent, the medical technology or treatment available in Albania is unlikely to be of a comparable standard to the optimal standards available in Australia. Should this eventuality arise, that is having to relocate to Albania or split the family for a substantial time, it is clear evident, that Australia would be in contravention of our obligations in relation to Convention of the Rights of the Child. The applicant’s wife was clear that she would be unable to relocate her children to Albania for the logical reasons already stated.
Non-refoulement obligations
The Tribunal has determined that the visa holder is currently a citizen of the United Kingdom. It notes he has not applied for protection or raised any claims he fears returning to his home country, or that his civil and political rights will be negatively impacted.
The Tribunal is satisfied that cancelling the visa would not potentially lead to the visa holder being removed in breach of Australia’s non-refoulement obligations under the Refugee Convention, or in breach of Australia’s obligations under the CAT or the ICCPR in this case.
Whether there are mandatory legal consequences to a cancellation decision
The Tribunal notes the following statements made by the delegate in their decision.
‘If the visa was to be cancelled, the visa holder would become an unlawful non-citizen and could be liable for detention under s189 and removal under s198 of the Act if he does not voluntarily depart.
In addition, the cancellation will also place a limitation under section 48 of the Act, which means that the visa holder will have limited options to apply for further visas in Australia.
The visa holder may also be affected by Public Interest Criterion 4013, limiting the grant of a further temporary visa for a specified period.’
The Tribunal accepts that this is a correct summary of the likely legal consequences. The delegate acknowledged that these factors weighed in the favour of the applicant. The Tribunal has determined that clearly such acknowledged consequences are highly likely to have undesirable and life-long potentially catastrophic impacts on the family unit, the children’s development, and the wife of the visa applicant.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
If the applicant is not successful in keeping his British citizenship, and if this Australian visa cancellation is not set aside, the Tribunal acknowledges he would have little alternative but to return to Albania to wait out the processing of his new visa application. He has stated there is no way he could take his wife and child back to that situation.
The review applicant is the income earner for the family. He has never been a recipient of welfare and has been employed since he was 16 years of age. If he left Australia, his wife would not be eligible for Centrelink because of the property assets they hold in Australia and the United Kingdom. However, these assets do not provide a cash income for his wife to use to provide for the daily life of herself and the children. She would therefore need to commence work as the potential earning capacity of her husband if he is living in Albania for several years whilst awaiting a visa approval, if it is in fact approved, is minimal and could not support his family.
All accepted child development theory and practice indicate the youngest child is at a crucial age of her development and needs her father’s love and care. Relocating the family with the eldest child needing ongoing medical supervision is not practical and to leave her behind in the care of family would be distressing and emotionally damaging at her stage of development. The Tribunal further notes the medical condition of the applicant’s wife, her early surgical delivery as a direct result and her subsequent inability to work in order to nurture and protect her 3 children as a single parent. Such a circumstance in the view of the Tribunal is highly undesirable.
The applicant has stated is continuing to struggle with the issues around his newly discovered identity and subsequent realignment of familial connections. He claims to be reliving a lot of past memories as he faces leaving his child at the same age he was separated from his grandparents. In particular he is devastated by the ramifications he and his family are facing as a result of revealing the truth to the Australian and British Governments once it was understood by him. The Tribunal was convinced by the verbal testimony provided at the hearing in conjunction with the written testimony of relatives. It was made abundantly clear throughout the hearing that the entire family is under enormous stress and the demeanour of all attending has elicited some empathy for the current circumstance this family is experiencing.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Peter Emmerton
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.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2023] AATA 1779

21 March 2023

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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