LU (Migration)

[2019] AATA 609

LU (Migration) [2019] AATA 609 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Junyuan LU

CASE NUMBER:  1805420

DIBP REFERENCE(S):  BCC2017/1425577

MEMBER:John Cipolla

DATE:27 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 890 (Business Owner) visa.

Statement made on 27 February 2019 at 4:10pm

CATCHWORDS
MIGRATION – cancellation – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – secondary visa applicant – s. 107 non-compliance – information in visa application – relationship status – contradictory information in Partner visa application – erroneous advice from migration agent – not in a de facto relationship at time of application – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 890 (Business Owner) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information in his Subclass 890 Business Skills visa in which he was a secondary visa applicant.  The applicant in the Subclass 890 visa application had advised that he was a dependent member of the family unit of his mother who was the primary visa applicant in the Subclass 890 application.  In response to question 16 of the form 47A which asks the dependent member of the family unit’s current relationship status, the applicant stated he had never married or been in the de facto relationship. At question 43 of the associated Form 80 the applicant was asked whether he had a partner including wife, husband, fiance, boyfriend, girlfriend, or significant other or de facto to which the applicant answered ‘no’. The delegate concluded that this evidence indicated that the applicant was not in a de facto relationship. The delegate concluded that this evidence was contradicted in the Partner visa application lodged by the applicants now wife on 2 December 2015 (and later withdrawn). The delegate noted that on 15 December 2015 after the grant of the Subclass 890 visa the applicant’s de facto lodged an application for a Partner visa and advised in that application that she and the applicant had been in a de facto relationship since 2 October 2013.  The delegate formed the view that the information provided in the Partner visa application negated that provided in the Subclass 890 visa application namely that the applicant was a dependent member of his mother’s family unit at time of application and at time of decision.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 6 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jingxin Zhang, who is the applicant's wife.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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.

7. 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.

8. 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?

9. 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 section 101 of the Migration Act for the reasons outlined above, namely that the evidence provided by the applicant as a secondary visa applicant pertaining to him being a dependent member of his mother’s family unit in a Subclass 890 application was negated by the evidence pertaining to the date his de facto relationship commenced (October 2013) in his now wife’s Partner visa application lodged in December 2015.

10. The applicant provided a comprehensive response to the Notice of Intention to Consider Cancellation of his Subclass 890 visa which is dated 16 October 2017. The Tribunal has had regard to the applicant’s response provided to the Department at this time.

11. The Tribunal has received a comprehensive submission from the applicant’s representative at review including statutory declarations from the applicant and his wife. The Tribunal has considered the submission and the attached statutory declarations.

12. The Tribunal conducted a review hearing on 6 February 2019. The applicant attended the hearing along with his now wife and both the applicant and his wife gave evidence to the Tribunal under oath. The applicant’s representative attended the review hearing.

    REVIEW HEARING

13. At the outset of the review hearing the Tribunal made reference to the relevant issues in review and explained for the applicants benefit the process of merits review and the prospective outcomes of the review.

14. The applicant advised that he first came to Australia in February 2012 under the umbrella of a business visa held by his mother.

15. The Tribunal asked the applicant whether he had travelled back to China since he arrived in Australia and he advised that he had returned on at least 4 occasions, with each visit averaging approximately one month. The Tribunal asked the applicant what he had been doing in Australia from February 2012 to date. The applicant advised that he commenced English language studies in Australia and that he then enrolled in a Bachelor of Business at the University of Technology in Sydney.

16. The Tribunal asked the applicant for a timeline pertaining to his studies. The applicant stated that he commenced English language studies in March 2012 until September 2012 at an education Institute located in Wynyard. He advised that his parents paid for the tuition fees relating to this course and that he resided with his parents who provided board and lodging to him. The applicant then enrolled at a technical college (TAFE) in Randwick where he undertook two further English-language courses of 12 weeks duration each. The applicant advised that he successfully completed these courses and that his parents paid for the cost of tuition fees. The applicant stated that he’s ceased studying these courses in around March or April 2013.

17. The applicant advised that he then commenced studying at the University of Technology in Sydney but prior to enrolling he had to undertake a foundation studies course which prepares an overseas student for tertiary study. The applicant initially enrolled at Taylors College to undertake foundation studies. The applicant stated that Taylors College was affiliated with the University of Sydney and he found this foundation studies course difficult, so he then transferred to foundation studies at Insearch, which is attached to the University of Technology in Sydney. The applicant stated that his Insearch course ran for 3 semesters over 36 weeks with each semester being 12 weeks in duration. The applicant advised that he finished his foundation studies course in March 2014 and that his parents paid for the cost of this course and provided him with board and lodging during this time.

18. The Tribunal asked the applicant when he commenced studying at the University of Technology in Sydney for a Bachelor of Business and he advised in March 2014, a course that he completed satisfactorily in around June 2017. The applicant advised that his parents paid for the costs associated with this course and provided board and lodging to him during this period of study.

19. The Tribunal asked the applicant what he had been doing since the completion of his university studies in June 2017 and the applicant advised that he had been looking for work and had recently found work in sales with Nau Hai Media located in Pitt Street Sydney.

20. The Tribunal asked the applicant how many residences he had resided in since arriving in Australia in February 2012. The applicant noted that he had resided in 5 residences, the first and second in Mascot, the third in Sylvania Waters, the fourth in Mascot and his current address in Hurstville.

21. The Tribunal asked the applicant where he met his wife for the first time and he advised in 2011 whilst he was in China. The applicant advised that he met his now wife at her parents shop in Xiao Qing City which he had attended accompanied by his parents. 

22. The Tribunal asked the applicant whether his parents and his wife’s parents were known to one another and he advised that they had known one another for about 10 years.

23. The Tribunal noted that the applicant’s now wife had lodged a Partner visa application and asked what had happened to that application.  The applicant advised that this application had now been withdrawn.

24. The Tribunal noted submissions indicating that the applicant’s wife came to Australia to study in October 2013 and that as she was known to the applicant’s family, there was an arrangement that she would reside with his family until a suitable homestay arrangement had been organised. The applicant was invited to provide further details about this. The applicant advised that when his wife came to Australia to engage in study she was intending to live temporarily with his family while she looked for a homestay. The applicant advised that no suitable homestay’s arose that didn’t involve substantial travel by public transport to her place of study (University of Technology Ultimo). The applicant advised that his wife’s mother spoke to his grandmother asking whether his wife would be able to stay with his family until she found suitable accommodation and became more familiar with Australia. As she was not able to find suitable homestay accommodation she ended being invited to reside with the applicant’s parents in the family’s spare room for an extended period. This arrangement was facilitated by the respective families.

25. The Tribunal asked the applicant what sleeping arrangements were in place at the time of his wife’s arrival in Australia in October 2013 until the lodgement of a Partner visa application. The applicant advised that his parents had a large house and that he and his now wife slept in separate bedrooms.

26. The Tribunal asked the applicant when he and his wife were married and he advised that they celebrated a wedding banquet on 10 February 2017 and the marriage was registered on 2 March 2017. The applicant stated that he and his wife maintained separate rooms until Chinese New Year in 2016 which was in February of that year.

27. The Tribunal asked the applicant about his wife’s study history in Australia. He advised that his wife had studied English language before undertaking foundation studies and then completed a Bachelor of Business at the University of Technology in Sydney, majoring in accounting. He advised that his wife was now studying a Masters of Commerce at the University of New South Wales.

28. The Tribunal asked the applicant why his wife lodged an application for a de facto visa in 2015 after the applicant’s mother and the applicant were granted permanent residence. The applicant advised that at that time he had a different migration agent to his current agent and that he and his wife relied on the advice provided to them by that agent.

29. The applicant stated that on 22 September 2015 after the grant of his permanent residence he went to see his previous migration agent about what he needed to do after the grant of the Subclass 890 visa. The applicant advised that his wife came along to the appointment as she had a lot of questions about her own migration status. The applicant stated that his wife asked the migration agent questions about the skilled migration program as she was fast approaching the completion of her university studies. The applicant advised that his wife was told that it would be difficult to obtain a skilled visa to Australia and that the process may be lengthy. The applicant stated that they asked this agent whether there was a faster way of obtaining permanent residence. The applicant stated that the agent then asked probing questions about his and his wife’s living arrangements at that time and whether the couple were in a relationship or planned to get married.  He also asked whether they had a shared bank account, and what their long-term plans were as a couple. The agent advised the applicant and his wife to open up a bank account and advised that he could put together an application on Partner grounds claiming that the couple were in a de facto relationship. The applicant stated that he paid $3000 for this advice.  The applicant stated that he was never advised what a de facto relationship was by this migration agent and was under the misapprehension that it related to two people in a relationship as boyfriend and girlfriend.  He was never advised that it meant a mutual commitment to a shared life to the exclusion of all others.

30. The Tribunal took evidence from the applicant’s wife Ms Jingxin Zhang.  The Tribunal asked the witness when she came to Australia and she advised in October 2013 as the holder of a Student visa. The Tribunal asked the witness when she met her husband for the first time and she advised it was around the end of 2011, she advised that her parents and his parents were known to one another.  She advised that the applicant’s parents attended her parents shop and they were introduced to one another at that point in time. The witness stated that she was at high school at the time, that she was shy, and was that she just looked at the applicant and walked away. The witness advised that her parents shop was located at Xiao Qing City in Pa Wan Province.

31. The Tribunal asked the witness about her study history. She advised that she undertook an English-language course at Insearch Institute for 10 weeks when she first arrived, a course that she commenced in October 2013. She then undertook a Diploma of Business at Insearch Institute which took one year. She then enrolled in a Bachelor of Business majoring in Accounting at the University of Technology Sydney which she completed at the end of 2016. She did not study in 2017 and enrolled in a Masters of Commerce at the University of New South Wales in July 2018 which she will complete in either November or December 2019.

32. The Tribunal asked the witness what arrangements were in place for her when she arrived to live in Australia as a student. The witness advised that her agent was supposed to organise a homestay for her in Australia. She advised that the prospective homestays identified were a long distance from her place of study in Ultimo and she was concerned about travelling to and from her place of study in an environment she was unfamiliar with.  The witness advised that her English language skills at the time of her arrival were not good. The witness stated that she was anxious about living with strangers. She mentioned these fears to her mother and prior to arriving in Australia her mother and grandmother had organised for her to live temporarily with the applicant and his family until such time as an appropriate homestay was organised.

33. The Tribunal asked the witness about this arrangement. The witness stated that her agent advised her that it was difficult to find a homestay close to her point of study she advised that the arrangement with the applicant’s family was initially supposed to be a temporary one. The witness stated that she was happy residing with the applicant’s parents and that she wanted to circumvent a long commute to university. The witness stated that she became content residing with the applicant’s family and that she had her own room. The witness stated that she felt that she had somebody to care for her and support her as a new arrival in Australia.

34. The Tribunal asked the witness about her living arrangements and she advised that she resided in her own room from the time of her arrival in October 2013 and that she and her husband did not begin to share a bedroom until sometime in the first part of 2016, around Chinese New Year when a close relationship developed between them.

35. The Tribunal asked the witness what date she was married and she advised that she and her husband had a banquet on 6 February 2017 and their marriage was registered on 2 March 2017. The Tribunal noted that the applicant was granted a Subclass 890 visa under the umbrella of his mother’s application in September 2015 and that the witness lodged an application for a Partner visa in December 2015. The Tribunal asked the witness whether she and her husband sought any migration advice pertaining to this application. The witness stated that shortly after her husband’s family received their Subclass 890 visa her husband had to attend the migration agent that had represented the family in the 890 application to formalise some paperwork. The witness advised that she came along to the appointment because she wanted to speak to the agent about her own migration issues and concerns. The agent questioned the witness about her personal circumstances and she advised that she was graduating from University with a Bachelor degree in approximately one year. The witness stated that she told the agent that she had heard from friends that she may be eligible to apply for a skilled migration visa and she wanted to explore the options of skilled migration to Australia. The agent advised her that a skilled visa was possible, however that there were some difficulties in such an application and that such an application was not as straight forward as one expected.

36. The agent advised the applicant that she would need English-language test scores of 8 or more in order to obtain a skilled visa and that she would need post-graduation professional experience and the applicant was led to believe that she would have to undertake significant English-language courses in order to get enough points to meet the English-language expectations for a skilled visa. The witness stated that she thought that the language requirements would be very difficult for her to overcome with English being her second language.

37. She advised that the agent then asked her probing questions about her living arrangements and she advised that she was living in a spare bedroom with the applicant and his family. The agent asked whether she had plans to get married and she advised that she did not. The witness stated that she thought that this question was strange. The agent then asked the witness whether she and the applicant had joint bank accounts and if not that it would be wise to open some together. The agent asked the witness whether she envisaged a relationship with the applicant in the future and she advised that she had developed some feelings towards him but she was not aware that he felt the same way about her. The agent then advised the witness that it may be possible to lodge a de facto application and the witness advised that she was not sure about the information that she would need to provide with regard to that application and that no explanation was provided about the meaning of de facto. The agent advised her to apply for a joint bank account and to provide evidence of that bank account along with evidence of correspondence and photographs and advised that a de facto application would be simpler than a skilled application. The witness stated that she had no understanding of the concept of a de facto relationship. She advised that she and the applicant decided to open up a joint bank account. The witness stated that the agent told her that as long as she and the applicant were living together or thinking about living together that they would meet the requirements for the grant of a de facto visa application. The witness stated that at the beginning she and the applicant were not in the de facto relationship. She advised that in around November 2015 the applicant’s parents were overseas and the couple developed feelings for one another at that point. The witness stated that one day the applicant told her that he had feelings for her and she disclosed the same to him. The witness identified this period as being around November 2015. The witness identified this period as being around the time of the grant of the applicant’s Subclass 890 visa as his parents went back to China at that point in time for a visit.

1. The Tribunal asked the witness whether there was anything more that she wished to say and she advised that the previous agent did not explain himself clearly and that it was through her misunderstanding based on this erroneous advice that problems occurred for her husband that led to the cancellation of his visa. The witness stated that after she and her husband had acknowledged their feelings for one another they went back to China in February 2016. The witness stated that at this time the applicant was introduced to her relatives as prospective marriage partners. The witness stated that she stayed at the applicant’s family home in China.

2. The Tribunal asked the applicant whether there was any further evidence that he wished to provide. The applicant stated that he misunderstood the definition and meaning behind a de facto application as it had never been properly explained to him and that at the time of his mother application for the Subclass 890 visa and at the time of visa grant he was not in a de facto relationship with his now wife. The witness stated that he and his wife were led to believe that all they needed to provide were documents such as financial documents which would be sufficient to convince the Department of the existence of a de facto relationship. The applicant stated that it was only since the cancellation that he realised that the advice that he and his wife had been given by their former migration agent was erroneous. The applicant stated that he did not believe that he had given incorrect information in his mother’s Subclass 890 visa as a secondary visa applicant. The hearing concluded.

3. The applicant provided a comprehensive statutory declaration to the Tribunal dated 16 May 2018. The applicant’s wife provided a comprehensive statutory declaration to the Tribunal dated 29 January 2019. Both of these declarations have been duly considered by the Tribunal.

   DID THE APPLICANT PROVIDE INCORRECT INFORMATION IN HIS SUBCLASS 890 VISA

4. The Department determined that incorrect information was provided by the applicant in the Subclass 890 visa application that was lodged on 24 September 2014 by his mother. In that application, the applicant, who was a secondary visa applicant, advised that he had never been married or been in a de facto relationship.

5. The applicants now wife Jingxin Zhang, lodged a Partner visa application with the Department of Immigration on 2 December 2015 in which she was sponsored by the applicant. . In that application the couple declared that they had been in a de facto relationship since 2 October 2013.  The Department determined that the information provided in this application contradicted that provided in the applicant’s mother’s Subclass 890 application and consequently the Department determined that the applicant had provided incorrect information in his Subclass 890 application.

   WAS THE APPLICANT IN A DE FACTO RELATIONSHIP AT TIME OF APPLICATION AND DECISION IN THE 890 APPLICATION?

6. The evidence before the Tribunal at review indicates that the applicant’s wife arrived in Australia in October 2013 to study.  The Partner visa application lodged in December 2015 states that the applicant and his now wife were in a de facto relationship from October 2013.

7. The evidence before the Tribunal indicates that prior to her arrival arrangements had been made by the applicant’s wife for her to be accommodated in a homestay arrangement with a family in Australia. The applicant’s wife felt uncomfortable about an arrangement where she was to stay with strangers and the applicant’s wife was concerned about a homestay that was located a long distance from her place of study in Sydney. As the applicant’s wife’s parents knew the applicant’s parents, an arrangement was made between the families for the applicant’s wife to move into the applicant’s family’s home in Mascot on a short term basis after she arrived in October 2013. The evidence before the Tribunal indicates that the applicant’s wife was accommodated in her own bedroom.  The evidence indicates that the applicant and his wife had only met each other in China on one occasion in 2011 prior to her arrival in October 2013.  This evidence indicates that the couple in October 2013 at the time of the applicant’s wife’s arrival in Australia could not have formed the requisite intention to commit to a shared life to the exclusion of all others at this point in time.

8. The evidence before the Tribunal at the time of her arrival and during her studies indicates that the applicant’s wife was financially supported by her parents to meet her cost of living expenses and to meet the cost of her education in Australia. The evidence before the Tribunal indicates that when the applicant’s wife resided with the applicant’s family from October 2013 there was no relationship between the applicant and his now wife. The evidence indicates that they maintained separate bedrooms. The evidence indicates that the relationship evolved over time and by the end of 2014 the applicant and his now wife had become good friends and spent a lot of time together but there was nothing beyond a friendship at that point in time.

9. The evidence before the Tribunal indicates that around the time of the grant of the Subclass 890 visa on 22 September 2015 the applicant went to his then migration agent to formalise arrangements around the grant of permanent residence. The evidence indicates that the applicants now wife, accompanied the applicant to this meeting. The applicant’s wife at that time had questions pertaining to her own migration status and had attended the migration agent to obtain information about the prospective lodgement of a skilled visa application. That agent advised the couple that it may be faster and easier to lodge a Partner visa application if there was any commitment between the couple to a relationship going forward. The migration agent questioned the couple about any feelings they had for one another, about their living arrangements and the agent suggested that the couple could open up a joint bank account and the migration agent’s advice to the couple was that it would be more expedient to lodge a Partner visa application on de facto grounds rather than pursue a skilled visa application. The couple followed the agent’s advice and they opened a joint bank account. They then pursued the Partner application and they now claim that they were not cognisant of the meaning of a de facto relationship namely, a commitment to a shared life together to the exclusion of all others, and were under the misapprehension that a relationship of boyfriend and girlfriend came within the ambit of this definition.

10. The applicant’s wife in her evidence to the Tribunal gave a consistent account of the meeting with the migration agent that she attended with the applicant in September 2015. The evidence indicates that the applicant’s wife made legitimate enquiries about the prospect of skilled migration to Australia. The applicant’s wife’s evidence was that the Migration Agent planted a seed with the couple that they would be best pursuing a Partner application on de facto grounds. The applicant and his wife identified and gave consistent evidence that the relationship became a committed one in late 2015, at which time they opened up a joint bank account together at the suggested of the applicant’s former migration agent. The applicant’s wife gave evidence that the applicant proposed to her in 2016 and that they travelled together to China in February 2016 so that the applicant could ask his parents-in-law to consent to the marriage.

11. The Tribunal accepts the evidence of the applicant’s wife that she and the applicant were not in a de facto relationship from October 2013 and that they were not in a committed relationship to the exclusion of all others until late 2015 after the grant of the Subclass 890 visa. The evidence provided by the applicant’s wife and the applicant corroborates the fact that they were provided with erroneous information pertaining to the definition of a de facto relationship by the applicant’s previous migration agent in September 2015 which they acted upon in good faith.

12. The Tribunal has had regard to the Partner visa application. With regard to the financial aspects of the relationship the application notes that “the applicant and the sponsor were both supported by their parents. Since the applicant came to Australia in October 2013, the applicant started to live in the sponsor’s family as a family member and the sponsor’s mother supports them to live in the house. The applicant is an international student; her tuition fees and daily spending are supported by her parents.”  This evidence indicates that during their respective studies the applicant and his wife were supported by their parents to meet their education and cost of living expenses and corroborates the applicant’s assertion that at the time of the 890 visa application and visa grant he was a dependent member of his mother’s family unit.

13. The evidence before the Tribunal indicates that the Partner visa application has now been withdrawn.

14. The evidence before the Tribunal at review indicates that the applicant has been in Australia since 2012. The evidence indicates that the applicant has studied a range of courses in Australia since 2012 completing tertiary studies in 2017. The evidence before the Tribunal at review indicates that at the time of the lodgement of the Subclass 890 visa the applicant was a dependent member of the family unit of his mother. The evidence that has been provided to the Tribunal at review corroborates the fact that the applicant was studying, and living with his mother who provided financial support to the applicant to enable him to pursue his studies and meet cost of living expenses.

15. The evidence before the Tribunal at review indicates that at the time of the lodgement of the Subclass 890 visa in September 2014 that the applicant and his now wife were close friends and that the couple had not committed to a mutual commitment to a shared relationship to the exclusion of all others until around late 2015 and this is corroborated by the lodgement of the Partner visa application in December 2015.  The evidence indicates that the applicant proposed to his now wife in 2016.

16. The Tribunal notes that the applicant’s visa was cancelled on the basis that he provided incorrect information in the Subclass 890 visa pertaining to his relationship status. However as has been noted the evidence before the Tribunal at review is sufficient to leave the Tribunal to find that the applicant and the sponsor were not in a committed relationship to the exclusion of all others at the time of the lodgement of the Subclass 890 application in September 2014 or at the time of visa grant in September 2015.  There has been substantial evidence that has been provided to the Tribunal to satisfy it that at the time of the lodgement of the Subclass 890 visa in September 2014 and at the time of the grant of the visa in September 2015 that the applicant was a dependent member of the family unit of his mother, the primary visa applicant.

17. The Tribunal finds on the basis of this evidence that the applicant did not provide incorrect information in his mother’s Subclass 890 visa application in which he was a secondary visa applicant.

18. The evidence before the Tribunal is such that the Tribunal finds that there was no non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 890 (Business Owner) visa.

    John Cipolla
    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.

    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.