Nasir (Migration)

[2023] AATA 2040

Nasir (Migration) [2023] AATA 2040 (31 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Awais Nasir
Ms Habiba Awais
Ms Uswa Awais

CASE NUMBER:  2206633

HOME AFFAIRS REFERENCE(S):          BCC2019/3928651

MEMBER:George Hallwood

DATE:31 January 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 31 January 2023 at 4:11pm

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – Network Administrator – ground for cancellation – incorrect information in visa application – employment history – bogus document – skills assessment – payslips – consideration of discretion – grant of visa not based on incorrect information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140

Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2.    The delegate cancelled the visa on the basis that the applicant did not comply with sections 101(b) and 103 of the Act because: he provided incorrect information in his application for a Skilled – Regional State Nomination (subclass 489) visa; and, that he provided bogus documents. 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.    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 as a consequence of that cancellation, not by a decision but 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.

4.    Mr Awais Nasir appeared before the Tribunal on 1 December 2022 to give evidence and present arguments.  

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.

9.    On 30 April 2019 Mr Nasir was granted a Skilled – Regional State Nomination (Provisional) (subclass 489) visa.

10.      On 9 March 2022 the Department of Home Affairs issued a Notice of Intention to Consider Cancellation Under Section 109 of the Migration Act 1958 providing reasons for their intention and an opportunity for Mr Nasir to respond.

11.      On 15 March 2022 Mr Nasir provided a response to the delegate.

12.      On 2 May 2022 the delegate notified Mr Nasir that his visa was cancelled.

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

13.      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 sections 101(b) and 103 of the Act in the following respects:

o   An open source search by the Department found a CV apparently belonging to Mr Nasir which does not list any employment with PECS but instead lists employment with:

§  UCE International Pvt Ltd (Huawei) from February 2013 – August 2013;

§  Netkom Technologies Pvt Ltd (Huawei) from September 2014 – October 2015; and

§  TurnoTech Pvt Ltd from November 2015 onwards (it is not known when the CV was produced).

·     Section 101(b) requires that a non‑citizen fill in or complete their application form in such a way that no incorrect answers are given or provided. The notice raised that:

o   In the ‘Skills Assessment’ section of Mr Nasir’s Application for Points Based Skilled Migration form dated 17 November 2017 (the Application), Mr Nasir answered “yes” to the question “Does the applicant have a suitable skills assessment from the relevant assessing authority, which is not for a Subclass 485 (Temporary Graduate) visa?”

§  the delegate found that the skills assessment undertaken by the assessing body Australian Computer Society is bogus as it was based on incorrect or misleading information.

o   In the Application section titled ‘Employment’, in answer to the instruction “Give details of employment undertaken in the last ten years.” Mr Nasir provided a list of employment details since 1 May 2009.

§  The delegate found the employment history to be incorrect because they:

·     Did not believe it was feasible that the applicant could study full time at the Mirpur University of Science and Technology while working full time for Professional Engineers Consulting Services (PECS) during the period October 2009 and February 2014;

·     Did not believe the applicant could be working full time for NetKom Technologies while working full time for PECS over a ten month period between October 2014 and October 2015;

·     Did not believe the applicant could have been working full time for Professional Engineers Consulting Services PECS and also be employed by Turnotech between November 2015 and September 2016; and

·     Had been unable to confirm with the managing partner of PECS, Mr Usman Javed, the date the applicant commenced work with PECS or the personal details of the applicant.

o   At question 19 of the applicant’s ‘Personal Particulars for Assessment Including Character Assessment’ dated 15 November 2018 (Form 80), in answer to the instruction “Give details of all employment and unemployment” Mr Nasir provided details of employment from September 1991 (when he was born) until the date of completing the form.

§  The delegate found the employment and unemployment details to be incorrect because they:

·     Did not believe the applicant could have worked full time with Netkom Technologies and at the same time worked full time at PECS;

·     Did not believe the applicant could have worked full time at PECS and also worked at Turnotech between November 2015 and September 2016; and,

·     Believed the applicant worked at UCE International Pvt Ltd (Huawei) from February 2013 to August 2013 and so could not have worked at PECS on a full-time basis during that period.

·     Section 103 requires that bogus documents not be given. The notice raised that:

o   On the basis of the delegate’s belief in relation to the applicant’s inability to study full time and work full time, and the belief that the applicant could not have worked two jobs at the same time, the delegate found that the Positive Skills Assessment from Australian Computer Society was obtained because of a false and misleading statement and so is a bogus document.

o   On the basis of the delegate’s belief in relation to the applicant’s inability to work two jobs at the same time, the delegate found the payslips purportedly issued by PECS during the period 2014 to 2016 to be bogus documents.

o   While the applicant’s employment with PECS between 2009 and 2018 was verified verbally by an employee of PECS, the delegate had concerns about the veracity of the information because there was inconsistent information provided and the employee was unable to confirm the employment fully against company records.

Consideration of section 101(b)

14.      The Tribunal firstly considered whether Mr Nasir breached Section 101(b) by providing incorrect answers.

15.      Mr Nasir’s Application describes his employment history over the previous ten years. The employment history question specifically asks the applicant to: “Give details of employment undertaken during the 10-year period before the invitation to lodge this application” and Mr Nasir’s answers include four periods of employment with PECS:

·     1 May 2009 to 30 September 2011 as a Network Programming Officer – Investigate, troubleshoot and resolve problems in existing and newly developed computer network operation/system:

·     1 October 2011 to 31 December 2013 as Network Engineer – Testing the performance and efficiency of developed computer and network systems through implementation of formal testing programs in accordance with established testing protocols;

·     1 January 2014 to 31 December 2014 as Senior Networking Specialist  - conducting critical analysis for complex network infrastructures and system designs for the development, configuration and integration of computer and network systems; and

·     1 January 2015 to current as Senior Networking Specialist – owning complete responsibility for optimal configuration and operational readiness of computer and network systems.

16.      At the hearing Mr Nasir described PECS as a small construction engineering business employing between 10 and 12 people. He said the business consisted of three sections: a design and architectural group of a couple of people; a construction group of five or six people; and, an IT section of four or five people.

17.      Mr Nasir said that he went to Mirpur University of Science and Technology between 2009 and 2013, and his degree was conferred in 2014. He says that while the university notionally says the contact hours are between 8am and 1pm daily, on some days there were no lectures and on others there would only be one lecture. He said he started working while he was at university in 2009 to pay the bills, and that he received about 9,000 PKR which was less than $100 a month for his work helping with network installations in the buildings PECS were developing. Once he graduated his salary doubled to about 18,000 PKR.

18.      The Tribunal heard from Mr Nasir that he had started working second jobs when he was able to get them because he wanted some diversity in his experience and because he was able to earn extra money to survive. He said he had a plan to come to Australia with skills and the extra jobs allowed him to do this.

19.      Mr Nasir said that while he was working full time with PECS he also worked from February 2013 to August 2013 part time with UCE International. He said he also worked from October 2014 to October 2015 with NetKom Technologies, and from November 2015 to September 2016 with Turnotech. His second jobs were all drive test jobs in the field. This required him, when called, to attend sites that were subject to customer complaints to check network signal strength, where possible rectify the causes of the weak signals, and provide reports on what he had done. He said he was able to do this work as well as his job with PECS without any problems.

20.      When asked about whether he was working two jobs full time, Mr Nasir said that in Pakistan there is no real label of ‘full-time’ or ‘part-time’. He said he did the work that was given to him and his employers were satisfied: “they don’t chase you, you solve the issues and get on with it”. He said he worked on occasion up to 20 hours in a day but that each job demanded a minimum of 30 hours a week and PECS was his main employer.

21.      A reference from PECS dated 2 July 2018 and signed by the Chief Executive Mr Tanveer Anjum Qureshi states that Mr Nasir worked as a full-time permanent employee with them from 1 May 2009 until the date of the reference.

22.      A letter from PECS dated 14 March 2022 with the subject heading: Verification of Experience Letter reference # 986/PECS/2018 dated 2 July 2018 issued to Mr Awais Nasir and response to the queries regarding his job with us confirms Mr Nasir’s full-time permanent employment with PECS. This letter confirms that Mr Nasir’s work was performed remotely, could be completed during the day or night, and that Mr Nasir had always provided successful results / reports. The delegate had been concerned that PECS had provided inconsistent information in relation to Mr Nasir’s employment and had not been forthcoming with certain details about Mr Nasir. The delegate was also concerned that PECS did not appear to have had a web presence until 2015. The Tribunal is satisfied that each of these concerns are answered by PECS in their letter. This letter is signed by the Chief Executive, Mr Qureshi and by Mr Usman Javed, Managing Partner and HR Coordinator.

23.      An ‘Experience Certificate’ from Turnotech dated 17 October 2022 and signed by the HR Manager, Mr Maryam Abdul Razzaq confirms that Mr Nasir worked for them as a LTE Drive Test Engineer from 12 November 2015 to 24 September 2016 and that this work was on field “doing walk test on affected areas of network as per customer complaints”.

24.      The Application form required: “Give details of employment undertaken in the last ten years.” Mr Nasir told the Tribunal that he only provided details of his main employment on his Application.

25.      The Tribunal is satisfied that Mr Nasir worked at PECS from 2009 until completing the Application form and so is also satisfied that Mr Nasir did not give or provide incorrect answers on the Application form.

26.      Mr Nasir’s Form 80 includes information about his employment and unemployment. The Form 80 question is different to the question in the Application, asking the applicant to: ‘Give details of all employment and unemployment’ [emphasis in original]. Employment is defined on the form as including: all paid employment; self employment / family business; work experience/internships; and, unpaid employment/volunteer work. Mr Nasir effectively provides the same answers to this question as he did in the application, combining the period after 1 January 2014 when he claimed to have worked as a Senior Networking Specialist but in two different roles. The instructions in Form 80, immediately before the space in which applicants are to provide their employment details, states: “Note: Provide your employment and unemployment history with no gaps in the timeline. If there are gaps, you must provide an explanation at Part T – Additional information.” [emphasis in original].

27.      The Tribunal notes that Mr Nasir did not leave any gaps in the timeline of the Form 80.

28.      On 3 May 2022 Mr Nasir provided a ‘Notification of incorrect answer(s)’ form (Form 1023) correcting the answers he had provided at question 19 of his Form 80 to now include his employment with Netkom Technologies, TurnoTech, and UCE International. Mr Nasir told the Tribunal that this employment was relevant to telecommunications roll out of internet, but was not of relevance to his work and qualification in Pakistan as a software engineer and in Australia as a network administrator.

29.      Although there is nothing that suggests any intent to deceive the Department, the Tribunal is satisfied that Mr Nasir did not include his employment with Netkom Technologies, TurnoTech, and UCE International in his Form 80 which requires that all employment be listed. This is a non-compliance that was in a manner particularised in the s107 notice.

30.      The Tribunal notes that the test in this matter is

31.      For this reason, the Tribunal finds the requirements of s101(b) were not met.

Consideration of section 103

32.      The delegate found that the Positive Skills Assessment from Australian Computer Society dated 30 August 2018 issued to Mr Nasir was obtained because of a false and misleading statement and so this assessment is a bogus document. This assessment considered Mr Nasir’s qualifications, and his experience since February 2014 once his Bachelor of Science in Engineering was conferred. Mr Nasir provided evidence of his work at PECS but not the work at Netkom Technologies, TurnoTech, and UCE International. The assessment found that Mr Nasir’s qualification was comparable to an AQF Bachelor Degree with a major in computing. His skills were assessed as suitable for migration under ANZSCO code 263112 (Network Administrator).

33.      Because the delegate was not satisfied that Mr Nasir could have worked full time in two jobs during the period October 2014 to September 2016, and had some concerns that Mr Nasir’s employment with PECS was not what it was purported to be; the delegate determined that the Positive Skills Assessment from Australian Computer Society was a bogus document.

34.      Further support for the genuineness of Mr Nasir’s employment at PECS are a number of payslips and bank statements provided by Mr Nasir and the evidence reported by a Border Force Officer on 13 February 2022.

35.      As has been previously stated, the Tribunal is satisfied that Mr Nasir’s employment with PECS during this period was full time and was genuine.

36.      The Tribunal is satisfied that the Positive Skills Assessment from Australian Computer Society was based on correct answers and genuine information.

37.      For this reason, the Tribunal is satisfied that Mr Nasir did not breach section 103 as bogus documents were not given.

Conclusion on non-compliance

38.      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?

39. 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).

40. 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.

41.      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.

42.      Mr Nasir provided a response to the ‘notice of intention to consider cancellation’ and has also provided further information to the Tribunal including oral evidence at this hearing. The evidence provided has been considered in relation to the relevant legislation and the Department’s Procedural Instruction General visa cancellation powers.

The correct information

1. Mr Nasir’s Form 80 required him to ‘Give details of all employment and unemployment’. He did not list all employment. The correct information is that Mr Nasir was working two jobs during certain periods of time from 2009 until 2017 including two full time jobs from October 2014 to September 2016.

2. I give this consideration some weight in favour of visa cancellation.

   The content of the genuine document (if any)

3. The document found by the delegate to be bogus because it was issued as a result of false or misleading information has been found no to be so by the Tribunal. This consideration has no relevance to the decision about visa cancellation when there are no bogus documents.

   Was the decision to grant a visa was based on incorrect information?

   46.      The particular relevance of the truthfulness of evidence relating to Mr Nasir’s full-time employment with PECS from February 2014 is that this information together with his Bachelor of Science in Engineering formed the basis of the experience used for the skills assessment dated 30 August 2018 by the assessing body, the Australian Computer Society. and the resulting points that were necessary for Mr Nasir to be granted a visa.

   47.      The Tribunal has found that the Positive Skills Assessment from Australian Computer Society was based on correct answers and genuine, albeit not comprehensive, information provided by Mr Nasir. Mr Nasir failed to list his second jobs during this period and including two full time jobs from October 2014 to September 2016.

   48.      For these reasons the Tribunal is satisfied that the decision to grant the visa was not based on incorrect information.

   49.      I give this consideration significant weight against cancelling the visa.

   The circumstances in which the non-compliance occurred

   50.      At the time of the non-compliance Mr Nasir was completing the Form 80. The applicant identified that English was not his native language and it was easy for him to not quite understand the requirements when completing forms.

   51.      Mr Nasir had previously completed the Application form that had a less detailed question, and had progressed further with his application on the basis of his answers to the employment question in that form. Mr Nasir told the Tribunal that he did not have any assistance from a migration agent when completing the forms although did speak to his brother who lived in Sydney. Mr Nasir simply put down what was a correct but incomplete employment history on the Form 80. He said he gave information he believed to be relevant.

   52.      On one hand the Form 80 is quite clear in terms of the requirements. On the other hand Mr Nasir’s reasons for non-compliance are convincing given the circumstances.

   53.      I do not give this consideration weight either way as it is evenly balanced.

   The present circumstances of the visa holder

   54.       Mr Nasir has lived in Australia for about three and a half years. His wife and daughter moved to Australia more recently.

   55.      The General Manager Logistics of Coca-Cola Europacific, Mr Phillip Parsons, has provided a letter of support dated 17 August 2021 describing Mr Nasir as a valued team member who provides systems support, warehouse management and coordination of customer orders. Coca-Cola Europacific Partners Australia intranet has provided blogs in relation to Mr Nasir describing his impressive “work ethic, team first mentality, and willingness to take on challenges”. This blog goes on to say:” You will not find a single person in our small corner of the world who has not drawn inspiration from this man”.

   56.      The Tribunal is impressed by the support Mr Nasir has received and continues to receive from his employers.

   57.      I give this consideration some weight against cancelling the visa.

   Subsequent behaviour concerning obligations under Subdivision C of Division 3 of Part 2 of the Act

   58.      When made aware that he incorrectly completed his Form 80 Mr Nasir took steps provide the correct information.

   59.      On 3 May 2022 Mr Nasir provided a ‘Notification of incorrect answer(s)’ form (Form 1023) correcting the answers he had provided at question 19 of his Form 80 to now include his employment with Netkom Technologies, TurnoTech, and UCE International.

   60.      I give this consideration some weight against cancelling the visa.

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

   61.      The Tribunal is unaware of other instances of non-compliance with ss 101–105.

   62.      For this reason, I allocate no weight to this consideration.

   The time that has elapsed since the non-compliance

   63.      It is more than four years since the non-compliance. Mr Nasir has since lived and worked in Australia and has a young family here. His life has moved on from when he was applying to come to Australia.

   64.      I give this consideration some weight against cancelling the visa.

   The seriousness and extent of any breaches of the law since the non-compliance

   65.      There is nothing before the Tribunal that suggests Mr Nasir has breached any laws in Australia, or elsewhere, since the non-compliance. Mr Nasir’s response to the Notice of Intent to Consider Cancellation confirms that he has not broken laws. All of the evidence before the Tribunal is that Mr Nasir is a law abiding, hard working family man.

   66.      I allocate no weight to this consideration.

   Any contribution made by the visa holder to the community

   67.      The previously discussed letter of support from Coca-Cola together with the Coca-Cola intranet blog indicate that Mr Nasir contributes to the community. The letter of support also highlights the important role Mr Nasir played during the pandemic ensuring stock availability on the shelves of shops. The warehouse in which he works also contributes to charitable food schemes including Foodbank.

   68.      I give this consideration some weight against cancelling the visa.

   Additional policy considerations

   69.      In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines set out a number of matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109. They are:

   ·whether there are persons in Australia whose visas would, or may, be cancelled under s 140;

   ·whether there are mandatory legal consequences to a cancellation decision;

   -    

   ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation;

   ·any other relevant matter.

   70.      Mr Nasir’s family would be affected by a decision to cancel his visa. Mr Nasir put to the Tribunal that visa cancellation would have a financial and psychological affect on him and his family. While the Tribunal has some sympathy for Mr Nasir’s assertions, it is clear that he would succeed wherever he lives and that he and his young family would commit to whatever circumstances they face. The Tribunal gives a small amount of weight to this consideration against cancelling the visa.

   71.      The Tribunal has considered the potential for: indefinite detention, prevention of making a valid application, and the potential for an unlawful non-citizen outcome; none of which are considered a realistic outcome in this case. No weight is given to this consideration.

   72.      By all accounts Mr Nasir has integrated well into Australian society. The Tribunal gives a small amount of weight to this consideration against cancelling the visa.

   73.      The weight of considerations in this matter militates strongly against visa cancellation.

   CONCLUDING PARAGRAPH

   74.      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

   75.      The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

   76.      The Tribunal has no jurisdiction with respect to the other applicants.

   George Hallwood
   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.