Nauli (Migration)

[2019] AATA 1798

Nauli (Migration) [2019] AATA 1798 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Wynda Nauli

CASE NUMBER:  1722107

DIBP REFERENCE(S):  BCC2017/2374834

MEMBER:Lilly Mojsin

DATE:30 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 30 January 2019 at 11:27am

CATCHWORDS

MIGRATION – cancellation –  Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – incorrect information provided on passenger card – failure to declare – relevant powers of cancellation – non-compliance – weight given to genuine documents – applicant provided misleading information –  decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 97, 101-105, 107-109, 113, 115, 140, 499, 496, 504, 506,
Migration Regulations 1994 (Cth), rr 2.41, 3.01, 3.02, Public Interest Criterion (PIC) 4013

CASES

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided an incorrect answer in her incoming passenger card and had therefore not complied with s.102(b) of the Act. 

3. The applicant appealed that decision to this Tribunal, annexing a copy of the decision made by the delegate.

4. The applicant did not appear before the scheduled Tribunal on 6 December 2018 to give evidence and present arguments. The applicant, by letter of  requested that the Tribunal deal with her application on the papers/

5. The applicant was represented in relation to the review by her registered migration agent.

6. The issue in the present review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant was granted a subclass 457 temporary work visa on 12 March 2015 which is due to expire on 12 March 2019

8. The delegates decision, attached to the application for review, stated that the applicant was arriving in Australia on 17 April 2017 and upon examination of her baggage by Australian Border Force officers it was found that the applicant had 17,180 cigarettes in her possession and she had failed to declare in her incoming passenger card more than 50 cigarettes or 50g of tobacco products.

9. On 18 August 2017 the delegate sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) of her visa under s.109 of the Act.  The breach particularised in the notice was the failure of the applicant to declare in her incoming passenger card more than 50 cigarettes or 50g of tobacco products.

10. In a submission to the Tribunal, made by the applicant’s adviser on, the adviser stated that in response to the NOICC that s97 defines what is a passenger card and what information can be sought on a passenger card. It is by reference to the parameters contemplated by s506(2) and s504(l)(c). The adviser queried the edition of the passenger card referred to and sought details of specific regulations contemplated by sections 506(2) and 504(l)(c) with respect to passenger cards.

11. On 24 August 2017 the applicant’s adviser sought information from the Department as to whether the passenger card in question is an approved form and the source of that approval and where the adviser might access a copy of the relevant approval. The adviser opined that the relevant declaration about the quantity of alcohol arose in the context of a customs declaration which is a different head of power under the Constitution.

12. The adviser further stated that if the form is being used for multiple purposes (immigration, customs, quarantine, statistical, health etc...) then how did a Customs question link through to the relevant part of the Migration Act 1958 which under Subdivision C relates to Visas as that subdivision creates the power to make regulations concerning passenger cards and also enlivens the relevant duty to complete a passenger card truthfully.

13. The adviser also sought details of any regulations promulgated by either DIBP or Customs which permits a passenger card to incorporate a Customs declaration?

14. On 30 August 2017 the applicant’s adviser wrote to the Department and denied any breach of s102 of the Act by reason of the applicant’s statement concerning more than 50 cigarettes or 50g of tobacco products she had in her possession. The advisor opined that the relevant part of the passenger card clearly pertains to customs and excise and has nothing at all to do with a visa. The passenger card is not an approved form. The Act although permitting the making of regulations with respect to passenger cards is nevertheless limited by the combined effect of s504(1)(c) and s506 and in particular s506(3). In the absence of any specific regulations those questions appear to be limited to those matters contemplated by subsection 3. Absent any regulation extending the operation of Section 506(3) there can be no breach of the requirement at Subdivision C of the Act which is limited to Visas.

15. The applicant’s adviser further opines that the NOICC relies upon the words appearing at s102 of the Act. Contextually s102 imports an obligation to fill in a passenger card to ensure that all questions are answered and that all answers are correct. The heading at Subdivision C states “Visas based on incorrect information may be Cancelled”.  In the current review the context is established by the heading and is clearly contemplated to relate specifically to the cancellation of visas “based on incorrect information”. There is no suggestion of any antecedent conduct underpinning the original visa grant.

16. The advisor also states that s113 of the Migration Act 1958 applies to the extent that it is protective of the visa grant where there has been a full disclosure of all material facts and circumstances. Thus, applying the “golden rule” of statutory interpretation (plain meaning of words) s113 contemplates the operative part are the words “in relation to the visa” are not defined but there is a requirement for a clear temporal link between the conduct ( s 101 to s105 inclusive) and the visa.

17. The proposition that the adviser seeks to advance is that the visa was granted on 12 March 2015 and the breach of s101 (subject to the “approved form”, scope of regulation and delegation arguments) allegedly took place on 17 April 2017, 2 years after the visa grant. Even if s113 was protective then it would have a limited scope and could only be protective in the defined context of the visa grant post immigration entry subject to their having been full disclosure of all material matters. The alleged conduct said to enliven the cancellation of the visa is simply too remote from the facts and circumstances underpinning the initial visa grant and the fact of immigration clearance in the context of that grant. The fact of an individual seeking entry to Australia as the holder of a visa (in this case an unexpired 457 visa) requires that person, irrespective of the fact of them holding a visa, to be “immigration Cleared” and to be granted an entry permit. In the current review the applicant for review was immigration cleared on 17 April 2017 and she was necessarily compliant with s166 of the Act.

18. It was also submitted that s 506 refers to a minimum requirement (“but are not limited to”) for questions concerning defined matters (subject to the regulations) with respect to those matters listed in s506(3). It was submitted that absent any regulation under the Migration Act 1958 requiring a person to answer any other questions about goods and excise, it is not permitted by the Migration Act 1958 and or the Regulations.

19. The advisor also stated it was on that basis that the Tribunal may find that the passenger card completed by the applicant, to the extent of its compliance with the Migration Act 1958 and the regulations, necessarily limits the scope of section 102 to the extent of that which is permissible by the Act and the regulations. Those parts which are not relevant to the Migration Act and regulations could not inform the alleged breach of s102. These powers under section 107,108 and 109 are cancellation powers and should not be construed widely. They are not facilitative, they are punitive and operate in limited circumstances. The relevant alleged breach is said to be section 102 and the breach is not made out.

20. The adviser also sought that by reason of recent problems infecting the exercise of delegated powers by the Department that the Tribunal initiate enquiries of the Department to ensure that the person identified as “[name deleted]” was in fact the occupant of position number [number deleted] at 12.53pm AEST on 14 September 2017 and that position number [number deleted] was delegated to exercise the relevant powers of cancellation.

    REASONS AND FINDINGS

21. 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.

22. Relevant to the circumstances of this review, s 102 provides: Passenger cards to be correct

    A non-citizen must fill in his or her passenger card in such a way that:

    (a) all questions on it are answered; and

    (b) no incorrect answers are given.

23. 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.

24. Section 109 provides that if the Minister decides there has been non-compliance, the visa holder's visa may be cancelled after considering any response provided by the visa holder to the notice and having regard to 'any prescribed circumstances'.

25. The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 [regs]:

    (a) the correct information;
    (b) the content of the genuine document (if any);
    (c) 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;
    (d) the circumstances in which the non-compliance occurred;
    (e) the present circumstances of the visa holder;
    (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
    (g) any other instances of non-compliance by the visa holder known to the Minister;
    (h) the time that has elapsed since the non-compliance;
    (j) any breaches of the law since the non-compliance and the seriousness of those breaches; and
    (k) any contribution made by the holder to the community.

26. While the factors specified in r.2.41 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.

27. Procedural Advice Manual PAM3 'General visa cancellation powers' requires delegates to also have regard to matters such as, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

28. The Minister may delegate any of his or her powers under the Act to another person (s 496) and may issue directions about the performance of those functions and the exercise of those powers by others (s.499). A power to cancel under s.109 is one of the powers the Minister can delegate to an officer of the Department under s.496 and the applicant has not disputed this.

29. The applicant elected not to attend a Tribunal hearing. The Tribunal relies therefore on the information provided to the Department and to the Tribunal.

30. The applicant claims that the question in the incoming passenger card about declaring more than 50 cigarettes or 50g of tobacco products was not prescribed under the regulations and therefore did not form part of the passenger card for the purposes of s.102(b), and therefore there was no non-compliance within the meaning of ss.107 and 109 of the Act. It was further submitted that the power to cancel a visa under s.109 was only enlivened if the visa was granted on the basis of the incorrect information. It was therefore submitted that the ground for cancellation did not arise and there was no power to cancel the applicant's visa.

31. Further it was also raised by the applicant whether an incoming passenger card is a 'passenger card' for the purposes of s.102(b).

32. Therefore, in the present review there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. The applicant does not dispute the failure of the applicant to declare in her incoming passenger card more than 50 cigarettes or 50g of tobacco products on 17 April 2017.  As the NOICC included particulars of the possible non-compliance and whether the other statutory requirements in s.107 were met the delegate was able to issue the notice under s.107 on the basis that there had been non-compliance with s.102(b). The Tribunal is therefore satisfied that the delegate had reached the necessary state of mind to engage s.107 and the notice issued under s.107 complied with the statutory requirements and is valid. This is because the NOICC provided clear particulars of the non-compliance alleged and sets out the relevant evidence relied on. The notice referred to the relevant sections of the Act and explained the relevance of those sections and otherwise complies with the statutory requirements set out in s.107.

33. The power under s.109 is only enlivened if the Tribunal is satisfied there has been non-compliance. Therefore the question is whether providing incorrect information in her incoming passenger card establishes non-compliance for the purposes of s.102(b) and, if so, whether there was non-compliance in the way described in the s.107 notice.

34. Having regard to the submissions made by the applicant the Tribunal determines the following questions:

35. Does an incoming passenger card fall within the definition of a 'passenger card' for the purposes of establishing non-compliance with s.102(b) and does the question regarding the more than 50 cigarettes or 50g of tobacco products being brought into Australia lawfully form part of a 'passenger card' as provided for by the Act or Regulations as at 17 April 2017?

36. The definition of 'passenger card' for the purposes of Subdivision C of Division 3 of part 2 of the Act and specifically, whether an incoming passenger card falls within the meaning of passenger card within s.102(b) is set out in s 97 which provides: “passenger card” has the meaning given by s.506(2) and, for the purposes of s.115, includes any document provided for by regulations under s.504(1)(c).

37. Section 506(2) is relevant to the giving of information on a passenger card by non-citizens travelling to Australia and therefore is relevant to incoming passenger cards. The subsection states as follows:

    The regulations are to provide for the giving of information, in the form of answers to questions on a form, to be known as a passenger card, by non-citizens travelling to Australia, other than non-citizens exempted by the regulations.

38. Section 97 broadens the definition, for the purposes of s.115, to include any document provided for by regulations under s.504(1)(c).

39. Relevantly, s.115 states:

    115 Application of Subdivision

    (1) This Subdivision applies to:

    (a) applications for visas made; and

    (b) passenger cards filled in;

    on or after 1 September 1994.

40. From 1 July 2017, the requirement to complete a passenger card when departing Australia was removed as the information collected on a passenger card is now obtained from other sources. The Tribunal considers however that the applicable provisions are those which were in effect at the date of the non-compliance ie on 17 April 2017.

41. As at 17 April 2017, r.3.01 relevantly provided for people entering Australia to provide a completed passenger card to a clearance officer or an authorised system.  Accordingly as at 17 April 2017, an 'incoming passenger card' was a document provided for by Regulations under s.504(1)(c). Section 115 states that Subdivision C of Division 3 of part 2 of the Act (being ss.97-115) applies to passenger cards filled in on or after 1 September 1994).

42. As s.97 provides that such a document is a passenger card for the purposes of s.115, the Tribunal considers that the effect of ss.97 and 115, when read together, is that incoming passenger cards are included in the definition of 'passenger card' for the purposes of s.102.

43. The Tribunal notes that both rrs.3.01 and 3.02 do not restrict matters that may be asked on a passenger card to those listed in r.3.01(4) and there is nothing in the Regulations to suggest that the matters in r.3.01(4) provide an exhaustive list of the types of questions that can be asked on passenger cards.

44. Therefore the Tribunal considers that passenger cards can request information about matters not listed in r.3.01(4) and that the terms of the provisions cannot be read as restricting the matters that may be asked on a passenger card to those listed in r.3.01(4). In this case, the information sought on the passenger card that was completed by the applicant included a question about more than 50 cigarettes or 50g of tobacco products being brought into Australia.

45. The Tribunal is satisfied that the passenger card is permitted to request this information under the regulations and that the question forms part of the passenger card as provided for by the Act or Regulations.

46. In summary, the Tribunal rejects the submission made by the applicant regarding the validity of the passenger card. The Tribunal is satisfied that the passenger card, which the Tribunal has found includes incoming passenger cards, can lawfully request information regarding more than 50 cigarettes or 50g of tobacco products being brought into Australia and that the question forms part of the passenger card as provided for by the Act or Regulations. It follows, that an incorrect answer provided by the applicant when completing her incoming passenger card would be considered an incorrect answer for the purposes of s.102(b).

47. For completeness, in light of the above findings, the Tribunal rejects the applicant’s submission that the questions asked are a Customs declaration.

48. The applicant has submitted that the cancellation powers set out in Division 3 Subdivision C were limited to the cancellation of visas granted on the basis of incorrect information. The applicant also submitted that because the decision to grant the Subclass 457 visa was not based on incorrect information and there was no connection between the grant of the applicant's visa and the incorrect information, the power to cancel under s.109 did not arise and there must be a connection between the incorrect information and the application for the visa.

49. Section 107 'Notice of incorrect applications', provides that if the Minister considers that the visa holder did not comply with s.102(b), which requires a non-citizen to fill in their passenger card in a way that no incorrect answers are given, the Minister may give the visa holder a s.107 notice. The definition of 'passenger card', has the meaning given by s.506(2) and, for the purposes of s.115, includes any document provided for by regulations under s.504(1)(c) of the Act. Section 115(1)(b) specifically provides that Subdivision C applies to 'passenger cards filled in on or after 1 September 1994'. The Tribunal therefore finds that a non-citizen's failure to comply with s.102(b) enlivens the Minister's power under s.109 to cancel the non-citizen's visa even if the incorrect information does not relate to the grant of the visa which is the subject of the cancellation notice.

1. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.102(b) of the Act by answering 'No' to the question about more than 50 cigarettes or 50g of tobacco products being brought into Australia. Section 102(b) requires that a non-citizen must fill in his or her passenger card in such a way that no incorrect answers are given. The applicant completed a passenger card on 17 April 2017 on her arrival in Australia. On that passenger card the applicant ticked the 'No' box in answer to the question about having more than 50 cigarettes or 50g of tobacco products. The facts are not disputed by the applicant. The Tribunal therefore finds that there was non-compliance with s.102(b) by the applicant in the way described in the s.107 notice.

2. 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).

3. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

   ·     the correct information

   ·     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.

4. 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.

5. These factors are discussed below:

   (a)        the correct information

6. The correct information is that the applicant held 17,180 cigarettes on her arrival into Sydney on 17 April 2017.  The Tribunal gives weight to this factor in favour of cancellation.

   (b)        the content of the genuine document (if any)

7. As this is not relevant to this review the gives no weight to this factor against or for cancellation.

   (c)        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

8. On her arrival in Australia on 17 April 2017, the applicant was selected for baggage examination by Australian Border Force officers. Upon examination of her baggage, officers located 17,180 cigarettes. The Tribunal is satisfied that the Department was therefore aware of the incorrect information when the applicant was immigration cleared on 17 April 2017. The Tribunal gives weight to this factor in favour of cancellation.

   (d)        the circumstances in which the non-compliance occurred

9. The non-compliance occurred when the applicant provided incorrect information in her incoming passenger card dated 17 April 2017. In response to the NOICC, the applicant did not provide reasons surrounding the circumstances in which the non-compliance occurred and the applicant did not appear before the Tribunal to allow the Tribunal to explore the circumstances for non-compliance. The Tribunal gives weight to this factor in favour of cancellation.

   (e)        the present circumstances of the visa holder 

10. The applicant advised the Department that she has been in a relationship for one year and lives with her boyfriend. She is employed as a manager of a cafe in Sydney, and has been employed there for the past 4 years. She has resided in Australia for 7 years and intends to eventually obtain permanent residency. The Tribunal been unable to explore with the applicant her employment status. As the applicant did not appear before the Tribunal and requested the Tribunal to make a decision on the information before it, the Tribunal has been unable to obtain up to date information regarding the applicant’s present circumstances. Therefore the Tribunal gives no weight to this factor for against or for cancellation.

    (f)         the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act

11. The visa holder has responded to the NOICC dated 18 August 2017. The Tribunal places no weight on this factor against or for cancellation.

    (g)        any other instances of non-compliance by the visa holder known to the Minister

12. There is no evidence before the Tribunal to suggest that the applicant has not complied with the Migration Act or regulations other than the present application before the Tribunal. The Tribunal give no weight to this factor against or for cancellation.

    (h)        the time that has elapsed since the non-compliance

13. The non-compliance occurred when the applicant provided incorrect information in her incoming passenger card dated 17 April 2017. Approximately eighteen months have elapsed since the non-compliance. The Tribunal gives no weight to this factor against or for cancellation.

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches

14. There is no evidence before the Tribunal to suggest that there have been any further breaches of the Migration Act or regulations by the applicant since the non-compliance on 17 April 2017. The Tribunal gives no weight to this factor against or for cancellation.

    (k) any contribution made by the holder to the community

15. The applicant has not submitted any evidence of any contribution made by her to the community. The Tribunal gives no weight to this factor against or for cancellation.

16. In regard to the following other matters:

    •           Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.

17. There is no information before the Tribunal to suggest that there are persons in Australia whose visas would be cancelled consequentially therefore the Tribunal gives no weight to this factor against or for cancellation.

    •           Whether Australia has obligations under relevant international agreements that would or may be breached

18. There is no information before the Tribunal to suggest that this applicant would engage Australia’s international obligations, and the cancellation of the visa would lead to a breach of Australia’s international obligations. Therefore, the Tribunal gives no weight to this factor against or for cancellation.

    •           Whether there are mandatory legal consequences to a cancellation decision.

19. The likely consequences of a decision to cancel the visa holder’s visa are listed below:

    (i)         It would enliven section 48 of the Act, limiting the types of visas the former visa holder could apply for.

    (ii)        It would result in the former visa holder becoming an unlawful non-citizen (UNC) and liable to be detained and removed from Australia.

    (iii)       It may result in the visa holder being subject to Public Interest Criterion (PIC) 4013, depending on the visa applied for.

20. The applicant has provided misleading information to the Department. The Tribunal has been unable to explore with the applicant the likely consequences of the decision. While the applicant would be liable to immigration detention if her visa were cancelled, she would be permitted to apply for a Bridging E Visa or leaving Australia if her visa is cancelled. The Tribunal gives no weight to this factor against or for cancellation.

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

22. In regard to a request to initiate enquiries of the Department to ensure that the person identified as “[name deleted]” was in fact the occupant of position number [number deleted] at 12.53pm AEST on 14 September 2017 and that position number [number deleted] was delegated to exercise the relevant powers of cancellation. There is no evidence before the Tribunal to suggest that the delegate was not delegated the relevant cancellation powers. Further, this is not a matter for this Tribunal and undertaking an enquiry into the delegate’s delegation was not sought by the applicant to the Department. The request goes well beyond the scope of this review.

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Lilly Mojsin
    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.

    102Passenger cards to be correct

    A non‑citizen must fill in his or her passenger card in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given.

    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.