NGO (Migration)

[2019] AATA 1784

NGO (Migration) [2019] AATA 1784 (20 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr QUOC KHAI NGO
Mrs THI THANH HOA TRUONG

CASE NUMBER:  1721908

DIBP REFERENCE(S):  BCC2016/4051280

MEMBER:John Cipolla

DATE:20 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Statement made on 20 March 2019 at 11:18am

CATCHWORDS
MIGRATION – cancellation – 457 (Temporary Work (Skilled)) visa – Massage Therapist – applicant didn’t provide bogus documents pertaining to qualifications – genuine need for the position – applicant had the skills to be awarded qualifications– Decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105, 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 first named 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 did not comply with s.101 and s.103 of the Act. 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 14 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

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.

   Did the notice comply with the requirements in s.107?

8. The Tribunal has had regard to material on the Department’s file, including the s.107 notice, and 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 applicant was sent a s.107 notice on 7 August 2017. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 and s.103 of the Migration Act. The grounds for cancellation particularised in the Notice of Intention to Consider Cancellation (NOICC) was that the applicant in support of his application for a Subclass 457 visa provided a statement from the director of his sponsoring business True Nails Pty Ltd that he had been working with the business as a Massage Therapist since 2012. The delegate noted that in order to demonstrate sufficient skills to perform the position of Massage Therapist the ANZSCO occupational requirements were that the applicant held an associate degree, advanced diploma or diploma or in the absence of these formal qualifications at least 3 years of relevant experience. In support of the application for the visa the applicant provided photocopies indicating that he had been awarded a Diploma of Remedial Massage and a Certificate IV in Massage Therapy Practice issued to him on 21 March 2016 by the Australia Massage and Beauty Institute. The delegate noted in the NOICC that on the basis of the applicants answers to questions in his visa application, including the employment history provided and his educational qualifications, the delegate was satisfied that the applicant had the formal qualifications required and the relevant experience as a Massage Therapist and therefore met regulation 2.72(10)(e)(iv) of the Migration Regulations. The NOICC goes on to state that Departmental checks were conducted in Vietnam to verify the applicant’s employment in that country as a Massage Therapist along with checks pertaining to his employment in Australia which contradicted the information provided by the applicant in his application for a visa. The delegate went on to find that the applicant failed to comply with the requirements of s.101 of the Migration Act as he provided incorrect information and failed to comply with the requirements of s.103 of the Migration Act in so far as he had provided bogus documents pertaining to his qualifications as a Massage Therapist.

   The applicant’s response to the s.107 notice

10. In response to this notice the applicant stated the following.  The applicant advised that he worked for the business Hau Giang in Vietnam from March 2011 until June 2011. The applicant stated that when he prepared his resume he provided the wrong street number for the business providing 418 instead of 416. The applicant stated that he worked for the business Boss Palace between June 2011 and May 2012. The applicant described this business as a hotel offering other facilities. The applicant stated that he is aware that the business changed its name on a number of occasions. The applicant stated that he tried to find the former manager of this business to corroborate his employment but was not able to locate him.

11. The applicant stated that he worked for the sponsoring business True Nails between 2012 and 2015. The applicant stated that when he was first employed he assisted the owner with massage therapy. The applicant advised he would perform cupping and hot stone treatments before the massage which the owner Mr Nguyen delivered. The applicant stated that he also helped with muscle and tendon massage. The applicant stated that in February 2015 he left the job with True Nails because he found a job with Coles. The applicant advised that because of the uncertainty around work with Coles he ceased working with them and returned to True Nails. The applicant stated that between July 2015 and February 2016 he was not on the permanent roster with True Nails because of the uncertainty around his roster with Coles. The applicant stated that he resigned from his work at Coles in February 2016 and became a permanent part-time Massage Therapist with True Nails at this time. The applicant stated he now has a full-time position with True Nails.

12. The applicant also provided a Certificate IV in Massage Therapy Practice from the Australia Massage and Beauty Institute along with the associated academic transcript as well as a Diploma of Remedial Massage from the Australia Massage and Beauty Institute and the associated academic transcript pertaining to that course. The applicant also provided a statement from the director of True Nails Mr Phu Thien Nguyen. In the statement Mr Nguyen states that the applicant worked for him between 2012 and 2015. The statement indicates that the applicant ceased work in February 2015 because he found another job. The applicant returned to work for the business in February 2016 on a full time basis after the grant of a Subclass 457 visa.

13. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his visa application and the applicant had also provided a bogus document in support of the visa application. The delegate noted that they reasonably suspected that the bogus document was obtained as a consequence of a false or misleading statement whether or not made knowingly. The delegate went on to consider the relevant factors as to whether or not the visa should be cancelled and concluded in a decision made on 15 September 2017 that the visa applicant’s visa should be cancelled.

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

    PRE-HEARING SUBMISSION

15. The Tribunal received a prehearing submission from the applicant’s representative dated 7 February 2019.  Attached to this admission was a statutory declaration from the applicant, a statutory declaration from the applicant’s nominating employer, a number of certifications pertaining to the applicant’s work history in Vietnam and a screen snapshot from Boss Palace’s website.

16. The applicant’s representative submitted that the grounds for cancellation for the provision of incorrect information and the provision of a bogus document by the applicant did not exist for the following reasons:

    ‘We submit that the applicant’s qualifications, as well as relevant experience, are not based on incorrect or misleading information. The applicant instructs that he has not provided to the Department any information or documentation that has been false, misleading or bogus.

    … We have attached with these submissions a translated copy of an Application for Certification that the applicant had made in order to obtain information relating to Hau Giang’s inception and commencement of operations in Vietnam

    We note that affixed to this application for certification was a confirmation signed and sealed by Mr Hau Canh Tran, who is the Vice Chairman of the People’s Committee of the relevant district that Hau Giang was headquartered in-that Hau Giang has been in operation from March 2011 to June 2011, being the relevant dates that the applicant had claimed to have worked at Hau Giang.

    We understand that, as stated in the Department’s decision, the Department had contacted an offshore post to determine the genuineness and legitimacy of the application for certification. The offshore post had advised the Department, however, that the People’s Committee have no legitimate authority to make such confirmations.

    However, we note that the applicant has subsequently contacted the Department of Planning and Investment of Ho Chi Minh City-being the business registration office-to make the same enquiry. The Department of Planning and Investment returned to the Department advising that the applicant would have to contact the People’s Committee of the district where Hau Giang is headquartered for this information. As noted above, we are still in the process of translating this document, and it will be provided to the Tribunal subsequently to these submissions.(The document has been subsequently provided).

    We submit, therefore, that if the Department of Planning and Investment of Ho Chi Minh City has directed the Applicant to contact the People’s Committee, then the application for Certification with the People’s Committee Confirmation ought to be relied upon to determine the period of Hau Giang’s operation-contrary to the unverified advice of the offshore post referred to in the Department’s decision record. We submit that, although the offshore post does operate in Vietnam, it is nonetheless a post of the Australian government, and its evidence and advice ought be given less weight than the official advice of the Business Registration Office.

    The People’s Committee of the relevant district has identified Hau Giang as in operation between March and June 2011, and the Business Registration Office has deemed the People’s committee to be the authority on business registration information. As such, we respectfully submit that this information ought to be given considerable weight in the Presiding Members consideration.

17. The submission goes on to note that a similar certification was obtained in relation to Boss Palaces operations and that the Chairman of the People’s Committee of the relevant district that Boss Palace operated in, confirmed that Boss Palace was in operation from June 2011 to May 2012.

18. The submission notes that with regard to the applicant’s employment in Australia both the applicant and his employer Mr Nguyen had provided signed statutory declarations pertaining to the applicant’s employment history with True Nails. The submission notes that the applicant worked for the nominating business on a part-time basis between 2012 and February 2015.  Mr Nguyen further advised that when he was contacted by telephone by the Department and asked questions about the applicant’s employment history he was taken by surprise as he was at work in his café business, and that as he was managing 3 businesses at the time he was not thinking clearly before he answered the questions of the Department. The submission states that the Tribunal should give greater weight to the statutory declarations provided by the applicant and Mr Nguyen over their answers provided in interviews with the Department.

19. The submission notes that the recognition of the applicant’s educational qualifications was dependent on a finding that the applicant had been employed by True Nails. The submission notes that the applicant did in fact work for True Nails during the relevant period for over 3 years and that his qualifications were not obtained because of false or misleading statements but were in fact based on a relevant consideration of the applicants work experience as a Massage Therapist in the massage industry. The submission states that the evidence before the Tribunal was such that the Tribunal could make a finding that the grounds for cancellation under s.101 and s.103 of the Migration Act did not exist.

    REVIEW HEARING

20. The Tribunal conducted a hearing on 14 February 2019. The applicant attended the hearing as did his representative, his wife, and the owner of True Nails Mr Phu Thien Nguyen.

21. The Tribunal made reference to the issues in review, the merits review process and the prospective outcomes of the review.

22. The applicant provided his personal details. The applicant advised that he was granted a Subclass 457 visa on 29 June 2016 valid until 29 June 2020. The applicant advised the Tribunal that he arrived in Australia in June 2012 as the holder of a Student visa. The applicant stated that as the holder of a Student visa he undertook a number of English-language courses in Sydney followed by a Diploma of Marketing at Curtin University. The applicant advised that he did not complete the marketing course because the fees were too expensive and he had to withdraw from the course. The applicant then enrolled in an information technology course at Kent Institute in Sydney where he completed a number of certificates but did not complete a diploma.

23. The Tribunal asked the applicant when he obtained a job at True Nails. The applicant advised that he commenced working at True Nails soon after his arrival in Australia in June 2012. The applicant was asked to describe the physical characteristics of the business. The applicant advised that there was a reception desk, a number of spa chairs and a number of tables for manicure’s and pedicures and further down the business premises were 3 rooms used for massage.  The Tribunal showed the applicant a photograph of the business obtained from the Internet. The Tribunal noted that a sign on the shop window referred to the business offering nails and waxing and manicure’s but that the list of services did not say anything about massage. The applicant stated that from 2012 until February 2016 that massage was not advertised at the front door of the shop. The Tribunal asked the applicant how customers would know that the business offered massage services in the absence of this advertising. The applicant stated that regular customers knew about massage services and that he was employed to assist the business owner in doing massages. The applicant stated that between 2012 and 2016 he worked as a casual on-call. The Tribunal asked the applicant how many massages the business would conduct each week prior to advertising on the front door of the premises and he advised 5 to 10 per week and that after advertising it increased to 20 to 30 per week.

24. The Tribunal asked the applicant when he finished high school in Vietnam and he advised in 2011. The Tribunal asked the applicant what he did after high school and he advised that he worked in massage. The Tribunal asked the applicant whether he obtained qualifications before he commenced working in massage and he advised that he did not. The Tribunal noted that in Australia people needed qualifications to undertake massage but this appeared to not be the case in Vietnam. The applicant stated that when he first got a job in massage he learnt on the job. The Tribunal asked the applicant about his massage therapy employment in Vietnam prior to coming to Australia. The applicant stated that between June 2011 and May 2012 he worked for 4 months as a massage therapist at Boss Palace. The applicant stated that he also worked for 3 months at a business in Ho Chi Minh City called Hau Giang.  The applicant advised that he worked in this business between March and June 2011.

25. The Tribunal asked the applicant whether he was currently working and he advised that he did not have work rights on his Bridging visa. The Tribunal asked the applicant how he was surviving in Australia and he advised that he had an older brother in Australia who was a permanent resident and was providing support to him and that he was also relying on savings. The Tribunal asked the applicant about his wife and he advised that she also held a Bridging visa and that they met in Australia as his wife was an overseas student studying in this country.

26. The Tribunal asked the applicant whether he believed his study history in Australia had been successful. The Tribunal noted that it appeared that the applicant had only completed English-language studies and one certificate in marketing. The applicant stated that since he had arrived in Australia he had learnt a lot. The applicant also stated that as a consequence of his experience in massage therapy in Vietnam and Australia and him undertaking testing that he was given certificates in massage based on his experience from Australia Massage and Beauty Institute.

27. The Tribunal took evidence from Mr Phu Thien Nguyen the owner of True Nails Pty Ltd.  The witness advised that he had owned the business since 2012. The Tribunal asked the witness to describe the physical characteristics of the business. He advised that it was a glass fronted shopfront and that inside the business there was a reception desk, tables for manicure’s and pedicures along with 6 spa chairs there were also 3 rooms for massage. The Tribunal showed the witness a photograph of the business that it had obtained from the Internet. The Tribunal noted that a sign at the front of the business made reference to waxing and nail services but nothing about massage. The witness advised that the photograph was an old photograph dating back to 2012, he advised that the shopfront had been renovated and there were now no signs apart from the name of the business and that inside the shop there was a brochure pertaining to services available which makes reference to massage services. The Tribunal asked the witness how many massages pre-advertising were conducted each week and he advised between 10 and 15 and that since advertising they had increased to between 30 and 40 per week. The Tribunal asked the witness how many hours a week the applicant worked for the business prior to the cancellation of his visa and he advised 38 hours per week. The Tribunal asked for a description of the applicant’s duties and he advised that he was involved in massage, accepting bookings and taking payments. The witness stated that the applicant prior to the grant of the Subclass 457 visa worked for the business on a casual basis and only worked full-time for the business after the obtainment of the Subclass 457 visa.

1. The Tribunal took evidence from the applicant’s wife Ms Thi Than Hoa Truong.  The witness advised that she first came to Australia in late December 2012 on a student visa. She advised that she had studied English language and business management courses which she had successfully completed and that she had plans to study a Bachelor of Management. The witness advised that if she was not able to remain in Australia and had to return to Vietnam that her education objectives would not have been reached that she wished to complete a bachelor degree in Australia.

2. The Tribunal asked the witness to recount her husband’s work history in Australia. She advised that since she met her husband he had been studying and working. She advised that he completed English language studies and that he had worked in a massage shop. He had also worked part-time at Coles. She advised that he had obtained recognition of his experience in massage in Vietnam and Australia since he had been in Australia. He then applied for a Subclass 457 visa to work as a Massage Therapist.

3. The applicant was asked whether there was any further evidence he wished to provide and the applicant advised there was not.

4. The Tribunal deferred to the applicant’s representative and asked whether there are any submissions that he wished to make. The representative advised that the applicant obtained a position at True Nails after seeing an advertisement in the newspaper. He had a trial in the business and the owner of the business was happy with the applicant’s skills and experience. The representative stated that the applicant ceased working for the business in 2015 at which time he obtained some part-time work at Coles. The representative stated that the applicant returned to work in the business on a full-time basis after the grant of a Subclass 457 visa. The hearing concluded.

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 s.101 and s.103 of the Migration Act in the following respects: The Departmental delegate noted that the applicant was nominated to work as a Massage Therapist by his sponsoring business True Nails. In support of the application the applicant provided a written statement from the Director of True Nails Mr Phu Thien Ngyuen. In this statement Mr Nguyen certified that the business was established in April 2012 and at the time of the statement in March 2016 the business employed two part-time Massage Therapists because the previous Massage Therapist resigned in February 2016.

10. The submission also notes that Massage Therapists had always been employed by the business but that Mr Nguyen himself had been the main person providing massage services to customers in the business since the commencement of the business. Mr Nguyen further noted that because of his new business venture a café/restaurant he could no longer dedicate time to continue as a Massage Therapist in the business and that it was necessary to employ a full-time Massage Therapist. The submission noted that the applicant had worked on a part-time basis with the business since 2012 and held relevant qualifications to work in remedial massage.  A range of documents corroborative of this were provided to the Tribunal at review.

11. The delegate noted that the applicant provided a Diploma of Remedial Massage issued to him by the Australian Massage and Beauty Institute.  The applicant provided his employment history as a Massage Therapist from 2011 to the time of the lodgement of his Subclass 457 application in 2016. The delegate checks were made relating to the applicant’s claimed employment in Vietnam and his employment in Australia and pertaining to his Australian educational qualifications. The checks in Vietnam suggested that the applicant had not worked for the 2 businesses as a Massage Therapist as claimed. The checks in Australia suggested that the applicant did not work for True Nails from May 2012 to February 2015 as claimed and a check of the applicant’s educational qualifications indicated that the qualifications were issued to the applicant based on experience as well as him undertaking a theoretical and practical examination.  The delegate determined that the applicant did not have the required minimum 3 years of experience working in the massage industry because of conflicting evidence about his employment in Australia and in Vietnam.

12. The evidence before the Tribunal indicates that the applicants qualifications issued to him in Australia were based on a number of factors including a theoretical and practical examination as well as an attestation by the applicant to him having 3 years of experience working in the massage industry.  Evidence on the Departmental file indicates that the applicant completed theory and practical exams on 21 March 2016 and that based on his completion of these exams along with evidence of his experience as a Massage Therapist he was issued with a Certificate IV in Massage Therapy Practice as well as a Diploma of Remedial Massage. 

13. On 30 March 2016 True Nails Pty Ltd provided a submission to the Department in support of the nomination application to enable them to sponsor the applicant to work as a Massage Therapist in the business. This submission addressed the genuine need for a position in the business and that the position fits within the scope and scale of the business. The evidence before the Tribunal indicates that the nomination application by True Nails was approved and that part of this approval was a determination that there was a genuine need for the position of Massage Therapist in the business.

14. As has been noted the Department obtained the services of the overseas post in September/October 2016 to verify the applicant’s claimed work experience as a Massage Therapist in Vietnam. The post was not able to confirm the applicant’s employment with Hau Giang because the business was no longer in operation however the overseas post determined that local tax records indicated that the business was in operation from June 2015 onwards. Conversely the overseas post was not able to confirm the applicant’s employment with Boss Palace as that business had changed hands and did not keep records however local tax records indicated the business was only in operation from September 2011 onwards making the applicant’s claimed period of employment impossible.

15. To counter these findings of the overseas post the applicant as noted sought certification from the Chairman of the People’s Committee of the relevant district that the two Vietnamese businesses operated in and they were able to confirm that the respective businesses did in fact operate during the period in which the applicant claims to have been employed by them. The applicant’s representative notes that both these businesses had engaged in questionable business practices such as tax avoidance which required them withholding the registration of their businesses with the relevant authorities in Vietnam. However to counter this, the businesses at the very minimum, had to register their address and operations with the relevant People’s Committee in Vietnam who in turn had confirmed the operation of these businesses. The applicant’s representative submitted that the Tribunal must apportion appropriate weight to this evidence to counter that collated by the overseas post.

16. The applicant’s representative provided signed statutory declarations from the applicant and the applicant’s nominating employer pertaining to the applicant’s employment by his business True Nails. At the review hearing both the applicant and his employer gave an account corroborative of the information provided in the statutory declarations and an account of their respective interviews with the Department.  Mr Nguyen advised that he was called by the Department whilst he was working in his café and it was a difficult time to speak with the delegate

17. The Tribunal has considered the evidence before it and finds that the applicant did not provide incorrect information to the Department nor did he provide a bogus document obtained because of a false or misleading statement. The Tribunal finds that the weight of the evidence at review indicates that the applicant did work for Hau Giang and Boss Palace during the period he claimed to work for them in Vietnam as a Massage Therapist and that he did work on a part-time/casual basis for True Nails between 2012 and 2015.  It follows that the information pertaining to his experience that the applicant provided to Australia Massage and Beauty Institute and the testing undertaken by this Institute was sufficient to demonstrate that the applicant had the skills to be awarded qualifications in massage therapy in Australia.

18. Conclusion on non-compliance

19. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

21. The Tribunal has no jurisdiction with respect to the other applicant.

    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.

    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.