Patel (Migration)

Patel (Migration) [2024] AATA 2797 (10 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dhavalkumar Natubhai Patel
REPRESENTATIVE:  Mr Ireneusz Lasocki (MARN: 0102034)
CASE NUMBER:  2215068
HOME AFFAIRS REFERENCE(S):          BCC2022/18262
MEMBER:Rachel Westaway
DATE:10 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 10 July 2024 at 5:15pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – undeclared previous visa refusals to other countries – course was cancellation – family pressure – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 359, 375A
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that that the applicant did not comply with section 101(b) of the Migration Act 1958 (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.
The applicant appeared before the Tribunal on 5 September 2023 at 2:00pm to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Background
The applicant is a 27-year-old male from India.
The applicant was granted a TU-500 visa on 16 January 2021.
Tribunal Application
The applicant lodged their application for review on 13 October 2022 and provided the Notification Letter and Decision Record from the Department of Home Affairs, as well as their Indian passport.
Department of Home Affairs Application
On 13 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.
On 24 July 2022 the applicant responded to the NOICC with a statement made via email. In the email he stated:
·     He is sincerely remorseful and apologetic regarding his provision of incorrect information.
·     He states his reasons for the non-compliance was to obtain a student visa for the purpose of being able to undertake studies overseas, in a country which tertiary education system is of a recognised high international standard, and in the English language, as being proficient in English is important in his home country, India. He also states one of the reasons he did not want to undertake studies in India was the pressure from political activist groups in universities in India, which he experienced during the study of his undergraduate in India.
·     His family has a jewellery business and his plan is to use his qualification and skills gained from the overseas education to get involved in the family business and contribute to the development and success of the business.
The applicant explained the circumstances that led to the occurrence of his non-compliance:
·     He first applied for a student visa with the US in November 2015 and was refused the visa. He states he met the university admission criteria and found the reasons for the visa refusal by the US authorities were limited and unconvincing to him.
·     He re-applied for a US student visa on two subsequent occasions and truthfully disclosed his previous visa refusals however these applications were also refused.
·     He then decided to apply to another country and decided that would be Canada based on experience from his friends.
·     For the visa application with Canada, he was guided by an agent in India. He initially declared his US visa refusals however his agent advised him to provide the details of his last visa refusal only. He claims the reasons for all three refusals are the same, the US authorities were not convinced he was a genuine student, he did not think there would be a problem if he mentioned only one refusal rather than all three. He claims he was very young at the time, he simply followed and relied on the advice of the agent. His Canadian visa application was refused for the reasons that he did not declare the other two US visa refusals.
·     He subsequently applied for a Canadian visa application for the second time. In this application, he expressed his remorsefulness for the failure of disclosing the other two US visa refusals and it was not his intention to withhold the information on the other two US visa refusals. His second Canadian visa application was refused again.
·     He was desperate and having failed to get to study overseas he decided to undertake an undergraduate degree in India.
·     When he finished his Bachelor of Business Administration in India, his desire to study overseas remained and he decided to apply to the US authorities a further five times. In each of these applications, he fully declared his previous visa refusals. He was refused on each of these five occasions. He felt ‘devastated’ because of these refusals.
·     Subsequently, he decided, with the guidance from a local Indian agent, to apply for a Master degree in Australia in data analytics. He states he was desperately attempting to obtain a student visa to study overseas, he followed the advice from the agent and intentionally did not disclose his previous student visa refusals with the US and Canada. He claims he was still immature at the time to understand the consequences of his non-compliance and was desperate to secure a visa to study overseas. He was concerned that his visa application with Australia would be refused if he disclosed the previous visa refusals by the US and Canada.
·     To ensure consistency with his student visa application, he provided incorrect information in his Incoming Passenger Card dated 27 December 2021 and during the interview at the Melbourne Airport on 27 December 2021.
·     He started his studies in Melbourne, at Deakin University. He later felt lonely and decided to move to Adelaide and transfer his studies to Adelaide.
·     Apart from providing incorrect information in relation to his visa application, he has not committed any illegal act.
·     He has good character and has become a member of his ethnic community and of the community in general and the provision of incorrect information does not reflect his true nature.
·     His further studies will benefit his future life and career. He requests his visa not to be cancelled so that he can continue his studies. He states the visa cancellation would have major negative impact on him and his family.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with 101(b) of the Migration Act 1958 in the following respects:
The applicant provided incorrect information in his application for a student visa lodged on 13 January 2021 in Part B of this document, by failing to declare he had visa applications refused by the US and Canadian authorities.
In the Student visa application, on page twelve, in the ‘Visa history’ section, the applicant answered ‘No’ to the question ‘Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?’.
The Department had information that indicated that the applicant has had visa applications refused by the US authorities.
Based on the information, the Department found that the applicant had provided incorrect information in his application for the student visa in the following instances:
· By answering ‘No’ to the question ‘Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?’, the applicant provided incorrect information because he lodged student visa applications with the US authorities on eight occasions and with the Canadian authorities on two occasions and on each occasion his visa application was refused by the relevant authorities.
· By answering ‘Yes’ to the ‘Declarations’ section of the student visa application form the applicant agreed to provide complete, correct and up-to-date information in his visa application. His response to the NOICC confirms that he provided incorrect information in his student visa application lodged 13 January 2021.
S375A Certificate and s 359a letter
On 5 September 2023 the Tribunal notified the applicant abut a certificate contained on the Department file which the Tribunal found valid and provided the applicant with an opportunity to respond. The letter outlined the adverse information and put this to the applicant to comment on. The protected information would disclose or enable a person to ascertain the existence or identity of, a confidential source of information. It would also disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The applicant did not respond specifically to the letter but the information was acknowledged in his submissions and oral evidence.
Oral evidence at Hearing
The applicant attended the AAT hearing and explained that he is sad an apologetic and it was the biggest mistake by not taking the law seriously. He explained that after he completed school he applied three times in the US for a visa and every time he was rejected and he tried to apply for a Canadian visa twice wand was never successful and was unable to understand why. He said that he told his migration agent but he stated that declaring these refusals was not required. He finished his bachelor’s degree in India in 2018 and wanted a Masters in the US and was again refused. He took the advice of friend and everyone else and said that Australia was one of the best countries and he applied but he was afraid to give the information about his US and Canadian visa refusals because he might be rejected and he thought his agent was knowledgeable. He confirmed that he never declared any refusals. He was desperate for himself and for his family. He said that his parents own a jewellery business and he need a degree and education. His father lacked a formal education and doesn’t hold a degree and he wanted his son to complete a Masters degree overseas. He stated that his cousins are educated and his sister and they wanted him to also have the experience of an overseas education so that he could take his father’s business to another level. He confirmed that he is in his 20s and he has a girlfriend in Australia.
The applicant explained that his girlfriend has been in Australia for 9 years and they knew each other since year 11 but there is a caste issue preventing them from formalising their relationship however he has met her brothers who advised him to just wait. He told his parents and she came on a student visa to study a Masters as well. He said the current situation is hard for both of them and their parents. He stated that she has high blood pressure since last year and they are trying to remain positive and she has 1-1.5 years to go to complete her Masters. He said that they live together and that her family want their daughter to have a partner that has a good education and status and be proud.
The applicant arrived in Australia in 2021 to study a Masters of Business and Analytics at the Deakin University. He claims he started his first semester and passed with a grade C. Information provided to the Deoartment which the applicant provided the Tribunal with stated that he felt lonely and decided to move to Adelaide and transfer his course.
The applicant provided a copy of the delegate’s decision which outlined that he arrived in Australia on 27 December 2021 on a Student (subclass 500) visa and has remained onshore and PRISMS indicates he started his Master of Business Analytics with Deakin University in Melbourne on 1 March 2022 and his enrolment for this course was cancelled on 30 August 2022 due to non-payment of fees. At the time of the cancellation he was enrolled in Master of Business Analytics with Kaplan Business School in Adelaide, which commenced on 9 September 2022.
The applicant told the Tribunal that he is working full time and was working at a fuel station since December and in a bakery since January and that he has an option for an internship.
The Tribunal asked the applicant why he could not study online but he explained that the course online is not as good because he wants to make friends, improve his language and learn about professional behaviour.
He claims the situation for him and his parents and girlfriend is devastating. He stated that the gold market is huge and he can take on his father’s business and maximise this opportunity and reach more customers but needs software and to analyse data. He doesn’t have that or the skill set yet to optimise this.
The Tribunal discussed the possibility of a ban on the applicant in applying for another visa and whether he could reapply later. He stated he is 27 and it will be hard to convince his girlfriend’s parents to accept this.
The Tribunal asked the applicant about his connections to the Australian community and he stated he is not connected with any association.
He respects the Australian people. He explained that when he worked for Uber Eats he saw the respect people gave him and so he tried to help others.
He confirmed his girlfriend is 25 years old and he has two siblings who are 21 and 22 and are married.
The applicant confirmed he has completed a Bachelor’s degree in Administration in India from LJ Institute of Business Administration which he claims provided him with basic knowledge.
He explained that there was a large political rally in 2015/16 in India which gave equal cast rights and organisers wanted him to join this movement and build momentum but he doesn’t want to because he believes it would affect his career and cause him problems. He stated that to undertake an MBA in India is highly competitive.
He confirmed that he has not breached any other conditions on his visa.
The applicant surmised that his GRE score could be the reason he was refused pervious visa applications however this was related to other studies and he felt it was not relevant to this particular course of study which the visa was granted for.
He asked the Tribunal to appreciate his keenness to obtain practical experience in Australia and he explained that face to face learning is important for him and provides him with opportunities for professional placements. He stated that his current employment adds to his professional understanding and is not wasted.
The applicant concluded by saying he is very sorry and he should have respected the law and he will never break it again and has no criminal background and that he must do better than his wife and is truthful.
He said he used a registered solicitor and agent in India used.
The Tribunal have the applicant until 19 September 2023 to provide any further material to be considered.
Post Hearing Submissions
On 19 September 2023 the applicant provided the following material to the Tribunal for consideration:
A submission outlining that the applicant had always showed remorse and been honest in his response to the NOICC. He has been fully rehabilitated and the experience has been severe. He was completely desperate and this is why he did not provide the correct information and that one of the refusals was because his application was incomplete. He was ill advised by his former agent and he was young when he made the error. He provided a recommendation from his undergraduate university professor. Cancellati8on will end his plans to continue studying in Australia and he completed one subject in his first semester. He prefers face to face and he has been unable to continue studying as he has lost his study rights. He will incur considerable financial loss as he has made a full payment of his fees and he is unable to receive a refund and this will be a burden to his family as well especially for an Indian family and a disappointment. A decision to cancel could affect his mother’s health in a catastrophic way given her health conditions. He has a partner in Australia and have long term plans together and these would be ruined. There are no further offences.
The following attachments were sent to the Tribunal. A letter from Professor Smit Shah attesting to the applicant’s commitment to his studies and co-curricular activities and his general disposition and growth as a student. He provided a recommendation dated 10 October 2020 for studies at another institution and claims to have known the applicant for three years. A statement of results from Kaplan for 2022 indicating the applicant received a grade of 70 for DATA4000 Introduction to Business Analytics. A financial statement dated 13 September 2023 for the applicant’s Master of Business Analytics for Kaplan indicating the applicant has paid $12,324 in fees and nothing is outstanding.
The applicant was honest in his discussions with the Tribunal and his submissions and confirmed that he had not declared his previous visa refusals in his application for a student visa lodged on 13 January 2021 in Part B by failing to declare he had visa applications refused by the US and Canadian authorities.
For these reasons, the Tribunal finds that there was non-compliance with s 109(1) by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
the correct information
The applicant should have declared his previous visa refusals by the US and Canadian authorities in Part B of his vias application.

The omission of this information is significant and would have been relied upon by the delegate in making a decision whether to grant the visa. The Tribunal places significant weight on the applicants omission and what the correct information should have been and gives this consideration significant weight in favour of cancelling the visa.
the content of the genuine document (if any)
The applicant applied for a student visa with the US in November 2015 and was refused the visa. He re-applied for a US student visa on two subsequent occasions and disclosed his previous visa refusals however these applications were also refused. He then appled to Canada and claims to have declared his US visa refusals however his agent advised him to provide the details of his last visa refusal only. This application was also refused so he applied for a second time which was also refused.
He then decided to apply to the US a further five times declaring his previous visa refusals. These applications were also refused.
The content of the genuine document is the refusals listed above which the applicant did not declare. The content of the genuine document was important to the issuing of the visa under review. The Tribunal gives this consideration significant weight in favour of cancelling the visa.
whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal notes that an applicant’s previous immigration history is important in assessing whether the applicant meets the criteria for the visa application. Consideration is given to whether the applicant has previously studied, their adherence to previous visa conditions and an assessment to whether they are a genuine student and whether they meet public interest criteria amongst other things.
The applicant’s immigration history was not provided by him and therefore not known when the assessment for his current student visa was made. Had the delegate been aware of this, namely that incorrect answers were provided the granting of the visa may not have occurred and as such the Tribunal gives this factor significant weight in favour of cancelling the visa.
the circumstances in which the non-compliance occurred
The applicant has stated that he accepts that he did not outline his previous visa refuslas. He stated in his submissions to the Tribunal that he was not initially aware of the need to disclose this information at the time and he was uncertain why he was refused and felt it was unfair. He also stated that his immigration advisor told him it was not necessary and he felt that he was under pressure to obtain an education overseas.
The Tribunal finds that it is more likely that the applicant would have been aware of the need to disclose his previous immigration history and elected not to do this to avoid any possible negative outcomes for the application for the student visa currently under review.
The Tribunal has considered the circumstances in which the non-compliance has occurred and finds that the applicant would have been aware that previous immigration history was required to be disclosed and he did not. The Tribunal does not accept that the applicant would not have been aware of the need to disclose the refused visas.
The Tribunal finds that the circumstances in which the non-compliance occurred were not beyond the applicant’s control and were not extenuating. Whilst the Tribunal acknowledges the applicant’s family pressure and the pressure to succeed in order to be considered in a good light by his girlfriend’s family, this does not provide any reasonable explanation as to why he did not disclose his previous immigration history.
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
the present circumstances of the visa holder
The applicant has a bachelor’s degree from India and stated that he is living with his girlfriend in Australia and has been working. He claims that his work is assisting him in building experience however he would still like to undertake his Masters studies in Australia which would lead him to be more successful when he returns to India to work in his father’s business.
He claims that studying online would not be as beneficial and he would not have access to work placement which he would obtain in Australia through his course.
The Tribunal is cognisant of the applicant’s circumstances and accepts that he would have established connections in Australia now and that a visa cancellation would be a significant disappointment and would disrupt his studies and be a financial loss to both him and his family. The Tribunal has also taken into consideration the psychological and emotional stress of a visa cancellation. The Tribunal gives these factors some weight in favour of the applicant and not cancelling the visa.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant confirmed and apologised to the Tribunal that he provided incorrect information to the Department regarding his adverse immigration history. However, whilst the Tribunal appreciates that the applicant has acknowledged his actions, he did not declare these until the Department contacted him with the NOICC.
As the applicant did not declare the provision of incorrect information to the Department until he as contacted by them, he has failed to comply with his obligations and the Tribunal gives this consideration significant weight in favour of cancelling his visa.
any other instances of non-compliance by the visa holder known to the Minister
There is nothing before the Tribunal to indicate that the applicant has not complied with other conditions on his visa. As such the Tribunal gives this factor some weight in favour of not cancelling the visa.
the time that has elapsed since the non-compliance
The applicant lodged his student visa application on 13 January 2021 with incorrect information and the Department cancelled the visa on 10 October 2022 and the applicant subsequently sought review. The Tribunal notes that over three years have passed since the non-compliance. Whilst he Tribunal considers this a reasonably significant period of time and the applicant would have made friends in Australia and established ties, the visa was a temporary visa and the applicant has family and more significant ties to his country.
The Tribunal gives this factor a little weight in favour of not cancelling the visa.
any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant has stated in his submission that he has not breached any other conditions on his visa and there is no information before the Tribunal to suggest that there has been any breaches of the law since the non-compliance.
The Tribunal gives this consideration a little weight in favour of not cancelling the visa.
any contribution made by the holder to the community.
The applicant has not provided any information in his submission or to the Department addressing how he has contributed to the community whilst in Australia. The Tribunal acknowledges his economic contribution and possible ties to the Indian community in Australia and the establishment of friendships. The applicant has stated that he admires the Australian people and their respect for others and this has made him want to continue to work and contribute to the community.
The Tribunal gives this factor limited weight in favour of cancelling the visa.
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.
whether there would be consequential cancellations under s 140.
The are no consequential cancellations under section 140 of the Act and as such the Tribunal gives this factor no weight.
if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The applicant has stated that he does not have children and as such the Tribunal gives this factor no weight.
whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant is a citizen of India and has not raised any protection claims and as such the Tribunal has not considered Australia’s non-refoulement obligations under the Refugee Convention.
There is no information before the Tribunal to indicate that Australia has any other international obligations that may be impacted by cancellation of the applicant’s visa.
The Tribunal gives these considerations a little weight in favour of cancelling the visa.
whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
If the visa was to be cancelled, the visa holder would become an unlawful non-citizen and could be liable for detention under section 189, and removal under section 198 of the Act if he does not voluntarily depart Australia.
The Tribunal has considered the consequences of a cancellation and accepts that if the visa is cancelled section 48 of the Act would apply and the this would mean the applicant has limited options for applying for further visas in Australia and the applicant may also be affected by Public Interest Criterion, limiting the grant of a further visas for a specified period.
I give this consideration some weight against cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal is aware that the applicant has a girlfriend in Australia who is also studying. The Tribunal has heard that the applicant is from a different caste to his girlfriend and that the period of time they have spent in Australia living together has saved them from facing their families who may not be supportive of the relationship. The Tribunal accepts that the applicant would have freedoms and less family and societal constraints in Australia than he may face in India. It also accepts that the award of a Masters from and Australian University would be prestigious for him and disappointing if he can not proceed. Further the Tribunal recognises the significant financial investment for the applicant in coming to Australia to study and the loss of this opportunity inspite of the financial outlay. Whilst these are factors that the Tribunal acknowledges as hardships they do not outweigh the seriousness of the breach. The Tribunal gives them some weight in favour of not cancelling the visa.
CONCLUSSION
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 individually and cummulatively, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Rachel Westaway
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2024] AATA 2797

10 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction