Phan (Migration)

[2023] AATA 3018

Phan (Migration) [2023] AATA 3018 (12 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Hong Van Phan

REPRESENTATIVE:  Mr Linh Minh Tran (MARN: 0958538)

CASE NUMBER:  2301450

HOME AFFAIRS REFERENCE(S):          BCC2021/1963634

MEMBER:Kate Millar

DATE:12 September 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 12 September 2023 at 12:48pm

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – change in circumstance not notified prior to visa grant – child born not of the relationship – sponsor divorced the applicant – family reputation – genuine relationship – gambling debts – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 5(1), 48, 104, 105, 107, 109, 140, 197, 198, 359AA
Migration Regulations 1994, rr 2.12, 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mrs Phan is a citizen of Vietnam, who held a Partner (Permanent) (Subclass 100) visa until it was cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 31 January 2023.

2. Mrs Phan applied for a Subclass 309 and Subclass 100 visa on the basis of her relationship with her sponsor Mr Van Su Dang on 6 August 2014. Mrs Phan was granted a Subclass 309 visa on 1 August 2016 and arrived in Australia on 20 September 2016. Her Subclass 100 visa was granted on 5 February 2018.

3. In the period between the date of the visa application and being granted a Subclass 309 visa, Mrs Phan had a child that was not the child of Mr Dang. Her child was born 27 May 2016 and remained in the care of her parents when she came to Australia.

4. Mrs Phan did not notify the Department of the birth of her child, which is a change to her circumstances. The delegate cancelled Mrs Phan’s Subclass 100 visa on the basis that Mrs Phan did not notify of a change to her circumstances.

5. On 1 October 2021, Mrs Phan notified the Department that she had provided incorrect information and that she had a child born 27 May 2016. Mrs Phan and her sponsor Mr Dang obtained an order for divorce on 21 October 2021.

6. 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 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

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

8. Mrs Phan appeared before the Tribunal on 21 August 2023 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from her ex-husband Mr Dang, her niece Ms Thi Thuy Le and her mother Ms Thi Hong Nga. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

9. 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

10. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 104 of the Act. Section 104 of the Act requires non-citizens to notify the Department of any relevant changes in circumstances.

11. The exercise of the cancellation power under s 109 of the Act requires the Minister to issue 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.

12. 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?

13. The issues before the Tribunal are 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.

14. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 104 of the Act by Mrs Phan failing to notify of a change to her circumstances, in particular to notify of the birth of her child.

15. Mrs Phan acknowledges that she did not notify of the birth of her child, and concedes that she did not comply with s 104 of the Act and a ground to cancel her visa exists.

16. The Tribunal finds that there was non-compliance with s 104 of the Act by Mrs Phan in the way described in the s 107 notice.

    Should the visa be cancelled?

17. As the Tribunal has decided that there was non-compliance in the way described in the notice issued 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).

18. 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.

19. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are 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 Procedures 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.

20. The Tribunal has considered each of the prescribed circumstances, factors specified in the policy and any other relevant matters.

    A. Prescribed circumstances

    The correct information

21. The correct information is that Mrs Phan’s circumstances changed when she gave birth to her son, Hoang Trung Hieu Phan, who was born on 27 May 2016.

    The content of the genuine document (if any)

22. The contents of documents are not in issue in this matter.

    The circumstances in which the non-compliance occurred

23. Mrs Phan stated that her child was conceived after she went out with a group of friends, and everyone was very drunk. She went home with an old school friend and became pregnant. She states she did not tell her husband because she felt guilty and afraid of ruining their relationship. She knew he would be upset, and this would lead to their marriage breaking up. She continued to contact her husband and kept the relationship going despite him not knowing she was pregnant. She states her intention was to be with her husband, live with him while the visa was finalised and “sort out the whole situation before finally telling him the truth”.

24. In a statutory declaration dated 2 August 2023, Mrs Phan states her decision to withhold the information that she was pregnant was not to obtain the visa but because of her love for Mr Dang and her fear of hurting him. She feared her family’s reputation would suffer and stress would harm their physical and mental health if the people from her hometown found out she was pregnant from an affair. She worried that if Mr Dang’s family found out their marriage would be at risk.

25. In a translated statement dated 22 November 2022, Mrs Phan’s parents Mr Phan Hong Son and Ms Le Thi Hong Nga state their daughter accidentally became pregnant with a friend from the same neighbourhood. They decided not to tell Mr Dang because when he was angry, Mr Dang would swear at his wife and her family. They also thought Mr Dang would tell his family in Vietnam, and they did not know what Mr Dang’s family would do to their family. Mrs Phan’s parents also said they were afraid it would affect the foetus, and they did not want neighbours to disparage their daughter for being pregnant.

26. Mrs Phan’s application for a Subclass 309 visa was initially refused because a delegate of the Minister was not satisfied that Mrs Phan and Mr Dang were in a genuine relationship, and Mr Dang applied to this Tribunal (differently constituted) for a review of this decision.

27. Mrs Phan acknowledged at the hearing of this matter that she had previously appeared before the Tribunal by telephone to give evidence about the relationship. She did not disclose that she was pregnant at the hearing held on 11 January 2016, when she was approximately five months’ pregnant. She said she did not tell the Tribunal she was expecting a child, and the evidence she provided that she wanted to have a family with Mr Dang, which may have been accurate, was somewhat misleading as she was pregnant at the time.

28. The Tribunal remitted the matter for reconsideration, finding that Mrs Phan and Mr Dang were in a genuine relationship.

29. After the visa was granted, Mrs Phan said she had to wait for her baby to be born before travelling to Australia when he was four months old.

30. Mrs Phan did not tell the Department she had a child when she provided further information for her permanent visa. She said she did not provide this information because she is not familiar with the system so thought she would wait until she had settled down in Australia.

31. Mrs Phan initially gave oral evidence that in 2018 she revealed to Mr Dang that she had a child. She states Mr Dang was devastated and they spent time apart while he contemplated his decision. After a few weeks he seemed to have sympathy for her and forgive her. She said Mr Dang agreed to meet her son in Vietnam and eventually care for him as their own.

32. Mrs Phan changed this evidence after the Tribunal heard from Mr Dang, who said Mrs Phan told him about her son in 2020. Mrs Phan then said she now recalled it was 2020 when she told him about her son. This is significant as her permanent visa was granted 5 February 2018.

33. That Mrs Phan had a child with another person after her marriage to Mr Dang was relevant to the assessment of her visa application. It is information the Minister and the Tribunal were denied in assessing her visa application, and whether Mrs Phan and Mr Dang were in a genuine spouse relationship.

34. The Tribunal accepts that Mrs Phan did not want to advise the Department or tell Mr Dang she was pregnant because she was concerned about the effect on their relationship. While it may not have been the sole reason for failing to disclose the birth of her child, the Tribunal also considers she was aware of the effect of this information on the potential grant of her visa given her visa was refused because the delegate was not satisfied they were in a genuine spouse relationship.

35. In her response to the s 107 notice, Mrs Phan provided a statement from Pham Hong Choung that he has seen Mrs Phan and Mr Dang at parties in the period 2018–2020 and can confirm they were happy at that time.

36. Given the relevance of Mrs Phan’s pregnancy and the birth of her child to the assessment of her eligibility for the visa, and her failure to disclose her pregnancy before the Tribunal or the birth of her child in the assessment of her permanent visa this weighs significantly in favour of cancelling her visa.

    The present circumstances of the visa holder

37. Mrs Phan states that from the beginning of 2020 she and Mr Dang were arguing as a result of financial difficulties caused by his gambling. She states this led to substantial debt, and he expected her to have responsibility for his debt. She states she covered for him with his gambling, and he expected her to keep working hard to pay his debts. She could not provide documentary evidence of any debts that resulted from her husband’s gambling. She does not have any current debts as a result of his gambling.

38. Mrs Phan said that after a heated argument he walked out and has not shown any interest in being involved with her again. Mrs Phan and her aunt could not locate him but after a year, in July 2021, Mr Dang approached her for a divorce. Despite her reluctance she agreed and signed the divorce papers. An order for divorce was made 21 October 2021 with effect from 22 November 2021.

39. After the visa cancellation she states she tried to contact Mr Dang but he has not responded to her messages. She visited his residence with her aunt to implore him to help with the visa cancellation, but he refused. However, on the morning of the hearing she said she contacted him again and he is now willing to help.

40. Mrs Phan and her aunt said that the marriage ended because of Mr Dang’s gambling, and this should be in her favour when considering the cancellation of the visa.  

41. Mr Dang told the Tribunal that they separated because he spent all of the money he earned on himself. He felt this was wrong and he was not able to help Mrs Phan. He said he had a gambling problem. He said if he had known she was pregnant he would still have sponsored her because he really loved her. He said he divorced Mrs Phan because he was spending money gambling.

42. Mrs Phan’s current circumstances are that she is living with her aunt and working as a kitchen hand. Her son lives with his grandparents in Vietnam. The breakdown of her marriage is stated to be caused by Mr Dang’s gambling, however she has no current debt.

43. This weighs marginally in favour of not cancelling her 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

44. Subdivision C of Division 3 of Part 2 of the Act contains obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.

45. Mrs Phan failed to tell the Tribunal she was pregnant at a hearing in January 2016. She failed to tell the Department of the birth of her child when the grant of her Subclass 100 visa was being considered. Mrs Phan continued to fail to notify of the birth of her child until she corrected the information to the Department on 1 October 2021.

46. Mrs Phan initially said that she did not tell her husband, the Tribunal or the Department that she was pregnant or had a child because she wanted to talk to her husband and settle in Australia. She then said she did tell her husband before she was granted a Subclass 100 visa. On being asked for more detail about when she told him, she said it was February or March 2018. This is the approximate time she was granted a Subclass 100 visa.

47. When he gave evidence, Mr Dang said that Mrs Phan told him she has a child in about 2020, just over a year before they separated. He said he was certain it was 2020 because they went out for a meal. He said that sponsoring her son for a visa was an option on the table for discussion in the past.

48. After hearing Mr Dang’s evidence, Mrs Phan said in retrospect she agreed she told Mr Dang about her son in 2020. On being asked why she waited so long to tell him, she said she wanted to have everything settled before she told him.

49. Mrs Phan’s aunt also gave oral evidence that Mrs Phan told Mr Dang about her child in 2020.

50. While Mrs Phan did herself notify the Department of the incorrect information, that she failed to do so before the grant of her visa, before the Tribunal and when her Subclass 100 visa was granted weighs significantly in favour of cancelling her visa.

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

51. Mrs Phan has failed to provide the information at subsequent opportunities, including at a previous Tribunal hearing and at the time the grant of the Subclass 100 visa was being considered.

    The time that has elapsed since the non-compliance

52. Mrs Phan’s child was born in May 2016, and it is over seven years since the non-compliance. Since her arrival in Australia she has settled to a degree in Australia although she retains highly significant ties to Vietnam as her parents and son live in Vietnam.

53. The Tribunal accords the period she has lived in Australia little weight in favour of not cancelling her visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

54. There is no information before the Tribunal to show any other breaches of the law, and this factor is neutral.

    Any contribution made by the visa holder to the community

55. Since obtaining work in Australia, Mrs Phan has worked as a kitchen hand for the same employer. She said her connections with Australia are her aunt, her friends and people at work. She is not involved in any other community organisations.

56. Mrs Phan provided with her response to the s 107 notice a statement from Mr Phan Hong Choung which states he wants to provide support for his friend as she is a good and honest person and he believes the events leading to her pregnancy were an accident and he does not believe her visa should be cancelled. Mr Choung states he has seen Mrs Phan and Mr Dang together as a couple in the period 2018–2020.

57. Mr Ngoc Liem Nguyen provides a statement that he would like to support Mrs Phan for her visa as she is good, friendly and honest. He states he has seen the stress the cancellation has caused her, and he believes she did not declare her child because she had a compelling reason. Mr Nguyen says he believes Mrs Phan had suffered enough in her life and should be given a chance to live peacefully in Australia.

58. Mr Choung and Mr Nguyen did not give oral evidence to the Tribunal. Their statements that Mrs Phan is an honest person are at odds with her failure to declare relevant information and are given little weight.

59. It is accepted that Mrs Phan has a connection with her aunt, her niece, her friends in Australia and her employer. This provides a contribution to the Australian community, and is acknowledged by slight weight being given to this factor in favour of not cancelling her visa.

    B. Other circumstances

    Whether there would be consequential cancellations under s 140

60. There is no other person who would have a visa cancelled under s 140 of the Act if Mrs Phan’s visa is cancelled. This factor is neutral.

    Whether Australia has a relevant international agreement that would or may be breached as a result of the visa cancellation

61. Article 9 of the Convention requires State parties to ensure that a child is not separated from his or her parents against their will, other than in particular circumstances, and Article 18 states parents or legal guardians have the primary responsibility for the upbringing and development of the child.

62. Mrs Phan’s child is not in Australia, and the cancellation of her visa will not separate Mrs Phan from her child against her child’s will. This factor is neutral.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations

63. If her visa is cancelled, Mrs Phan is liable to detention and to deportation. On being asked if there was any reason she could not return to Vietnam, Mrs Phan said she is settled here and doesn’t want to think about returning to Vietnam. She said she would not be able to cope with returning because she works here, her life is settled here, she has family members here and her life is going well.

64. There is no information before me to suggest her removal would result in a breach of Australia’s non-refoulement obligations.

65. Mrs Phan can test her eligibility for a protection visa if she contends that her removal from Australia will breach Australia’s non-refoulement obligations.[1]

    [1] COT15 v MIBP (No 1) [2015] FCAFC 190

66. If Mrs Phan is removed from Australia, she is a citizen of Vietnam and can return to Vietnam. Her child is currently living in Vietnam, and her removal will not result in separation from her child.

67. This factor is neutral.

    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

1. If Mrs Phan’s visa is cancelled, she will become an unlawful non-citizen unless she can apply for another visa. As her visa was cancelled, there are limited other visas for which she may apply (s 48 of the Act).

2. The types of visa for which Mrs Phan can apply within Australia include a protection visa (reg 2.12 of the Regulations).

3. If Mrs Phan does not apply for another visa and becomes an unlawful non-citizen, she is liable to be detained under s 198 of the Act and removed from Australia under s 197 of the Act.

4. If Mrs Phan applies for other visas from Vietnam, she will be subject to Public Interest Criterion 4013. This requires a period of three years to have passed since her visa was cancelled unless there are compelling or compassionate circumstances affecting an Australian citizen, Australian resident or eligible New Zealand citizen that justify the grant of the visa.

5. The legislative scheme shows these are consequences intended by the legislature if a visa is cancelled and are given only slight weight in favour of not cancelling her visa.

   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

6. Mrs Phan was asked if there was any reason she could not return to Vietnam and she said she has settled well in Australia and considers it her home. She said she cannot think of going back to Vietnam. She has work in Australia and family members here.

7. If she returns to Vietnam, Mrs Phan said she had elderly parents and will need to look after them. Her parents own a small piece of land and her mother works. She said her parents could not support her if she returns to Vietnam, as she sends them money from Australia.

8. Mrs Phan’s parents have applied for a contributory parent visa, and Mrs Phan was asked if they would have to pay money to obtain this visa. The Tribunal advised that information on this visa shows it has a cost of $48,365. Mrs Phan said her parents had the money to pay for this visa, and I do not accept her evidence that her parents would be unable to support her if she returns to Vietnam.

9. Her mother gave evidence that if she has to return to Vietnam Mrs Phan could live with them and that she could financially support her daughter.

10. Mrs Phan said she will not be able to get a job in Vietnam because her qualifications are not accepted there, and it is hard to find a job. On being asked her qualifications, Mrs Phan said she has a Diploma in IT which she obtained in Vietnam and said it would not be accepted in Vietnam because it was a general course in IT and she did not have any specialisation. It is more than 10 years since she obtained this qualification. It does not add to her credit that she said her qualification would not be accepted in Vietnam when it was obtained in Vietnam.

11. Since she has been in Australia Mrs Phan has worked as a kitchen hand. She can work, and the Tribunal finds she has the ability to obtain work in Vietnam and assist in supporting her family. While the cancellation of the visa will result in financial hardship to Mrs Phan and her family, she is able to seek work in Vietnam.

12. Mrs Phan’s connection with Australia is with her aunt, her niece and her workmates. Mrs Phan considers she has settled in Australia. While returning to Vietnam will cause some emotional hardship, she will also be reunited with her parents and her son.

13. The hardship incurred if the visa is cancelled has slight weight in favour of not cancelling her visa.

    Other matters

14. The nature and duration of the relationship between Mrs Phan and Mr Dang caused the Tribunal considerable concern in this matter.

15. Mrs Phan was initially certain she had told Mr Dang about her son before the grant of her permanent visa. She said that she planned to tell him after she had settled in Australia and was sure this was approximately one year after she arrived.

16. After Mr Dang gave evidence that he was certain she told him in 2020, which is considerably after her permanent visa was granted in February 2018, Mrs Phan said she now recalled she told Mr Dang about her son in 2020. This change to her evidence results in the Tribunal having little confidence in her oral evidence. It also supports that she sought a favourable migration outcome before advising Mr Dang of her child. While this does not of itself mean that the relationship was not genuine or that was the sole reason she withheld the information as she also claims she did not want the relationship to break down and her mother gave evidence that Mr Dang would yell if he became angry, the Tribunal finds this was one of the reasons she withheld this information.

17. Also of concern was whether and for how long Mrs Phan and Mr Dang lived together.

18. Mrs Phan applied for a contributory parent visa for her parents in May 2019. Mrs Phan was asked the address she provided for the purposes of this application. At the time she said she and Mr Dang were sharing a house with other people. She said perhaps at that time she used her aunt’s address to help with the process.

19. Information was provided to Mrs Phan under s 359AA of the Act that in Form 40 of her parents’ application for a Subclass 143 visa dated 3 May 2019 she gave as her address a Woodville North address that is her aunt’s residence. She was advised that if the Tribunal relied on this information, it would find she was living separately from her husband considerably earlier than 2020 and that she was not telling the truth about the end of the relationship. This would be the reason or part of the reason for affirming the decision to cancel her visa. Mrs Phan was advised she could comment on or respond to the information or seek more time to comment on or respond to the information.

20. Mrs Phan chose to respond to the information at the time and said she was with her husband until she separated from her husband and moved in with her aunt. On being asked if this was in 2019 at the time of her parents’ visa application or in 2020, she said her aunt advised her to use her address to facilitate the visa application, and the intention was that when her parents’ application was successful her parents would live with her aunt.

21. Other information provided to Mrs Phan under s 359AA of the Act was that Mrs Phan had given oral evidence that during her first trip to Vietnam her husband was in Australia when she left Australia and was in Australia when she returned. The Tribunal had information that her husband was out of Australia between 4 and 28 May 2017. Mrs Phan returned to Australia 21 May 2017, and if she did not notice that he was not in Australia when she returned, the Tribunal would have serious concerns that the relationship was genuine, or they lived together at that time. If I found the relationship was not genuine or they did not live together at that time this would be the reason or part of the reason for affirming the decision under review. Mrs Phan was advised she could comment on or respond to this information now or seek more time. Mrs Phan sought time to comment on or respond to the information, and the Tribunal provided an adjournment for Mrs Phan to confer with her representative.

22. After the adjournment, Mrs Phan said she had only now learned her husband was out of Australia. She said they had arguments now and then and her husband was out and about more than home with her. She was upset with him and did not contact him. When he returned home, she thought he must have stayed with friends. She said this happened quite often.

23. While the relationship was genuine at the time the visa was granted, I find that it deteriorated rapidly and there were periods in which Mrs Phan did not know the whereabouts of Mr Dang.

24. This is relevant to whether her visa should be cancelled as her spouse relationship with Mr Dang was the reason Mrs Phan was in Australia. Failing to provide information about her child undermined the ability of the Department to fully assess her visa application and was misleading before the Tribunal.

25. This weighs heavily in favour of cancelling her visa.

    CONCLUSION

26. Mrs Phan has settled in Australia, and there is nothing to indicate that other than failing to provide information on her pregnancy or the birth of her son there have been other breaches of the law or any other laws of Australia. The visa under consideration is a permanent visa, and she would otherwise have expected to remain in Australia on a permanent basis. Mrs Dang has some links with the Australian community with her aunt, niece and friends in Australia and having employment since arrival. The cancellation of the visa will cause some hardship and will have consequences for her ability to return to Australia in the short to medium term. Her current circumstances weigh slightly in favour of not cancelling her visa.

27. However, the basis for the visa was her relationship with Mr Dang and failing to disclose she had a child who is not Mr Dang’s child undermined the ability of the Department and this Tribunal to properly assess her visa application. The circumstances in which the non-compliance occurred weigh significantly in favour of cancelling her visa. She misstated the date she told Mr Dang about her child by two years and did not tell him about the child until after she was granted a permanent visa. I consider that factors that weigh heavily or significantly in favour of cancelling her visa outweigh the other factors that weigh in favour of not cancelling her visa.

28. As there was non-compliance by Mrs Phan in the way described in the notice given under s 107 of the Act, and having had regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

29. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

    Kate Millar
    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.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    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.