Ritesh Kanwar (Migration)

Ritesh Kanwar (Migration) [2018] AATA 1095 (3 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ritesh Kanwar
Ms Tamana Rajput
CASE NUMBER:  1701995
DIBP REFERENCE(S):  BCC2016/514786
MEMBER:Hugh Sanderson
DATE:3 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 03 April 2018 at 11:20am

CATCHWORDS
Migration – Cancellation – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration) Scheme – Sponsor’s change of circumstances – Did not notify the Department – Position no longer available with the Sponsor – Family returned to India voluntarily – No substantive contributions to the Australian community
LEGISLATION
Migration Act 1958, ss 104, 107,109, 140
Migration Regulations 1994 r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 Immigration to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the first named applicant (hereinafter the applicant) failed to advise the Department of Immigration of changes in his circumstances with regards to his prospective employer and sponsor prior to the grant of the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
Background
The applicant is a citizen of India. He first arrived in Australia in 2008 on a Student visa. He has qualifications as a cook and in the hospitality industry. He is married to the second named applicant who was a secondary applicant of the applicant’s visa application.
The applicant applied for the Subclass 187 Regional Sponsored Migration Scheme visa on 20 April 2015. He was sponsored for the visa by KK Food Venture Pty Ltd trading as Gidgee Bug Restaurant. The director and owner of that company is Andy Arora (aka Anshul Arora). It was stated that the restaurant operated in Barcaldine in regional Queensland. In the application, the applicant stated that he had been working at the restaurant from 1 December 2014 to 15 April 2015 in the position of a cook. He stated that his residential address was in Nundah in Brisbane.
The applicant was granted the visa on 14 October 2015. Over the course of the processing of the application, the applicant contacted the Department on 7 September 2015 to advise the Department of incorrect answers in the application. The answers that the applicant advised the Department were incorrect were that he was unmarried and the residential address he provided was incorrect. He provided the correct information.
The Department became aware of information after the grant of the visa. This indicated the following:
·On 13 November 2014, KK Food Venture Pty Ltd was registered as a business;
·On 7 April 2015, the applicant signed an employment contract with the sponsor to work at the Gidgee Bug Restaurant in Barcaldine, after having started work there in December 2014;
·In April 2015 the applicant ceased work at the restaurant;
·On 14 August 2015 the solicitors of the landlord of the premises where the restaurant was located wrote to the sponsor noting the premises had been abandoned with five months of rent owing to the landlord;
·On 31 August 2015 the landlord terminated the lease on the restaurant premises;
·In September 2015 the electricity for the premises was disconnected;
·By the beginning of October 2015 the business had been completely vacated; and
·After the visa had been granted, the applicant returned to India in February 2016.
The letter from the landlord’s solicitor, dated 5 August 2015, to the lawyer for the sponsor states as follows:
Please confirm that you act for KK Food Venture Pty Ltd the leasee of 115 Oaks Street, Barcaldine.
Settlement was completed on 2 December 2015 and the assigned lease term ends on 31/10/2015.
The premises has been abandoned with 5 months of rent owing to the landlord.
Ergon Energy has been notified and is reading the meter for electricity use.
Please find enclosed Notice to remedy breaches of the lease.
Please notify us as a matter of urgency regarding the intention of the leasee.
The owner of the company responded to this notice on 18 August 2015 stating as follows:
Apologies for the delay in responding to the email. I do understand that the rent is outstanding and wish to assure you that it will be paid before the current lease finalises. I also wish to advise that the business has not been abandoned but temporarily shut down as there was a energy and water ombudsman dispute with ergon energy and that they had disconnected power. Unfortunately as majority of our appliances run on electricity we were unable to run without electricity. Also We wish to state that we have no intentions to run away or move out of the business without paying any rent. Kindly confirm the acknowledgement of this document and that the landlord is happy to give us the requested time to clear the outstanding dues. [sic]
The Department wrote to the applicant on 9 January 2017 with a Notice of Intention to Consider Cancellation under s.109 of the Act. The reasons for the notice were set out and the applicant was invited to comment on or respond to that information.
The applicant’s agent responded by providing submissions in response and also statements from Mr Arora and a friend of the applicant. It was claimed that the visa should not be cancelled for the following reasons:
·The applicant had only been working two days a week at the restaurant prior to April 2015 and had been travelling from Brisbane and staying in Barcaldine with a friend on the days he worked;
·The applicant decided not to work full-time at the restaurant until after he was granted the visa and he was under no obligation to do so;
·Although the restaurant was not open, it had not ceased trading and the applicant anticipated it would reopen once the lease was finalised;
·The applicant was not aware of the business ceasing to operate while his visa application was being processed;
·The applicant was required for urgent family reasons to return to India after the grant of the visa and upon his return he was employed by the sponsor at another restaurant in Palmwoods;
·There is no evidence to show that the business could not have provided employment to the applicant before the grant of the visa;
·The applicant’s wife is currently 29 weeks pregnant and due to give birth in April 2017 and cancellation of the visa would cause her stress;
·There is no evidence that the applicant had been uncooperative with the Department and no other instances of non-compliance or breaches of Australian law; and
·The applicant has worked in Australia and paid his taxes.
The delegate who considered the cancellation noted the following issues:
·The change in circumstances of the sponsor indicated that the business had stopped operating and was no longer able to offer him employment in the position of a cook in Barcaldine at the time of the grant of the visa;
·The sponsor had not paid his landlord the rent monies or the utility accounts for some period and the utilities were disconnected;
·The claims that the sponsor was negotiating a new contract in August 2015 is not plausible due to the significant time that the rent had not been paid and that the business had been closed for some time;
·The sponsor had only been established in November 2014 and was a start-up company and the restaurant in Barcaldine had only been opened for a short period before it was closed and did not trade further indicating that it was always questionable whether there was a genuine need for the position of cook;
·The fact that the applicant may have later found casual work with the director of the sponsor is irrelevant; and
·There is a responsibility on the sponsor and the applicant to communicate with each other with regards to the position and it is not plausible that the applicant would not have been aware the restaurant had closed and the nominated position of a cook was no longer available.
Taking these matters into account, the delegate found that the applicant had failed to notify the Department of changes in circumstances and therefore did not comply with s.104(1) of the Act. The delegate then considered whether they should exercise the discretion to cancel the visa. The delegate noted the following issues:
·The applicant was under an obligation to advise the Department of the change of circumstances of his sponsor and failed to do so;
·Had the applicant notified the Department that the restaurant had closed down it is likely that the applicant would not have been granted the visa;
·The applicant currently resides in Brisbane and his wife (at that time) was pregnant;
·If the visa were cancelled, the wife could apply for a Medical Treatment visa to be able to remain in Australia until after the birth of her child;
·After the birth of the applicant’s child, all the family can return to India to live;
·The applicant had cooperated with the Department and there were no other instances of breaches of any visa or breaches of Australian law;
·The non-compliance of the applicant occurred between August 2015 and October 2015; and
·Apart from paying tax, there is no information that the applicant has contributed to the Australian community.
Based on these factors, the delegate concluded that the applicant had deliberately and knowingly withheld information from the Department about his sponsor that would have meant that he would not have been granted the visa. The delegate found that the reasons for not cancelling the visa did not outweigh the reasons for cancelling the visa. Accordingly, the Department issued a decision cancelling the applicant’s visa.
Information to the Tribunal
The applicant appeared before the Tribunal on 28 March 2018 to give evidence and present arguments. The applicant had departed Australia on 26 February 2018 and the hearing was conducted by way of telephone link.
The applicant said that he had returned to India and was living with his wife and one-year-old son and his parents. He said that he was not currently working, although he was trying to find a job. He said that he had applied for another Subclass 187 visa based on his employment in a restaurant in Cannonvale. He said that he started working there after his wife returned to India in August 2017.
The applicant said that he had been living in Brisbane, but then lived in Barcaldine for three months. He then said that he was only staying in Barcaldine three days per week while he was working in the restaurant. He said that he would return for four days each week to continue to live in the home he was renting in Brisbane. He said that after he was granted the visa he then travelled to India and returned with his wife and continued to live in Brisbane, but then started working for his sponsor in a different restaurant in Palmwoods, 100 km north of Brisbane. He said that he would travel to work in the restaurant each day, which only took one hour. He said that he was also working driving taxis in Brisbane and had been doing this all the time from 2012 up to 2017.
The Tribunal asked the applicant about his time in Barcaldine. He said that he could not remember the name of the person who he shared a home with there. The Tribunal indicated that it would not be plausible that if he spent three months living in Barcaldine and working with this person that he would not remember the name of the person he claimed to have been living with. The applicant said that he spent about three months working in Barcaldine, but only for about 10 or 15 days over that three month period. He said that he stopped in April 2015 as the owner of the restaurant, Mr Arora, was only training him for that period and he was told there would be a place for him full time in the restaurant once Mr Arora stopped working there.
The applicant claimed that he spoke to Mr Arora about once every two weeks. He said Mr Arora always told him that the restaurant was going alright. He claimed that he did not know the restaurant had closed and only became aware of this when he was contacted by the Department.
The applicant said that after he was granted the visa he contacted Mr Arora and told him that he had to return to India to bring his wife back to Australia. He said that when he returned to Australia Mr Arora told him that he did not need him to work in the restaurant at Barcaldine but would get him to work in his restaurant in Palmwoods. He again claimed that he did not know that the restaurant in Barcaldine had closed until he was contacted by the Department when they took the first steps to cancel his visa.
The applicant said that his family depend on him and he cannot find work in India. He said that he has already applied for another visa to enter Australia.
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.
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 s.104 of the Act in that the applicant failed to advise the Department of changed circumstances that meant that answers to questions in his application were incorrect in light of the new circumstances. Specifically, it was alleged that the applicant did not notify the Department that his employment in the position of cook with his sponsor was no longer available at the time of the grant of his permanent visa.
The applicant was granted his Subclass 187 visa on 14 October 2015. At that time he was living in Brisbane working as a taxi driver. The applicant gave evidence that he had always rented accommodation in Brisbane until he commenced work at Cannonvale in August 2017.
The information as to when the applicant worked at the restaurant in Barcaldine is inconsistent. In his application which was filed on 20 April 2015, he claims to have worked there from 1 December 2014 to 15 April 2015. In the statement provided by the applicant from Mr Arora it is claimed that he commenced working at the restaurant on 28 December 2014 and continued to work there until 30 April 2015. He later said he only worked there for three months. There is nothing in the application to indicate that he was working part-time. In statements the applicant provided from Mr Arora and Mr Bhullar, with whom it was claimed the applicant lived and worked while in Barcaldine, it was stated that he worked two days per week. During the hearing, the applicant said that he only worked 10 or 15 days over the three months that he worked in Barcaldine. He was unable to provide the name of the person he claimed that he was living and working with while staying in Barcaldine.
These inconsistencies called into question the credibility of the applicant and whether he ever worked at the restaurant in Barcaldine or ever had an expectation or belief that he would be employed in that restaurant on a full-time basis after the grant of the visa.
Prior to the grant of the visa, the restaurant in Barcaldine was closed. Certainly, by 31 August 2015 the lease on the premises had been terminated and the restaurant had ceased operating for some time. The rent had not been paid on that lease since April 2015, the last time when the applicant was claiming he was working at the restaurant. It is likely that the restaurant stopped all operations in April 2015. It was certainly not an ongoing operation in August 2015, prior to the grant of the visa, and had no likelihood of operating again. The fact that the restaurant had stopped operating meant that the visa applicant would not be able to be employed in accordance with the claims that had been made in his application for the visa, including the employment contract which had been provided by the applicant. The Tribunal finds that the fact that the restaurant in Barcaldine had ceased operating was a change in circumstances that was information which meant answers provided by the applicant in support of his application were incorrect.
The applicant claimed that he only became aware of the fact that the restaurant in Barcaldine had closed down when he was contacted by the Department in January 2017 with the notice of intention to consider cancelling his visa. The Tribunal does not accept this.
The applicant claims to have been working in Barcaldine until April 2015 when it appears the owner of the business ceased making any payments for the rent on the premises in Barcaldine. The applicant claims that he would speak to Mr Arora about every two weeks over the period that he was waiting for the grant of the visa. He claims that over this time he did speak to Mr Arora about the operation of the restaurant and that he was told that it was always ‘going alright’. He claims that when he was granted the visa he again contacted Mr Arora to advise him that he would be returning to India for a short time and would be returning with his wife. He claims that he was not told at the time that the restaurant in Barcaldine had closed or that he would not be able to work at that restaurant. He claims that upon his return to Australia Mr Arora arranged for him to work at another restaurant in regional Queensland, but not the one in Barcaldine.
The Tribunal does not accept these claims. The Tribunal does not accept that if the applicant were in regular contact with Mr Arora he would not be aware that the restaurant in Barcaldine had closed and that he would not be offered work in the restaurant if he were granted the visa. The Tribunal does not accept that when the applicant returned from India he would not have already been aware that the restaurant in Barcaldine had closed and that he would not be offered any work there. The fact that the applicant makes this claim undermines his statement that he did not know at any time before that of the closure of the restaurant.

The Tribunal finds that the applicant had knowledge by not later than August 2015 that the restaurant in Barcaldine had closed, almost two months prior to the grant of the visa. The Tribunal finds that the applicant was aware that as a result of the closure of the restaurant in Barcaldine that he would not be employed in this restaurant as he had claimed in his application and the documents the applicant provided to the Department in support of that application. The Tribunal finds that the closure of the restaurant in Barcaldine was a change of circumstances that made the answers in his application incorrect and that the applicant failed to inform an officer of the Department and provide the correct information as soon as practicable after he became aware of that information.
For these reasons, the Tribunal finds that there was non-compliance with s.104 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 r.2.41 of the Migration Regulations 1994 and are set out below.
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.
The correct information
The correct information which the applicant was required to provide to the Department was that the nominated position which was the basis of the grant of his visa was no longer available as the restaurant in Barcaldine had closed. The applicant was required to provide this information to the Department as soon as practicable. The Tribunal has found that the applicant would have been aware of the closure of the restaurant not later than August 2015. That the applicant did not provide this information to the Department does not provide any support for not cancelling the visa.
The content of any genuine document
This issue is not relevant in the current matter.
Whether the decision to grant the visa was based, wholly or partly, on incorrect information
The grant of the visa was based on the claim that the applicant would be employed on a full-time basis as a cook in the restaurant at Barcaldine. As that restaurant had closed prior to the grant of the visa, if the applicant had provided this information to the Department the Department would have found that the position was not still available to the applicant and the applicant would not have met one of the criteria for the grant of the visa.
If the applicant had advised the Department of the incorrect information the applicant would not have been granted the visa. He did not do so as he was aware that his visa would not have been granted to him. This does not support the exercise of the discretion not to cancel the visa.
The circumstances in which the non-compliance occurred
The non-compliance by the applicant was the fact that the applicant failed to advise the Department that the restaurant in Barcaldine had closed. As set out above, the Tribunal does not accept the claims made by the applicant that he only became aware that the restaurant had closed when he received the notice of intention to consider cancelling his visa from the Department. The Tribunal finds that the applicant and the applicant’s sponsor would have been aware that with the closure of the restaurant in Barcaldine the applicant would not meet the criteria for the grant of the visa as the position was no longer available to the applicant. The Tribunal finds that the applicant made a deliberate decision not to advise the Department of the closure of the restaurant at any time in the hope that the visa would be granted to him. His failure to advise the Department does not support exercising the discretion not to cancel his visa.
Present circumstances of the applicant
The applicant is currently living with his wife and child in India. His wife and child returned to India in August 2017 and he followed them in February 2018. They are living with his parents. Although the applicant claims that he has not been able to find employment in India, no further information has been provided about this and there is no information before the Tribunal that the applicant faces any difficulties in remaining living in India. The applicant has stated that he has filed a further visa application to be able to live in Australia.
Although the applicant may wish to live in Australia, there is no credible information which would indicate the applicant faces any hardship in India. His family returned to live in India voluntarily. He has the support of his parents. The Tribunal accepts that the applicant would prefer to live in Australia than in India, however, places only limited weight on this when considering whether to exercise the discretion to cancel his visa.
Subsequent behaviour of the applicant
The applicant engaged a migration agent and provided a response to the notice of intention to consider cancelling his visa. He provided various documents in support of the submissions made by his migration agent. He denied that there had been any non-compliance by him in respect of his visa application or a failure to advise the Department of a change in circumstances that made answers in his application incorrect. The fact that he did respond to the Department’s notice must be given some weight in his favour.
Any other instances of non-compliance
There is no information before the Tribunal that the applicant has failed to comply with any other direction of the Department or that there are any other instances of non-compliance.
The time since the non-compliance
The non-compliance occurred not later than August 2015 when the applicant failed to advise the Department of the change of circumstances, being the closure of the restaurant in Barcaldine where he had claimed that he would be working upon the grant of the visa. His visa was granted to him on 14 October 2015. It is now almost two and a half years since the applicant was granted his visa.
There has not been any significant delay from the time of the non-compliance to the determination of whether the visa should be cancelled. The applicant continued to live with his wife and child in Brisbane until August 2017 when his wife and child returned to live in India. The applicant then moved to Cannonvale to a job in an Indian restaurant there. The applicant has since returned to live with his wife and child in India. The Tribunal finds that the passage of time since the non-compliance has not unduly prejudiced the applicant in any way.
Breaches of the law
There is no information before the Tribunal that the applicant has breached the law in Australia in any way.
Contributions made to the community
The only submission made in respect of contributions to the community was that the applicant had been employed in Australia and paid his taxes and contributed to the community within a regional area. The payment of tax on income earned is the responsibility of any income earner. Details of the applicant’s earning over the time he has been in Australia and the payment of any tax has not been provided to the Tribunal. The Tribunal places no weight on this when considering whether to exercise the discretion to cancel the applicant’s visa. There is no information which would indicate the applicant has made any financial contribution to any charity or any other organisation over and above his compulsory taxation requirements.
Until August 2017, the applicant has always resided in Brisbane, even when he has been claiming to have been employed on a casual basis in regional Queensland. There is no information which would indicate the applicant has made any contribution to a regional area of Australia.
The Tribunal finds that the applicant has not made any contributions to the Australian community over any period that he has resided in Australia. The Tribunal places no weight on this aspect in considering whether to exercise the discretion to cancel the applicant’s visa.
Other issues
In the submissions made on behalf of the applicant in response to the Department’s notice of intention to consider cancelling his visa the applicant’s agent denied that there had been any non-compliance and, therefore, did not provide any explanation as to why the applicant failed to provide the correct information. At the hearing, the applicant again claimed that he had no knowledge that the restaurant in Barcaldine had closed until he was advised by the Department. The Tribunal has not accepted this claim. As set out above, the Tribunal finds the applicant was aware by no later than August 2015 that the restaurant had closed and he would not be able to work there in the future.
If the applicant’s visa is cancelled the visa of the applicant’s wife is also liable for cancellation. The applicant’s child would also not be entitled to the grant of any visa at this time. The applicant and all his family are Indian nationals and are able to reside in India. They have all returned to India voluntarily. The family may stay together in India and there is no information that they face any persecution or difficulties residing in India. The applicant has stated that he has made another application to be able to reside in Australia. He is not, at present, the holder of any Australian visa and is not able to return to Australia at this time.
Overall assessment
As set out above, the Tribunal has found that the applicant failed to advise the Department as soon as practicable or at all of a change in circumstances which made answers to questions in his visa application incorrect. The Tribunal has considered all the circumstances of the applicant and his family both individually and cumulatively. The Tribunal finds that the applicant deliberately failed to provide the information as to the change of circumstances knowing that if he did so he was unlikely to be granted the visa. Considering all the circumstances above, the Tribunal finds that the reason for cancelling the applicant’s visa outweighs any factors, both individually and innovatively, why his visa should not be cancelled.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Hugh Sanderson
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.

[2018] AATA 1095

3 April 2018

Key Legal Topics

Areas of Law

Immigration

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