Sharafpour (Migration)

[2023] AATA 4204

Sharafpour (Migration) [2023] AATA 4204 (5 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammadali Sharafpour

REPRESENTATIVE:  Mr Rick Gunn

CASE NUMBER:  2306075

HOME AFFAIRS REFERENCE(S):          BCC2020/2079828

MEMBER:Amanda Mendes Da Costa

DATE:5 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 5 December 2023 at 9.51am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – notifying a change in circumstances – relationship ceased – applicant and his wife divorced prior to arrival – employment contribution to the hospitality industry – visa grant notification letter did not address change of circumstances – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 116, 140
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s 104 of the Act in that he failed to notify the Department of a change in his circumstances. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 23 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Majid Abdolai and Ms Penelope Dembalas.

4. The applicant was represented in relation to the review, with his representative also participating in the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

9. The documentation provided by the applicant for the purpose of the review, includes the following:

   ·Written submissions dated 16 November 2023.

   ·Subclass 175 visa grant dated 23 December 2014.

   ·Instagram messages between the applicant and his former wife, on various dates in June 2017.

   ·Statutory declaration of Mr Majid Abdolai, dated 13 November 2023.

   ·Statutory declaration of Ms Penelope Dembalas, dated 13 November 2023.

   ·Letter, Dr Nick Tsui, dated 8 November 2023.

   ·ABC News article regarding worker shortages in the hospitality industry, dated 31 October 2023.

   ·The Mirage article on issues in the hospitality industry, dated 18 May 2023.

10. The Tribunal has also considered the following documentation which accompanied the applicant’s response to the NOICC:

    ·Australian Taxation Office, Notice of Assessment for the applicant, for the year ended 30 June 2022.

    ·Applicant’s payslip (dated 26 December 2021).

    ·Employment reference for the applicant, dated 22 February 2023.

    ·Report, Hyacinth da Gama Monteiro, dated 21 February 2023.

    Background

11. On 7 December 2007 the applicant and his now former wife, Niyousha Taher Taleghani lodged an application for a Skilled-Independent visa as the Primary Visa Applicant (PVA),  The applicant was included in this application as a dependent applicant, making a combined application with his former spouse.

12. On page 14 of his Form 1276 (Australian Values Statement) the applicant stated that his current marital status was ‘married’, with 30 January 2004 being the date of his marriage to the PVA.

13. The Department received information that the PVA and the applicant divorced on 21 November 2116. Based on this information the Department considered that the applicant did not comply with his obligations under s104 of the Act. This was because subsequent to the grant of his Skilled-Independent visa on 11 November 2014 but prior to being immigration cleared to enter Australia as the holder of a visa on 1 July 2017 he failed to advise the Department in writing that he and the PVA had divorced on 21 November 2016.

14. The delegate found that the applicant’s divorce on 21 November 2016 constituted a change of circumstances that made his previous answers to the questions in relation to his relationship status in his Form 1276, incorrect in the new circumstances.

15. The delegate found that as of 26 November 2016 the correct answer in relation to his relationship status was ‘divorced’ not ‘married’.

16. On 15 February 2023, the Department sent the applicant a Notice of Intention To Consider Cancellation (NOICC) of his visa on the ground that he had not complied with s 104 of the Act because:

    ·Subsequent to the grant of his Skilled-Independent visa on 11 November 2014, but prior to being immigration cleared to enter Australia as the holder of the visa on 1 July 2017, he failed to notify the Department in writing that he and the PVA had divorced on 21 November 2016.

17. The delegate stated that the divorce of the applicant and PVA on 21 November 2016  constituted a change of circumstance that made his previous answers to the questions in relation to his relationship status in his Form 1276, incorrect in the new circumstances and that as of 21 November 2016, the correct answer in relation to the applicant’s relationship status was ‘divorced’ not ‘married’.

18. On 27 February 2023, the applicant replied to the NOICC (in writing). In his response, he acknowledged his non- compliance with s 104 as outlined by the Department in its NOICC and that ground existed for cancellation of his visa.

19. Due to an error in the original notification, the Department reissued the NOICC 9with corrections) on 4 April 2023. The applicant provided a response to the re-issued NOICC on 4 April 2023. The Tribunal notes that the information in the re-issued NOICC substantially corresponds to the information in the original NOICC and the applicant’s second response is the same as his original response. 

20. However, the applicant submitted that the delegate should exercise their discretion not to cancel his visa and that the matters were relevant to this consideration included the following:

    ·His marriage to the PVA was a genuine one and at the time of the visa application and grant, the couple were in a genuine spousal relationship.

    ·His failure to notify the Department of his change of circumstances although serious was at the lower end of such offending.

    ·At the time of his failure to advise the Department of his change of circusmtnces he did not fully understand the requirements to notify the Department that his marriage has ended.

    ·There are no other instances of his non-compliance with visa requirements.

    ·A substantial period of time has elapsed since he failed to notify the Department of his change of circumstances.

    ·He has made a valuable contribution to the Australian community by his employment in the hospitality industry, where there is current a worker shortage.

    ·His removal from Australia is likely to have a deleterious effect on his emotional and psychological well-being.

    ·He is of good character and has no criminal history in either Australia or Iran.

    Applicant’s evidence at the hearing

21. The applicant was born in Tehran, Iran and is currently 45 years of age. He was educated in Tehran and in 2000 graduated from the Islamic Azad University with a Bachelor of Science degree, majoring in Agriculture. His parents and two adult brothers continue to live in Tehran. The applicant’s parents are now retired whilst his brothers are each married and  employed.

22. The applicant and the PVA were initially introduced by members of their extended families and married four years after their first meeting on 30 January 2004. They have no children together and for the first six or seven years of their marriage were happy together. The PVA was employed in Information Technology and as she progressed in her profession, she spent an increasing number of hours each week at work. Although the applicant suspected that his wife may have formed a relationship with another man toward the end of their marriage, his wife denied that her long hours away from their home was due to her spending time with someone else.

23. On 7 December 2007, the applicant and the PVA lodged applications for Skilled-Independent (subclass 175) visas with the applicant seeking to satisfy the secondary requirements for the visa as a member of the family unit of the PVA. These visas were granted on 23 December 2014 whilst the couple were still living in Iran.

24. The applicant explained that when he and the PVA decided to leave Iran they considered applying for visas to Canada but ultimately decided that Australia was a safe country which would offer them a better standard of living and more enjoyable lifestyle.

25. He said that when they applied for visas to enter Australia, they put the rest of their lives on hold and delayed purchasing a house and having children until after their arrival in Australia. He described the long wait (approximately seven years) for their visa applications to be granted as being particularly difficult and considers that the strain associated with the wait had an adverse impact on their marriage.

26. The applicant explained that he and the PVA separated after their visas were granted and before the PVA departed Iran for Australia. Their divorce was granted on the date of the PVA’s arrival in Australia, 21 November 2016.

27. The applicant explained that he was still intending to come to Australia when he and the PVA separated. Although he thought he had to inform the Department of the breakdown in the marital relationship, the PVA had all the connections with the Department and gave him the necessary information about the visa grant. This was the reason for him contacting the PVA in June 2017 (by Instagram)  when she reassured him that he could still use his visa to enter Australia.

28. The applicant was not aware of the proposed departure date of the PVA from Iran and only became aware that she had travelled to Australia until after her arrival in this country. In June 2017 when the applicant had made arrangements to travel to Australia, he and the PVA exchanged a several messages via Instagram about his proposed travel to Australia.  The copies of the messages provided show that the applicant initially asks the PVA whether immigration officials will question him about their divorce upon his arrival in Australia and should he say anything to them about it. In her answer, the PVA tells him that he won’t be asked any questions at all because noting has been reported to the Department and immigration officials don’t care about these things.  She further advises that immigration official did not question her about her marital status upon her arrival in Australia and immigration officials in Australia will see him as an independent person[1].

    [1] Exchange of messages made on 21 June 2017.

29. A further exchange of messages[2] indicate that the applicant asks the PVA about when she will advise the Department of their divorce and whether this will affect his visa status. In reply the PVV advises him that when she decides to bring someone else to Australia on her visa, she will inform the Department, but this will not affect his visa.

    [2] Exchange of messages made on 22 June 2017.

30. The Tribunal discussed these messages with the applicant, indicating that they suggested that prior to his arrival in Australia, he had he had turned his mind to whether he would be permitted to enter Australia if immigration officials were aware that he was no longer in a martial relationship with the PVA. In response, the applicant explained that he had relied on the PVA’s advice in the matter because she had been solely responsible for making the visas applications and communications with the Department. He accepted her advice that his visa would not be affected by their divorce and that he was not required to disclose this to immigration officials upon his arrival in Australia.

31. The applicant further noted that the visa grant notification letter from the Department does not include information about the visa holders’ obligation to advise the Department of any change of circumstances, including the breakdown in their marital relationship.

32. The applicant told the Tribunal that he contacted the applicant about the matter because he wasn’t sure whether he should advise immigration officials on his arrival in Australia about the divorce.  He explained that the PVA had assumed responsibility for the documentation provided to the Department for the visa applications and that she had given him minimal information about the process and had only provided him with a copy of their visa grant notification. He also noted that the visa grant notifications provided to him and the PVA do not contain any information about the requirement to advise the Department of any change in their respective circumstance.

33. On 21 November 2016, the PVA arrived in Australia without the applicant. He arrived in in this country and was immigration cleared on 1 July 2017.

34. Since arriving in Australia, the applicant has been employed in a café in Footscray (where he was trained as a barista) and later at a café in Ascot Vale where he was employed for  approximately 15 months. He is currently employed at a café in Moonee Ponds. The Tribunal notes that the reference from the applicant’s previous employer (Little Byrd Management Pty Ltd) confirms that he was employed in the role of Head Barista for 15 months. The applicant is described as a skilled barista who is dependable, honest, and punctual, and who is recommended to other employers.

35. The Tribunal discussed with the applicant, the contents of the psychological report of Ms da Gama Monteiro. It noted that he attended Ms da Gama Monteiro for psychological counselling on four occasions, after the initial assessment session on 21 February 2023. In her report Ms da Gama Monteiro states that the applicant is suffering from a depressive illness and symptoms of Post-Traumatic Stress Disorder in the context of his visa being cancelled and the uncertainty of whether he will be required to leave Australia and return to Iran. She notes that he has developed strong feelings of isolation and hopelessness since his visa was cancelled and this had led to feelings of failure and insecurity which was linked with the development of low self-esteem.

36. The applicant told the Tribunal that the counselling sessions with Ms da Gama Monteiro had assisted him in coping with the shock, distress, and disappointment in learning that his visa had been cancelled. He explained that since his arrival, he had made a considerable effort to adapt to Australian values and lifestyle, work hard and make friends. Until his visa was cancelled, he thought that he would be able to live in Australia permanently.

    Evidence of Majid Abdolai and Penelope Dembalas at the hearing

37. Mr Majid and Ms Dembalas are a married couple who are close friends of the applicant. Mr Majid was introduced to the applicant by mutual friends after the applicant’s arrival in Australia. The applicant regularly attends family functions at their home, and they also go on social outings together including visit to the cinema, restaurants, and gatherings at the homes of mutual friends. Mr Majid has introduced the applicant to AFL football, and they regularly attend games in Melbourne during the football season.

38. Mr Majid and Ms Dembalas described the applicant as a kind and loyal friend who has made a commitment to the Australian community through his employment, social connections, and adherence to Australian laws. They attested to his gentle nature and desire to make a permanent home in Australia.

39. The Tribunal notes that their oral evidence was consistent with the contents of their respective statutory declarations and found them to be honest and credible witnesses.

    Applicant’s written submissions

40. The applicant’s written submissions may be summarised as follows:

    ·He acknowledges that he was divorced at the time of his arrival in Australia and now realise that this information should have been disclosed to the Department prior to his arrival in Australia.

    ·However, he relied on the advice of his wife (as the PVA) regarding the visa process (overs even years) during which the PVA took ownership of the application process for both her and the applicant.

    ·The applicant accepts that the Department was not notified of the applicant’s divorce as required under s 104 of the Act.

    ·His visa was not granted as the result of him relying on a bogus document.

    ·At the time of the decision to grant the applicant’s visa, he was a member of the family unit of the PVA and satisfied the secondary criteria for the grant of the visa.

    ·There is no evidence to suggest that the PVA and applicant were not in a martial relationship at the time the visas were granted.

    ·The applicant was genuinely unaware of the legal implications of not notifying the Department of his change of circumstances.

    ·A copy of the PVA’s subclass 175 visa contains no notification that she is required to advise the Department of any change of circumstances. Nor does it contain advice as to the consequences of non-disclosure of such changes.

    ·Copies of the Instagram messages between the PVA and applicant (prior to him arriving in Australia) demonstrate that he asked the PVA about disclosing their divorce to the immigration officials and she told him he would not be asked about their relationship.

    ·The Department’s file show that the PVA subsequently re-partnered and lodged a partner visa application in which the applicant is mentioned as her former spouse.

    ·The applicant has resided in Australia as a permanent resident for more than six years. He is currently working in the hospital industry which has faced continued staff shortages since the Covid 19 pandemic.

    ·Since arriving in Australia, the applicant has been co-operative with Departmental officers, there are no other incidents of non-compliance with his visa conditions, he has not breached any Australian laws, he has a settled life  with friends and a job.

    ·The above matters should warrant the Tribunal making a decision not to cancel the applicant’s visa.

    Was there non-compliance as described in the s 107 notice?

41. 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 in the following respects:

    ·     On 7 December 2007 the applicant and his now former wife, Niyousha Taher Taleghani lodged an application for a Skilled-Independent visa as the Primary Visa Applicant (PVA),  The applicant was included in this application as a dependent applicant, making a combined application with his former spouse.

    ·     On page 14 of his Form 1276 (Australian Values Statement) the applicant stated that his current marital status was ‘married’, with 30 January 2004 being the date of his marriage to the PVA.

    ·     The Department received information that the PVA and the applicant divorced on 21 November 2116. Based on this information the Department considered that the applicant did not comply with his obligations under s104 of the Act. This was because subsequent to the grant of his Skilled-Independent visa on 11 November 2014 but prior to being immigration cleared to enter Australia as the holder of a visa on 1 July 2017 he failed to advise the Department in writing that he and the PVA had divorced on 21 November 2016.

1. The applicant’s divorce on 21 November 2016 constituted a change of circumstances that made his previous answers to the questions in relation to his relationship status in his Form 1276, incorrect in the new circumstances, when the correct answer in relation to his relationship status was ‘divorced’ not ‘married’.

2. 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?

3. 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).

4. 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 content of the genuine document (if any)

   ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

   ·     the circumstances in which the non-compliance occurred

   ·     the present circumstances of the visa holder

   ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

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

   ·     the time that has elapsed since the non-compliance

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

   ·     any contribution made by the holder to the community.

5. 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.

   Purpose of the applicant’s travel and stay in Australia

6. The applicant was granted the Skilled-Independent visa as a secondary applicant and  the purpose of his travel to travel to Australia was to accompany his former wife as a member of her family unit. This purpose ended when the applicant and the PVA divorced on 21 November 2016 and were no longer in a marital relationship.

7. The Tribunal gives significant weight to this consideration in support of cancellation of the visa.

   Extent of the visa holder’s compliance with visa conditions

8. The Tribunal accepts that there is no evidence of the applicant failing to comply with the conditions of any visa held by him.

9. The Tribunal gives some weight to this consideration against cancellation of the visa.

   Degree of hardship that may be caused (financial, psychological, emotional, or other hardship)

10. The Tribunal accepts that if the applicant’s visa is cancelled and he returns to Iran he will be required to find employment and re-establish his life there after more than six years absence. This is likely to cause him considerable emotional distress in leaving Australia where he had hoped to make a permanent home and financial difficulties associated with the move.

11. However, the Tribunal notes that the applicant has parents and siblings in Iran with whom he can stay and receive support until he is in a position to live independently.

12. The Tribunal gives some weight to this consideration.

    Circumstances in which the ground of cancellation arose

13. The visa cancellation arose in circumstances where the applicant failed to advise the Department of the fact that he and the PVA had divorced prior to the applicant arriving in Australia and being immigration cleared.

14. The Tribunal notes that the evidence of the applicant is that he was unaware prior to his arrival in Australia that he was required to inform the Department of the change in his circumstances, i.e., his divorce from the PVA. It accepts that as the PVA, his former wife assumed responsibility for lodging their visa applications, including the provision of the necessary supporting documentation. However, the Tribunal considers that he did have some awareness of the potential relevance of his divorce to his visa grant, which is demonstrated by his questions to the PVA in the Instagram messages in June 2017.

15. The Tribunal gives some weight to this consideration in support of cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

16. The Tribunal accepts that the applicant’s behaviour towards the Department and its staff has been cooperative and that he replied to the NOICC and other requests for information in a timely manner.

17. The Tribunal gives some weight to this consideration against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

18. The applicant is a divorced man with no dependent children. Accordingly, the Tribunal is not satisfied that there would be any consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.

19. The Tribunal gives no weight to this consideration, either in support of or against cancellation of the visa.

    Whether there are mandatory legal consequences, such as whether cancellation of the visa would result in the visa holder being unlawful and liable to detention or whether indefinite detention is possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

20. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he/she will be detained indefinitely because as a United Kingdom citizen he will be able to return to the United Kingdom. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia, and he may be subject to an exclusion period in relation to some future visa applications.

21. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.

22. The Tribunal gives this consideration significant weight against cancellation of the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

23. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations or the best interests of a child would be breached as a result of the cancellation.

24. Accordingly, the Tribunal does not give this consideration any weight either in support of or against cancellation of the visa.

    If the visa is a permanent one, whether the visa holder has strong family, business, or other ties in Australia

25. As the applicant’s visa is a permanent one, the Tribunal has considered his family, business, and other ties in Australia. It accepts that he is employed and has made close friends in Australia. However, it notes that he is a divorced man who has not remarried and has no partner or children who are living in this country.

26. The Tribunal gives this consideration some weight against cancellation of the visa.

    Any other relevant matters

27. The Tribunal accepts that at the time of the visa grant, the applicant was in a marital relationship with the PVA and therefore met the secondary requirements for the grant of the visa. It further accepts that the applicant is remorseful for this failure to inform the Department of the change in his personal circumstances and that a substantial period of time has elapsed since this failure.

28. The Tribunal has also taken into account the applicant’s contribution to the hospitality industry since his arrival in Australia, particularly given the information contained in the news articles provided, which indicate that the hospitality industry in Australia is currently experiencing a significant shortage in workers.

29. The Tribunal gives these considerations significant weight against cancellation of the visa.

    Conclusion

30. 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.

31. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that on balance, the applicant’s visa should not be cancelled.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Amanda Mendes Da Costa
    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.