Sheridan (Migration)

[2017] AATA 2354

Sheridan (Migration) [2017] AATA 2354 (2 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adrian Sheridan

CASE NUMBER:  1609239

DIBP REFERENCE(S):  BCC2015/3787685

MEMBERS:Jan Redfern (Presiding)

Hugh Sanderson

DATE2 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 2 November 2017 at 10.00am

CATCHWORDS
Migration – Cancellation – Employer Nomination Permanent (EN) visa – Subclass 186 Employer Nomination Scheme – Incorrect information regarding job description – Further updated evidence provided in support – Correctly reflects work history and experience as electrician

LEGISLATION
Migration Act 1958, ss 5(1), 101, 103, 109(1), 362A
Migration Regulations 1994, Schedule 2

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

Zhao v MIMA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information and bogus documents in support of his application for the subclass 186 Employer Nomination Scheme 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.

Background

1. The applicant is a citizen of Ireland and is currently 32 years old. He first entered Australia in September 2008 holding a Working Holiday visa. He applied for and was granted a subclass 457 visa on 13 October 2010. On 7 June 2013 the applicant applied for the grant of a subclass 186 Employer Nomination Scheme visa nominated by Murphy Pipe and Civil Constructions Pty Ltd (hereinafter “Murphy Pipe and Civil”). The position he applied for was as an electrician. The applicant’s de facto partner, Anita Kelly, was included as a secondary applicant in the primary visa application. She has since become an Australian citizen.

2. In his application, the applicant claimed that since arriving in Australia he had worked as an electrician for various companies. He claimed that he had been working with Murphy Pipe and Civil from 22 August 2011 as an electrician. The applicant provided various documents in support of the claim that he had been working as an electrician, including a letter from Murphy Pipe and Civil confirming his employment as an electrician.

3. It was on the basis of the information provided by the applicant and Murphy Pipe and Civil that the applicant was granted his subclass 186 Employer Nomination Scheme visa in the nominated occupation of electrician.

4. The Department did an audit of Murphy Pipe and Civil. As a result of this audit, the Department considered that the applicant had provided false and misleading information to the Department in support of his application for his subclass 186 Employer Nomination Scheme visa. The Department wrote to the applicant on 29 January 2016 with a Notification of Intention to Consider Cancellation under s.109 of the Act.

5. The applicant responded to the Department’s allegations by providing statutory declarations and other documents. The applicant made the following claims:

   (1)He had always worked as an electrician and had not worked as a “mobile plant operator” as alleged by the Department;

   (2)As there was no electrician pay groups on some of his worksites, he was classified as a Construction Worker Grade 3 or 4 for payment reasons only;

   (3)Any information indicating the applicant was not working as an electrician was based on ineffective bookkeeping by Murphy Pipe and Civil and not due to the fact that the applicant was not working as an electrician;

   (4)The applicant had a skills assessment as an electrician in June 2012;

   (5)The applicant has continued to work as an electrician and was employed at that time as a Hazardous Areas Electrician;

   (6)The applicant is planning to marry his de facto partner of 8.5 years who is an Australian citizen;

   (7)The parties have purchased a home together in Australia;

   (8)The applicant’s partner works as a student advisor at the Endeavour College of Natural Health it would be difficult for her to be replaced in that position; and

   (9)The cancellation of the visa would have a devastating effect on their lives.

6. The Department found that the applicant had obtained a Certificate III in Electrotechnology – Electrician on 20 June 2012, but prior to this time did not provide any evidence to show he had the relevant skills and qualifications to perform the duties of an electrician in accordance with the ANZCO skill level requirement. The delegate also found that letters of support from employers indicated that the applicant was performing the duties of an electrician, but without the ANZSCO skill level requirement. Payslips provided by the applicant set out his pay rate for a SI Construction Worker Grades 2, 3 and 4 and the roles listed for those pay rates did not include an electrician. The pay rates received by the applicant were consistent with that of a construction worker.  These matters were said to be consistent with the conclusion that the applicant was not working as an electrician when working with Murphy Pipe and Civil.

7. According to the delegate the ANZSCO skill level requirement for an electrician was:

   “The entry requirement for this occupation is the qualifications and experience. AQF          Certificate III including at least 2 years of on-the-job training, or AQF Certificate IV        (ANZSCO Skill Level 3). At least 3 years of relevant experience may substitute for     the formal qualifications listed above. In some instances relevant experience           and/or on-the-job training may be required in addition to the formal qualification."

8. Critical to the delegate’s conclusions was the finding that the applicant did not provide any evidence to show that he had the relevant skill level; or qualifications to perform his duties as an electrician being those requirements set out in ANZSCO 34111.

9. Taking into account this information, the delegate concluded at [38] and [39] that the applicant had provided false information and bogus documents in support of his subclass 186 visa; where he claimed that he was working as an electrician and provided a letter from Murphy Pipe and Civil stating that while he worked for them he was employed as an electrician. The delegate then took into account reasons why the applicant’s visa should not be cancelled but concluded the reasons to cancel the visa outweighed the reasons not to cancel. Accordingly, the delegate cancelled the applicant’s visa.

10. The Tribunal was provided with the department file, which did not include all material relied on in the audit. The Tribunal requested this information, which was provided electronically, and these documents were provided to the applicant and his representative under s.362A of the Act.

11. The Tribunal conducted a telephone directions hearing on 28 June 2017, as a result of which, the applicant provided further evidence and submissions in support of his claims. 

12. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. In summary, based on the material before us, we are not satisfied that the applicant provided incorrect information or a bogus document to the Department in support of the visa application.

LEGISLATIVE FRAMEWORK AND QUESTIONS FOR DETERMINATION

1. 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.

2. 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.

3. While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in the administrative decision-making, in cases where the existence of certain facts grounds the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision-maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist (refer Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32]).

4. While the Tribunal is not bound by the rules of evidence and the decision-maker is not bound to follow legal principles such as those set out in Briginshaw v Briginshaw[1] , in deciding whether the ground for cancellation is made out, it is appropriate to have regard to the nature of the allegations and the gravity of the consequences.[2] Relevant to the facts of this case, the cancellation of a permanent visa, where the visa holder has been residing in Australia for years, has serious consequences and, in our view, any factual findings should be based on logical and probative material.

   [1] (1938) 60 CLR 336. In that case, Dixon J held at 362 that in civil matters, ‘the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.

   [2] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]

5. The questions for determination are therefore:

   (1)  Was the delegate entitled to issue the notice under s.107, namely are we satisfied that the delegate reached the necessary state of mind to engage s.107?

   (2)  If the answer to (1) is yes, was the notice valid?

   (3)  If the notice was valid and having regard to any response to the notice, was there non-compliance by the visa holder in the way described in the notice?

   (4)  If the answer to (3) is yes, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?

INFORMATION PROVIDED TO THE TRIBUNAL AND THE TRIBUNAL HEARING

1. The applicant appeared before the Tribunal on 28 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and Mr Michael Caitlin, a former workmate of the applicant. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

2. Prior to the hearing, the applicant provided further information to the Tribunal, including the following:

   (1)Statutory declarations by the applicant and his partner;

   (2)Letters from the applicant’s employers since 2014 confirming his employment as an electrician; and

   (3)Payslips confirming his employment as an electrician.

3. The applicant gave evidence as to his employment history. He stated that when he finished secondary school in Ireland at the age of 18 he became an apprentice electrician. Most of the work done at this time was mainly in domestic electrical work, although he later started doing larger commercial projects. Over that time, he was studying for the National Craft Certificate – Electrical, which he completed.

4. When the applicant came to Australia on a Working Holiday visa he said he obtained work through an agency putting together electrical switchboards. He then obtained employment with Setlow Constructions. The position included laying fibre optic cables in Queensland. He then obtained employment at Darracon Civil before returning to Setlow. He was working at Setlow as an electrician when they sponsored him for the subclass 457 visa.

5. The applicant stopped working at Setlow when the company went into liquidation. He said that he then obtained employment with Murphy Pipe and Civil as an electrician. The applicant was unable to explain the details of how Murphy Pipe and Civil set the pay rate he was on. He said the pay rate was simply put to him which he accepted. He did not discuss what pay rate he was on compared with other workers, but accepted that the pay he was receiving was comparable to those of similar qualifications working as an electrician.

6. The applicant acknowledged that some of the dates provided in the application as to when he started and finished work for various employers was not accurate. He had difficulty recalling exactly when he started or finished working with a particular organisation. He said the outline of who he was working with and the description of his duties was, however, correct. The errors in the dates were minor.

7. The applicant provided details of his obtaining the further qualifications as an electrician in Australia and the skills assessment provided. He provided details of the additional study he was required to undertake to complete the course. He said that he was originally applying for the certificate through Victoria University, however, changed to a South Australian Institute as the procedure through Victoria University was being delayed for reasons he could not understand.

8. The applicant said that when he was applying for the subclass 186 Employee Nomination Scheme visa he was advised by Murphy Pipe and Civil that he should be described as a Project Administrator. He said that he objected to this as he did not know what a Project Administrator was and he had always been employed as an electrician. He consulted a different migration agent to the one Murphy Pipe and Civil had recommended. His migration agent prepared the documents based on the information the applicant had had provided to him.

9. The applicant said that he had obtained a variety of different tickets whilst working at Murphy Pipe and Civil. He said the primary reason for doing this was that Murphy Pipe and Civil required all people who were working beside the machinery had to be aware of its working capacity. He said the courses gave him an opportunity to have a “day off” and if he was given the opportunity to get a ticket for any other type of construction type work, he would accept it. He said that he never used plant equipment in his normal daily work, but would only use it very occasionally if he needed to move any equipment around and there was no one else to do it at the time.

10. Included in the material provided by the Department as part of the audit, but not referred to in the decision by the delegate, was a document headed Medical Assessment dated 6 May 2014 which records the applicant’s occupational history from 2008 to 2014 as a “Pipe Layer”. Because this was inconsistent with the applicant’s assertion that he had worked as an electrician during this period, the Tribunal questioned the applicant about this inconsistency. The applicant confirmed that it was his handwriting on the form but said that he could not recall why he would have provided that information. His only explanation was that the medical assessment was required for the next job he was working on which was going to involve smaller crews and possibly more physical labour. He therefore wanted to ensure that he had been assessed to carry out all types physical labour. He said the information in the medical assessment was incorrect because he had been working as an electrician throughout his time in Australia.

11. The applicant’s partner, Anita Kelly, gave evidence to the Tribunal. She provided details of her work history and how the cancellation of the applicant’s visa would adversely affect their lives.

12. Mr Michael Caitlin gave evidence in support of the applicant by phone. He said that he had worked with the applicant from November 2014 when together at the Sino Iron Project. He said that he was working for Nilsson’s Electricals, subcontracted to Murphy Pipe and Civil. He said the applicant was working with him helping installing fibre optics. He provided details of the work at that site, together with other work that he and the applicant had been involved with over the three years they had worked together. Mr Caitlin gave consistent information as to the type of electrical work the applicant was engaged in throughout the time that he was working with Murphy Pipe and Civil.

13. Mr Caitlin stated that he had various tickets to operate certain machinery, however, did not do this work personally. He said that on a worksite you would often be given the opportunity to get tickets to work various plant and equipment but did not necessarily work on this machinery. He said that most people given the opportunity to get the tickets would take it and that on many of the worksites you would all help each other out so that if some plant or equipment needed moving you had the necessary qualification to do so. He said that this did not mean, however, that it was your role.

14. Mr Caitlin confirmed that based on his knowledge of the work the applicant had undertaken when he worked with him at Murphy Pipe and Civil, he had worked as an electrician. Mr Caitlin gave evidence that based on his subsequent dealings with the applicant he believed the applicant continued to work as an electrician once he was granted permanent residence.

15. The applicant also provided a letter from Murphy Pipe and Civil dated 8 July 2011 being an offer of employment in the position of “Electrical Technician”, a letter from Claudio Cardenas Electrical Supervisor, Nilsen Resources Pty Ltd dated 12 March 2012 noting that the applicant was an Industrial Construction Electrical Trades Assistant since 20 September 2012 and a letter dated 10 March 2012 from Brendan Lenihan, Sino Iron Project Site Supervisor at Murphy Pipe and Civil noting that the applicant had been working as an electrical trades assistant installing fibre optic cable.

CONSIDERATION OF EVIDENCE AND FINDINGS

1. 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. The critical issues before the Tribunal are therefore, 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.

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

1. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 by providing incorrect answers in their application for the visa and s.103 by providing bogus documents in support of the application.

2. The allegation raised was that, although claiming to have been employed as an electrician and providing documents from Murphy Pipe and Civil supporting this claim, the applicant had not in fact worked as an electrician  but been employed as a construction worker, most likely as a “Mobile Plant Operator” during the period 2008 to 2014. The applicant has denied this allegation and claimed that he was always employed as an electrician as claimed in the documents provided in support of the application and that he provided correct information in that application.

3. The investigation into whether the applicant had provided false information in respect of his visa application arose as a result of a larger enquiry by the Department into information provided by Murphy Pipe and Civil in respect of a number of different applications where they were sponsoring Employer Nomination Scheme visa applicants.

1. A number of the documents which were relied on by the delegate to find the applicant was not employed as an electrician are internal working documents of Murphy Pipe and Civil. Some of these documents, such as declarations as to particular Enterprise Bargaining Agreements (EBA) the applicant would be subject to, do not provide any specific reference to the applicant’s activities. This includes letters of employment dated 24 August 2012 and 5 October 2012 which refer to the applicant’s employment as a “construction worker” at a specified rate of pay. According to the applicant , when negotiating his pay rates he accepted the offer put to him by Murphy Pipe and Civil and those rates were comparable to pay rates for other electricians employed by Murphy Pipe and Civil and other subcontractors he was working with. He was not concerned that the offer referred to the generic term of “construction worker”. We accept this evidence and note that the fact the particular EBA may not have specified workers on that level as “electrician” does not of itself indicate the applicant was not working as an electrician. The Tribunal places little weight on this aspect in considering whether the applicant has provided false and misleading information or bogus documents.

2. The delegate relied on the fact that the applicant obtained, over the course of his employment with Murphy Pipe and Civil, a number of ‘tickets’ to operate various plant and equipment. The applicant explained that all employees working on construction sites where plant and equipment was being used were encouraged or required to undergo such training, if only to ensure they were aware of the use of this plant equipment which they would be working beside. In other words, Murphy Pipe and Civil encouraged, or required, that certain employees obtain the tickets for occupational health & safety reasons. This is consistent with the evidence of Michael Caitlin. Further, the applicant indicated that it was an advantage for him, if he was offered such training, to undertake it for his own career advancement.

3. The Tribunal accepts the evidence that simply by obtaining training to get the necessary ticket to operate machinery, does not necessarily mean that the applicant was working on that machinery, or that he was not working as an electrician. As is stated below, at the same time the applicant was obtaining training and tickets to operate plant and equipment he was undertaking further study to obtain further qualifications as an electrician.

4. Evidence that does appear to be inconsistent with the applicant’s claim is the information apparently provided by the applicant in the medical assessment document. This information was provided after the visa was granted but is inconsistent and difficult to reconcile with the applicant’s claims. While the applicant’s explanation is not entirely satisfactory, we accept his evidence because other objective evidence overwhelmingly supports his claim that he has the worked as an electrician throughout his time in Australia, as is elaborated on below

5. The applicant started working with Murphy Pipe and Civil in November 2011. The applicant provided work references from his previous employers confirming his employment with them and the nature of the work he did. This included the work references from his employers in Ireland together with the two companies he worked with in Australia as an electrician. The applicant was sponsored by Setlow Constructions for his subclass 457 visa on the basis of his employment as an electrician. Although it may be questionable to rely upon a reference from Murphy Pipe and Civil in light of indications that in other cases they have provided false references in support of the grant of visas both for 457 visa applications and Employer Nomination Scheme visas, weight must be given to the letters from other employers of the applicant which support the claim that he has been employed and is qualified to work as an electrician. None of these letters have been challenged by any evidence to the contrary and the applicant’s oral evidence about this work was both detailed and persuasive.   

6. The applicant provided the qualifications he has obtained in Ireland from Foras Aiseanna Saothai (Training and Employment Authority) as an electrician. This confirms his work as an apprentice in Ireland and has obtained the necessary qualifications, which were recognised in Australia, to work as an electrician.

7. The applicant provided his electrical license registration from South Australia to allow him to work as an electrician. He undertook a trades recognition assessment for the position of an electrician (general) as described in ANZSCO 341111 which he provided to the Department.

8. The fact that the applicant has obtained these qualifications and continued to study after his arrival in Australia indicates that he has the qualifications and was working as an electrician prior to his arrival in Australia, at the time he applied for and was granted the subclass 457 visa and at the time he applied for the Employer Nomination Scheme visa in 2013.

9. The applicant provided detailed information as to his work history. The work he described was consistent with the work described in ANZSCO 341111 as an electrician (general). This includes the period during which the applicant was employed by Murphy Pipe and Civil. The information as to the nature of the work he was engaged in was corroborated by Mr Caitlin.

10. The Tribunal has had the opportunity of taking evidence from the applicant at the hearing. The applicant presented as a genuine and truthful witness. He gave his evidence in a full and frank manner. The applicant noted that when he initially considered applying for the permanent visa he was advised by Murphy Pipe and Civil that he should apply on the basis being a Project Administrator. He stated that he could not understand why Murphy Pipe and Civil would suggest this as he did not even know what a Project Administrator was and he had always been employed and worked as an electrician. He claimed that the only reason Murphy Pipe and Civil suggested that he apply as a Project Administrator was because it would be simpler for them. The applicant refused to follow this advice and applied on the basis of his employment as an electrician.

11. That Murphy Pipe and Civil may have recommended to the applicant that he apply for the visa on the grounds of being a Project Administrator and not for his position as electrician indicates the level of haphazard shortcuts that appear to have been taken by Murphy Pipe and Civil in dealing with the Department of Immigration and Border Protection (the Department) and in their own record keeping at that time. This is also reflected in the internal documents of Murphy Pipe and Civil where the applicant was placed on an EBA which did not reflect the work he was doing, but only indicated the pay rate he was receiving.

12. As already noted, an issue that was said to be critical to the delegate’s finding that the applicant did not comply with ss. 101(b) and 103 of the Act was the fact that the applicant did not provide evidence that he possessed the ANZSCO 34111 skill level requirement at the relevant time (refer [29] to [32]). This is flawed reasoning.

13. The ANZSCO code was developed jointly in 2006 by a number of Australian and New Zealand agencies and departments to “improve the quality of occupation statistics between the two countries and the rest of the world”. The various occupation lists used by the Department (and its predecessors) have been derived from ANZSCO, or its predecessor ASCO.

14. The ANZSCO classification said to be relevant to this case is ANZSCO 3411, which includes 341111 Electrician (General), 341112 Electrician (Special Class) and 341113 Lift Mechanic. Relevantly, the description for this occupation provides as follows:

15. “ELECTRICIANS design, assemble, install, test, commission, diagnose,    maintain and repair electrical networks, systems, circuits, equipment,         components, appliances and facilities for industrial, commercial and domestic     purposes, and service and repair lifts, escalators and related equipment.” Under the heading “Indicative Skill Level” ANZSCO provides as follows:

    “Most occupations in this minor group have a level of skill commensurate with the   qualifications and experience outlined below.
              In Australia:

    AQF Certificate III including at least two years of on-the-job training, or     AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the   formal qualifications listed above. In some instances relevant experience      and/or on-the-job training may be required in addition to the formal           qualification.”

16. The application for a visa did not provide any representation or statement to the effect that the applicant complied with the indicative skill levels in ANZSCO 3411 merely that the applicant was being nominated as an Electrician (General) and that he had obtained a suitable skills assessment from Trades Recognition Australia on 20 June 2012. Murphy Pipe and Civil confirmed that the applicant had been working as an Electrician from 22 August 2011. The letter set out the tasks that had been undertaken by the applicant.  These tasks were consistent with the evidence of the applicant about what he was doing at Murphy Pipe and Civil and independent evidence provided by the applicant. They were also consistent with a number of the tasks identified in ANZSCO 3411. To conclude that the applicant was not undertaking the duties of an electrician because he did not have the relevant Australian qualification prior to 20 June 2012 was incorrect. Relevantly, ANZSCO notes that most occupations have a skill “commensurate with the qualifications and experience outlined” and in this case it is clear that the applicant had at least three years’ experience as an electrician when he joined Murphy Pipe and Civil.  In any event, the applicant’s qualifications, when they were obtained and what his duties involved were all set out in the applicant’s visa application. These details were not incorrect and the letter provided by Murphy Pipe and Civil was not bogus. 

CONCLUSION

1. The Tribunal has considered all the information with respect to whether the applicant was working as an electrician as was stated in his application for the Employer Nominated Scheme visa application. The Tribunal finds the overwhelming weight of evidence supports a finding that the applicant has throughout his time in Australia been employed as an electrician. The Tribunal finds that, in the information the applicant provided in his application as to his work history and qualifications, no incorrect answers were given or provided. Further, the Tribunal finds that the documents provided in support of that application accurately reflected the work history and experience of the applicant and were not bogus documents.

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

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Jan Redfern
Deputy President

Hugh Sanderson
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

1. Interpretation

   (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.

2. Interpretation

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).

1. Completion 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.

2. Information 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.

3. Incorrect 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.

4. Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

5. Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

6. Notice 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.