Singh (Migration)

[2019] AATA 1244

Singh (Migration) [2019] AATA 1244 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amrit Singh

CASE NUMBER:  1822046

DIBP REFERENCE(S):  BCC2017/2151476 BCC2018/4136115 BCC2018/4136118

MEMBER:Adrienne Millbank

DATE:9 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 09 April 2019 at 4:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – accompanying family member Spouse/De facto – not in a genuine spousal relationship – lived separately in different cities for past four years – consideration of discretion – visa granted to secondary applicant based on incorrect information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 101, 107, 109
Migration Regulations 1994 (Cth), rr 1.15A, 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 Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a 31 year old Indian national who first arrived in Australia on 13 March 2015 as a declared ‘Spouse/De facto’ accompanying family member, secondary applicant, on his wife’s then Higher Education Student (573) visa. He and the primary visa applicant were granted the Subclass 500 visas on the basis of the same information.

3. The primary visa applicant’s Provider Registration and International Student Management System (PRISMS) records indicate that she has been enrolled a Graduate Diploma of Business Administration and a Master of Business Administration (MBA) during her four years in this country. Evidence was provided that she successfully completed the Graduate Diploma of Business Administration, an eight-month course, and was awarded the Diploma on 18 December 2017; and that at the time of decision has completed or been awarded credit for three units towards the MBA.

4. In the circumstances of a combined application, s.98 of the Act clarifies that 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.

5. The Delegate cancelled the visa under s.109(b) of the Act, on the basis that the applicant was found not meet Public Interest Criterion (PIC) 4020(1) and therefore s.101(b). The Delegate found he provided incorrect answers on the application form when he stated that he was the Spouse/De facto partner of the primary visa applicant, and when he declared that the information he had provided in his application was complete and correct in every detail.  Following information obtained by a border official during an interview with the applicant at Brisbane airport on 30 May 2017, the Delegate determined that he was not in a genuine spousal relationship with the primary visa applicant; that he was not her spouse or de facto partner; and that he had provided incorrect information in his application.

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

7. The applicant appeared before the Tribunal on 21 March 2019, to give evidence and present arguments. The hearing was a joint hearing, by consent, with the primary visa applicant whose visa was cancelled on the same grounds and who also applied for review. The secondary applicant, who lives in Brisbane, appeared in person. The primary visa applicant appeared by video from Hobart where she has lived since arriving in Australia. This decision is in relation to the secondary applicant.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with 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.

11. 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.

12. In the present matter, the Tribunal is satisfied that the Delegate had reached the necessary state of mind to engage s.107 and that the notice issued on 28 June 2018 under s.107 complied with the statutory requirements.

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

13. 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.101(b) in the following respects: in the primary visa applicant’s current visa application she provided as answers to questions on her application form that there were accompanying family members included in her application; that the applicant was her spouse or de facto partner, and that the information provided on her application form and on any attachments to it was complete and correct in every detail. 

14. At the hearing the Tribunal provided the applicant with a copy of a s.375A certificate, which it advised it had determined to be valid insofar as the documents covered by the certificate identified officials who had passed on information adverse to the applicant and who did not want to be identified for reason of personal safety. The Tribunal invited the applicant to comment on its validity. The applicant made no comment on the validity of the certificate.

15. Adopting the procedures in s.359AA of the Act, the Tribunal advised the applicant that the information in the documents covered by the certificate was that when interviewed by border force officers at Brisbane’s international airport on 30 May 2017 he stated: that he worked in a chicken factory in Brisbane; that he had not seen his wife for nine months, then corrected this after further questioning to more than two years; that his marriage in 2013 was an arranged marriage; that the primary visa applicant had been studying in Tasmania for two years but he could not remember what she was studying; that he lived with his brother in Brisbane in a shared house with two other Indian nationals; and that he and his brother had had visa issues before. The information was also that the interviewer found a record of only one conversation, on 13 December 2016, the date of lodgement of the visa application, with the primary visa applicant on the applicant’s mobile phone, and this conversation involved conveying basic information about his family members and what he intended to do when he returned to India.

16. The Tribunal further advised the applicant, adopting the procedures of s.359AA of the Act, that it had the primary visa applicant’s PRISMS records, information about all of his and the primary visa applicant’s visa applications and outcomes, and their international movement records.  The Tribunal advised the applicant that the information set out above was relevant because it indicated that he was not in a genuine spousal relationship, as defined in the Act, with the primary visa applicant, and that he was therefore not her spouse or de facto partner for migration purposes.

17. The Tribunal advised the applicant that subject to his comments in response, the information mentioned in paragraphs 15 and 16 above could lead or contribute to the decision under review being affirmed. The applicant was advised that he could seek an adjournment in order to consider his response and/or his responses during the hearing when issues based on the information were raised. The applicant did not seek an adjournment. The primary visa applicant then stated that she was in a genuine relationship with the applicant and that she had provided documentary evidence to demonstrate this.

18. In his written response to the Department’s Notice of Intention to Consider Cancellation (NOICC), in a submission to the Tribunal and at hearing, the applicant disputed the Delegate’s finding that he and the primary visa applicant were not in a genuine spousal relationship. He acknowledged that he and the primary visa applicant have lived separately, in Hobart and Brisbane, for the last four years, and that they have not met face-to face since shortly after their arrival in March 2015. He acknowledged that he moved to Brisbane to live with his brother within days of his arrival in Australia, but claimed that this was for financial reasons; that he could find paid work in Australia only with the assistance of his brother.

19. The applicant explained that he has not visited the primary visa applicant in Hobart since he went to Brisbane to live with his brother for financial reasons, and because the primary visa applicant shares lodgings with other Indian women and her landlord will not allow the applicant to stay with her. The applicant claimed that the primary visa applicant has not visited him in Brisbane because she has struggled with her studies and family illnesses in India. The Tribunal accepts that the primary visa applicant has struggled with her studies; she acknowledged that she has completed only an 8-month long Graduate Diploma-level course in four years in Australia. The Tribunal does not accept however that the primary visa applicant’s struggle to cope with her studies is a credible reason for the parties not being together. The Tribunal found the primary visa applicant’s choice to ensconce herself in lodgings in Hobart where the applicant was not allowed to visit or stay with her to be not congruent with the applicant’s claim to be in a spousal relationship with her.

20. The applicant explained that he could provide no evidence of communicating with the primary visa applicant before his airport interview because neither he nor the primary visa applicant knew they needed to collect such information for the purpose of the visa application; because he was working graveyard shifts as a cleaner at a poultry factory and so couldn’t call the primary visa applicant and because he didn’t want to disturb her. The applicant’s and the primary visa applicant’s responses on such issues at hearing were identical to each other’s and identical to their written statements. They appeared rehearsed and were unconvincing.

21. The Tribunal notes that the primary visa applicant would have provided evidence at the time of application of access to finances sufficient to support herself and the applicant, and to pay her tuition fees, and does not accept that the applicant had to live and work many thousands of kilometres away in order to support the primary visa applicant financially. The Tribunal considers that if the applicant was an accompanying family member Spouse/De facto of the primary visa applicant, they would have lived together.

22. The primary visa applicant claimed, and provided evidence, that she requested a release from her course provider in Hobart, which was refused because she had not studied in her enrolled course for six months.  She acknowledged at hearing that she in fact sought to transfer to a provider in Melbourne, not Brisbane, as she had claimed in her response to the NOICC. She explained that the reason she sought to transfer to a provider in Melbourne rather than Brisbane was because ‘an agent’ organised the proposed transfer without her knowledge. She also claimed that the reason she originally enrolled with a Tasmanian provider and has stayed in Tasmania is because an agent in India organised the enrolment and visas and she didn’t want to risk anything by moving to Queensland.

23. The applicant was vague and non-responsive when asked about a previous unsuccessful application for a Subclass 457 visa. He claimed he could barely remember this application or the circumstances of the application, but stated that it was organised by the same agent who organised the student visas and that this agent was responsible for a false document provided for the current visa application, namely, his genuine temporary entrant statement. The parties advised that this statement was a fabrication; that the applicant never had any intention, as claimed in the statement, to work on mango, banana and cane farms in northern Queensland with view to improving farming techniques on ancestral farmland owned by his family in India.

24. The applicant acknowledged that the primary visa applicant has travelled to India five times without him, and that he has travelled to India once without her. He claimed that they travelled only for reasons of their respective families’ crises and emergencies, and that they were too busy working and studying and in any event could not afford to travel home to India together, or to travel domestically to see each other. This claim is not congruent with the applicant’s claim to be the primary visa applicant’s accompanying family member Spouse/De facto.

25. The Tribunal asked the parties why, if they were unwillingly separated as claimed because of their financial and study circumstances and the peculiar arrangements made by their agent in India, they hadn’t moved in with each other after the primary visa applicant’s enrolment was cancelled and after they both lost work rights.  The parties maintained that they have continued to live separately for financial reasons; because the applicant could live for free with his brother; because the primary visa applicant didn’t want to risk losing her lodgings in Tasmania; and because the primary visa applicant wanted to be near her course provider for when she could resume her studies. No evidence was provided to support the applicant’s claims that he has been unable in the last four years to obtain employment in Tasmania even such as a cleaner in a chicken factory working the night shift. No evidence was provided that accommodation is so hard to obtain in Tasmania that the primary visa applicant has not dared during four years to risk losing a shared lodging where her husband is not allowed to stay.

26. The Tribunal notes that the applicant was able to finance a trip to India, and the primary visa applicant was able to finance five trips to India, but neither was able to finance a trip with or to see the other. In summary, the Tribunal found the evidence provided by the applicant in support of his claim to be in a genuine relationship and forcibly separated for four years from the primary visa applicant by financial, study and lodging constraints, and by their meek acceptance of agents’ arrangements, unconvincing.

27. The Tribunal put to the parties several times during the hearing that having considered their circumstances and explanations as to why they lived separately, it found it implausible that, if they were in a genuine spousal relationship, they would not have lived with each other in Australia regardless, or because, of financial and study challenges.  The Tribunal invited the applicant to consider his response. The applicant in response maintained that his marriage albeit arranged is genuine; that he lived with the primary visa applicant in India after the marriage (she moved into his parents’ house); and that it is their intention, after the primary visa applicant completes her MBA in Tasmania, to return to India and live together. The Tribunal notes that no evidence beyond the claims of the parties was provided that the parties lived together as a married couple in India.

28. The parties provided to the Tribunal a large number of documents, including a copy of their marriage certificate certifying that they married in Jalandhar, Punjab, on 11 August 2013. They provided photos of the wedding and affidavits from family members in support of the claim that the applicant is the spouse or de facto family member of the primary visa applicant. The Tribunal has assessed the parties’ claim against the definition of spouse under s.5F of the Act and in accordance with matters to be considered under r.1.15A of the Regulations.

29. The Tribunal accepts on the evidence provided that the applicants married. For the reasons discussed below, the Tribunal does not find that they were in a genuine spousal relationship at the time of the visa application.

30. Regarding the parties’ financial arrangements, no evidence was provided and no claim was made that they have any assets in common; or joint liabilities; or that they have shared day to day expenses. Evidence was provided in the form of statements from bank accounts that the secondary applicant deposited amounts from several hundred to several thousand dollars, irregularly, into an account in joint names which has been used by the primary visa applicant in Hobart. When asked why he deposited money into this account, the applicant stated that it was to pay for the primary visa applicant’s rent and tuition, because she is his wife. The Tribunal asked the applicant why, as a husband, he paid for accommodation for his wife where he was not allowed to stay. He did not respond to this question, other than to state that the primary visa applicant lived with other Indian women and was studying in Tasmania. The Tribunal accepts that money has changed hands.

31. Regarding the nature of the household, the parties acknowledged at hearing that they have not established a joint household. The primary visa applicant provided evidence that she booked and paid for, in her own name, a motel room in Hobart, for two nights, from 13 to15 March 2015.  The Tribunal does not accept that this shows that the parties cohabitated as a spousal couple.

32. No claim was made or evidence provided that the applicant and the primary visa applicant have functioned socially and are recognised and related to as a couple in Australia. The Tribunal accepts that members of the parties’ families in India have provided affidavits and statutory declarations declaring that they know them to have married, and that these family members support the restoration of the applicant’s and the primary visa applicant’s Student visas. The Tribunal notes that those who provided written declarations have not observed or socialised with the parties as a couple at any time during the last four years.

33. Regarding the nature of the parties’ commitment to the relationship and each other, the Tribunal put to the parties that it found it difficult to comprehend why, if they were in a genuine, committed spousal relationship as claimed, they would have not have lived together so as to provide companionship and emotional support to each other in Australia. While a requirement for family member applicants to live together is not set down in the legislation, the Tribunal put to the secondary applicant that this was surely the understanding and intention, indeed the point and purpose, of an accompanying family member Spouse/De facto secondary applicant visa. The parties responded by repeating identical explanations for their separate living arrangements that, as noted, appeared rehearsed.

34. The Tribunal accepts, from the evidence provided, the parties have communicated with each other via WhatsApp, but notes the evidence shows that the parties communicated regularly only after the applicant was questioned about his visa and relationship at Brisbane airport. The Tribunal does not accept the applicant’s claim, repeated in supporting witnesses’ written statements, that his failure to phone the primary visa applicant regularly before his interview with a border official demonstrates his thoughtfulness as a spouse, in that he was working a graveyard shift to support her and unwilling to distract her while she struggled with studies and family crises. These explanations are unconvincing.

1. The parties claim to have been married for over five years, but provided no documentary evidence that they have ever lived together, and acknowledged that they have lived separately for over four years in Australia. The applicant was vague when asked about his and the primary visa applicant’s long-term plans. The primary visa applicant claimed that when she completes her MBA she might start a business in India. She stated that she has not as yet given any thought as to the sort of business she might start. The Tribunal is not satisfied on the basis of the evidence provided that the applicant and the primary visa applicant have been in a spousal relationship for five years, or that they see the relationship as long-term.

2. Having considered the evidence and circumstances of the applicant and the primary visa applicant, the Tribunal is not satisfied that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that the relationship between them is genuine and continuing; and that they live together or do not live separately and apart on a permanent basis.

3. Therefore the Tribunal does not find that the applicant is the family member Spouse/De facto of the primary visa applicant, as claimed on the application form. The Tribunal further finds that the applicant provided incorrect information when the primary visa applicant declared on the application form that the information provided was correct in every detail.

4. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

5. 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).

6. 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 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.

7. The applicant maintained in his response of 11 July 2018 to the NOICC, that no incorrect answers were given in the application; that he was the Spouse or De facto partner of the primary visa applicant. He advised that ‘ours is an Indian arranged marriage wherein the parties to the marriage generally don’t have any prior relationship’. He claimed the parties lived together in India, in his parents’ house, following the marriage. As noted, no evidence beyond the parties’ claims was provided of such cohabitation. The applicant claimed that while they lived separately for an extended period in Australia, he and the primary visa applicant were nevertheless ‘mutually committed to a shared life as a married couple to the exclusion of all others’. He argued in a written submission that in determining whether a there is a married relationship for the purpose of a Student visa, the Minister ‘can consider any of the 15 circumstances in reg. 1.15A(3) as oppose to all of the 15 circumstances that minister is required to consider for Partner visas’. He claimed that ‘(the primary visa applicant) and I see our relationship long-term one we have already been married close to 5 years and wish to live and die together’.

8. In his NOICC response signed on 11 July 2018 the applicant further claimed that he did not provide incorrect information in his Genuine Temporary Entry (GTE) statement at the time of application. He argued that when he stated ‘I wish to learn new agricultural techniques to increase the productivity by working in Banana, Mango and Cane farms in the North Queensland and emulate the techniques learnt here, and it will enhance my existing farming skills’, he harboured ‘the wish to work in North Queensland to learn the Agricultural techniques to emulate in my agricultural business on my return to India’, even though he was not sure whether ‘my wish will ever be full-filled’. At hearing however, the applicant and the primary visa applicant stated that this GTE statement was a fabrication, written by their agent in India without their knowledge, and that the applicant never had any such intention.

9. The applicant in his response signed on 11 July 2018 to the NOICC further claimed that the primary visa applicant was in the process of enrolling in ‘a suitable place’ in Brisbane in order to complete her MBA in the city where he lived. He advised that she was lawfully able to transfer from her provider in Tasmania from September 2018. At hearing, however, the applicant confirmed that the primary visa applicant had not in fact transferred to a Brisbane course provider, and that the parties had not moved in together even after her enrolment and visa were cancelled. 

10. The Tribunal has found the parties were not in a genuine spousal relationship at the time of application. The correct information therefore was that the applicant was not the Spouse/De facto partner of the primary applicant. The decision to grant the visa to the applicant was based on incorrect information, when incorrect information was provided in the application form. The circumstances of the visa holder at the time of decision is that both he and the primary visa applicant remain living separately, in Brisbane and Hobart, on Bridging visas, without work or study rights, and without means of support apart from family members.

11. There is no information before the Tribunal to indicate that the applicant has not complied with other conditions of his visas. 

12. Over two years have elapsed since the applicant provided the incorrect information in the Student (Subclass 500) visa application. The circumstances in which the non-compliance occurred were when the primary visa applicant’s application form was filled in and lodged. The applicant has cooperated with the Department insofar as he responded to the NOICC, claiming that the information was in fact correct.

13. There is no information before the Tribunal regarding non-compliance by the applicant with other visa conditions, and there is no information before the Tribunal to indicate that the applicant has otherwise breached Australian law including migration law. No claim was made by the applicant that he has made a contribution to the community.

14. Regarding the prescribed circumstances, the Tribunal places significant weight on the incorrect information being given to the Department. The Tribunal places little weight on the fact that the applicant has cooperated with the Department, and the fact that it is unaware, on the information and evidence before it, of any other non-compliance.

15. While the above are factors that 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.

16. While cancellation would result in the applicant becoming unlawful and subject to detention, there is no information before the Tribunal to indicate that he would not be able to apply for and be granted another Bridging E visa while organising his departure. The applicant may be subject to s.48 of the Act preventing him from applying for further visas while in Australia, and he may also be affected by Public Interest Criterion 4013 limiting the granting of a further temporary visa for a specified period. The Tribunal considers that these are the intended consequences in such a case.

17. There would be no consequential cancellations. As noted, the primary visa applicant’s visa was separately cancelled.

18. The applicant claimed, in terms of hardship, that the parties will feel as if they have wasted their time in Australia if the primary visa applicant has to return home without an MBA. The Tribunal notes that the primary visa applicant has struggled with study at this level; that her study history suggests she may not have the ability or commitment to obtain this qualification; and that no evidence was provided that she has any employment prospects or plans that rely on the qualification. The Tribunal notes in any event that it does not find that the parties were at the time of application or decision in a genuine spousal relationship.

19. There is no information before the Tribunal and the applicant did not claim that any international obligations would be breached as a result of the cancellation. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

20. The above factors do not weigh in favour of the applicant.

21. 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. The Tribunal further considers the reasons to cancel the visa outweigh the reasons not to cancel. Having had regard to the relevant circumstances, the Tribunal has concluded that the visa should be cancelled.

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Adrienne Millbank
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)      purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)      giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.