So (Migration)

[2023] AATA 2609

So (Migration) [2023] AATA 2609 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Pak Ting So
Mr Renhao Liu

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2213231

HOME AFFAIRS REFERENCE(S):          BCC2019/3330375

MEMBER:R. Skaros

DATE:31 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 31 July 2023 at 7:06pm

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) visa – Subclass 189 Skilled – Independent – Federal Circuit and Family Court remittal – bogus documents – altered bank statements and telephone bills – genuine romantic relationship – allegations against a former migration agent – qualifying for the visa without the documents – impact on the applicant’s business – emotional and financial hardship – decision under review set aside         

LEGISLATION

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

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that there has been non-compliance with s 103 of Act. 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. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal (differently constituted) on 4 January 2022 to give evidence and present arguments. On 6 January 2022, the previous Tribunal affirmed the delegate’s decision to cancel the applicant’s Subclass 189 visa.  The applicant applied to the Federal Circuit and Family Court of Australia (FCAFCOA) for judicial review of that decision and on 2 September 2022 the matter was remitted by consent to the Tribunal for reconsideration according to law.

5. The applicants appeared before the present Tribunal on 27 July 2023 to give evidence and present arguments.

6. The Tribunal has before it a copy of the Department’s file which includes a non-disclosure certificate issued under s 357A of the Act in respect of various documents, including a Document Examination Report, as well as copies of the documents examined. The certificate provides that disclosure of the specified documents would reveal lawful methods for preventing, detecting, and investigating breaches or evasions of the law, which would or would be likely to prejudice the effectiveness of those methods.

7. The applicants were represented in relation to the review. The representative attended the hearing.

8. At the hearing, the Tribunal informed the applicant about the certificate and the nature of the information covered by the certificate. The applicant was invited to comment on its validity. The representative submitted that they have no issue with the validity of the certificate and requested the Tribunal to disclose any relevant information to the applicant. The Tribunal is satisfied that the information covered by the certificate, in as far as it is relevant to the issues in the review, have been disclosed to the applicant.

9. In considering the validity of the certificates, the Tribunal is satisfied that the certificate issued under s 375A of the Act is valid as it provides a valid public interest reason for the non-disclosure of the specified documents. In any case, the Tribunal is satisfied that the relevant information contained in the affected documents has been disclosed to the applicant in the s 107 notice and the applicant had an opportunity to respond to the information. Furthermore, the information was set out in the delegate’s decision record, a copy of which was provided to the Tribunal with the application review.

10. 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

11. 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.

12. 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.

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

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

14. 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 103 of the Act.

15. The applicant applied for the skilled Subclass 189 visa on 12 May 2016. In that application Mr Renhao Liu was included as the applicant’s her de facto partner. It was indicated on the form that their de facto relationship commenced in November 2014. The applicant completed a declaration that she had read and understood the information in the application and that the information provided information was complete and correct.

16. As evidence of their relationship the following documents were provided with the visa application:

    ·18 Vodafone mobile phone bills purportedly sent to Renhao Liu at an address in issued between December 2014 to May 2016.

    ·Two St George Bank statements for an account in the name of Renhao Liu for periods from 19 September 2014 to 18 November 2014 and 19 November 2014 to 18 May 2015 which indicated the address at Berala NSW 2141.

17. Based on the above information, as well as meeting other relevant criteria, the applicant and Mr Liu were granted the skilled visas on 27 October 2016.

    Subsequent information received by the Department

18. The Department conducted verification checks of the above listed St George Bank issued statements and Vodafone telephone bills. A forensic examination undertaken by the Department’s document examination unit found that the residential addresses on the St George Bank statements and Vodafone telephone bills provided in with the visa application, did not match the residential address officially linked and registered to those documents.

19. On 30 June 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (s 107 notice) because the delegate considered that the applicant did not comply with s 103 of the Act.

    Response to the s 107 notice

20. In submissions to the Department by her former representative, it was contended that the applicant sought the assistance of a migration agent, Mr Kevin Chen, who informed her that she qualified for a Skilled visa and that her partner Mr Liu could be included in the application. The agent created an email address for the applicant for the purpose of the application, but she was never given the password. The agent requested bank records and mobile phone statements.

21. It was submitted that the applicant did not update their addresses on these documents, but the agent informed them there was no issue as they had been in a de facto relationship for over 12 months. It was submitted that the applicant paid the agent and was not aware of any fraud. When Mr Liu lodged the application to sponsor his mother, he received notice of the character issues. They attempted to contact Mr Chen, but he did not respond. It was submitted that the applicant had never seen the bogus documents until she received a copy of the file in September 2019, and she was shocked to see the alterations that had been made. It was submitted that the decision to grant the applicant the visa was not based on bogus documents and the decision to grant to Mr Liu the visa was only partly based on these documents.

22. Various supporting document pertaining to the applicant and Mr Liu’s circumstances in Australia were also provided. The Tribunal has had regard to these documents further below when considering whether the visa should be cancelled.

23. In her oral evidence, the applicant said she engaged the services of Mr Chen to assist her with the visa application. She said Mr Cheng advised her that she had sufficient points to qualify for the skilled visa. She said she did not provide any fraudulent information or documents. She gave the agent the documents in the original format. She said she realises now that it is her fault for not checking everything on the application. She feels ashamed of the mistake she has made, which has been a costly one for her and Mr Liu.

24. The applicant said she met Mr Liu in January 2016 via an online chat site after being introduced by Mr Chen. She said she is a very shy person and saw this as an opportunity to develop a relationship with someone and it could be a new chapter in her life. She said Mr Liu was her first love and they spent a lot of time together. She said at the time she was living in Berala in a property that was owned by her aunt and Mr Liu was living with his uncle in Parramatta. She gave evidence that she and Mr Liu commenced a relationship with each other on Valentine’s Day (14 February) in 2016. From this time, Mr Liu moved in with her. He used to stay with her at Berala about four to five nights a week. When he was not with her, he stayed at his uncle’s place in Parramatta.

25. The applicant said at the beginning of their relationship she and Mr Liu spent a lot of time together. They went to the movies, the beach, walked in the park and went on bike rides. She also met Mr Liu’s uncle (Charles) for the first time at Maroubra beach. Mr Liu’s uncle told her a lot of stories about Mr Liu childhood. She said she found out a lot about Mr Liu and felt that he ticked all the boxes as someone she wanted to have a relationship with. She believed she and Mr Liu were highly compatible and she saw a future with him, they even discussed having children and agreed that they both only wanted to have one child. She said they were both focused on their careers and wanted to first set themselves up financially.

26. The applicant gave evidence that Mr Liu used to do the cooking and that she was busy with her business, which at the time was in the set-up stage. When asked if she had told her parents about Mr Liu, the applicant said she had not because, according to her culture, she would only introduce him to her parents if they had decided to get married, which at the time they had not. The applicant gave evidence that they both started to get very busy, she was working long hours during the day and Mr Liu was working night shift and they started to grow apart. She said on her birthday, in March 2017, Mr Liu cooked a special soup for her. They separated not long after that.

27. The Tribunal also took evidence from Mr Liu and observed that his evidence about when he met the applicant, the development of their relationship, their living arrangements and social activities were largely consistent with the evidence given by the applicant.

28. The Tribunal remarked that the relationship between the applicant and Mr Liu did not appear to have all the features of a de facto relationship as defined in the migration regulations, for example the applicant and Mr Liu did not pool their financial resources, and while Mr Liu was staying with her for most of the week, they had not actually established a household together, and she had also not told her family about her relationship with him. The applicant said she believed, based on the advice given to her, that Mr Liu could be included in her application as her de facto. She said if they had registered their relationship prior to the application, this would have proved their relationship.  

29. Having carefully considered all the evidence before it, the Tribunal is not satisfied that the applicant and Mr Liu were in a de facto relationship with one another since November 2014 as claimed in the visa application. The Tribunal is prepared to accept that the applicant and Mr Liu had a romantic relationship from about February 2016, however, it does not accept that the relationship was a de facto one. The Tribunal has discussed this in greater detail further below when considering the circumstances of the non-compliance and whether the decision to grant a visa was based, wholly or partly, on a bogus document.

30. The applicant claims to have only provided genuine (unaltered documents) to her migration agent. The Tribunal accepts this was the case, however, as explained to the applicants at the hearing, s 103 requires that a non-citizen must not give, present, produce or provide to an officer, an authorised system or the Minister or a tribunal performing a function or purpose under the Act, a bogus document or cause such a document to be so given, presented, produced or provided. Accordingly, if it is found that a bogus document has been so provided, or caused to be provided, then the applicant will have failed to comply with the obligation in s 103 of the Act. It is not necessary for the Tribunal to establish that the applicant had any knowledge of, or that she was personally responsible for, the alteration of those documents

31. For the purpose of determining whether there was non-compliance with s 103 of the Act, as described in the s.107 notice, the Tribunal gives significant weight to the outcome of the document examination investigation which found that the postal addresses on the above listed documents had been intentionally altered.

32. The Tribunal finds that the documents (listed above) are bogus documents, as defined in s 5(1)(b) of the Act, as they have been altered by a person who did not have the requisite authority. The bogus documents were provided with the skilled visa application. Consequently, and the Tribunal finds, that the applicant has provided (or caused to be provided) to an officer, authorised system, or the Minister a bogus document in relation to her Subclass 189 visa application.

33. For the above reasons, the Tribunal finds that there was non-compliance with s 103 of the Act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

34. 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).

35. 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 and have been considered as follows.

    The correct information

36. The non-compliance in this case relates to the provision of bogus documents. The s.107 notice did not particularise information that was said to be incorrect. Accordingly, this consideration is not relevant.

    The content of the genuine document

37. The documents in issue (as listed above) are the St George Bank statements and Vodafone bills issued to Mr Liu. These documents were purportedly addressed to Mr Liu at Berala. Forensic examination of these documents found that the addresses officially linked to those documents had been altered.

38. The Tribunal has had regard to the applicant’s evidence that she gave the documents to the agent who lodged the application and that she was not aware that the addresses had been altered. Even if the Tribunal accepts that the applicant was not personally responsible for the alteration of the addresses on the documents, this does not change the fact that the genuine addresses on those documents were altered by someone who did not have authority.

39. The Tribunal considers that the addresses on the documents were intentionally altered for the purpose of demonstrating that Mr Liu was living with the applicant at the Berala address from 2014. The Tribunal considers the intentional unauthorised alterations made to the content of genuine documents to be significant and gives weight to this consideration in favour of cancelling the visa. 

    Whether the decision to grant a visa was based, wholly or partly, on a bogus document

40. the Tribunal accepts, as submitted on behalf of the applicant, that the grant of the Subclass 189 visa (to the applicant) was not based on the bogus documents because the applicant had sufficient points to qualify for Subclass 189 visa. This circumstance weighs against cancellation of the visa.

41. The Tribunal considers, however, that the decision to grant Mr Liu the visa was based on bogus documents. As noted above, Mr Liu applied for the skilled visa as a member of the family unit (de facto partner) of the applicant. To satisfy the definition of de facto partner, as provided for s. 5CB of the Act, Mr Liu would have had to demonstrate among other things that, he and the applicant lived together or did not live separately and apart on a permanent basis: s.5CB(2)(c).

42. In this case, the bogus documents were provided as evidence of the applicant and Mr Liu’s cohabitation since 2014 and the delegate would have relied on this information to be satisfied that Mr Liu met the secondary requirements for the grant of the visa, which included that he is a member of the family unit (de facto partner) of the applicant. The Tribunal finds that the decision to grant a visa (to Mr Liu) was based, partly, on a bogus document and gives weight to this consideration in favour of cancelling the visa.  

    The circumstances in which the non-compliance occurred

43. the non-compliance occurred when the visa application, which included bogus documents, was lodged. The Tribunal accepts that the applicants relied on their agent, whom they engaged and paid a fee, to lodge the visa application on their behalf. The Tribunal accepts that the applicant had no knowledge that the documents given to the agent had been altered. At the hearing the applicant expressed remorse for her failure to check the forms and the documents provided. She said since 2019, when she found out about the fraudulent documents, she felt ashamed that she had not taken more care and checked through the application.

44. As found above, the Tribunal accepts that the applicant and Mr Liu were in a romantic relationship at the time of application, however, it does not accept that they were in a de facto relationship since 2014 as claimed. The Tribunal considers that the circumstances of the non-compliance weight in favour of cancelling the visa.

    The present circumstances of the visa holder

45. The applicant arrived in Australia in December 2006, when she was 17 years of age, as the holder of a student visa. She studied a foundation English course in 2007. She completed a Bachelor of Commerce and Finance at the University of New South Wales (UNSW) and a Master of Accounting degree at the University of Technology Sydney (UTS). She gave evidence that she also completed a short marketing course at a college in Sydney. She worked in an accounting firm for a short period before starting her own business.

1. The applicant established a business in Australia with her business partner, who is an Australian citizen. She gave evidence that her partner would not be able to manage the business on her own. The applicant said she invested a lot of time and money in the business and stands to lose a lot if her visa is cancelled and she has to return to Hong Kong. The business has an office in Sydney CBD, they import products from Japan which are sold in Australia via online platforms and at a market stall. The Tribunal has had regard to the recent financial documents provided for the business. 

2. The applicant said that her business partner would be financially and emotionally affected if she could not remain in Australia, and that it would be difficult to find someone to replace her. The applicant has an aunt in Australia and some friends. The applicant said she has a dog, who has been her faithful companion for the last seven years. She attempted to rehome him in case she had to leave Australia, but he starved himself and she had to take him back and look after him.

3. The applicant’s parents and brother reside in Hong Kong. She said her parents supported her study in Australia and gave everything they had so she could have the best education and future. She said she feels that she has disappointed them and wished she had been more careful with her visa application. She regrets not taking full responsibility for her visa application. She feels ashamed, alone, and isolated because of the mistake she has made.

4. The applicant said she has never worked in Hong Kong and had doubts about her employment prospects. She said the situation in Hong Kong at this time was quite fragile. There are regular protests on the street, the political situation is unstable, and she is afraid to return there. She said her brother was assaulted on the street for no reason.

5. The Tribunal accepts that the applicant has lived in Australia for over 16 years, during which time she completed higher level education, worked, and established a business. The applicant also has family (her aunt) and friends in Australia. The Tribunal accepts that the applicant has established educational, social, employment and business ties in Australia and that she would experience significant emotional and financial hardship if her visa is cancelled, and she has to return to Hong Kong.

6. The Tribunal considers that the applicant’s present circumstances weigh strongly against cancellation of the visa.

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

7. There is no adverse information before the Tribunal regarding the applicant’s subsequent behaviour concerning 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

8. There is no information before the Tribunal which suggests that there were any other instances of non-compliance by the applicant that is known to the Minister.

   The time that has elapsed since the non-compliance

9. The non-compliance occurred when the bogus documents were provided in support of the visa application, which was lodged on 12 May 2016. The Tribunal accordingly finds that more than seven years have passed since the non-compliance. The Tribunal considers this to be a moderate period of time and gives this consideration some weight against cancellation of the visa

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

10. In 2018, the applicant was sentenced for driving whilst suspended. The applicant gave evidence that she stopped in a no stopping zone and was asked by police to provide her licence. When they checked the licence, they informed her that it had been suspended. The applicant said she did not receive any communication about the suspension of her licence and believes it was after she was fined for using a mobile phone while driving. The applicant said she has since completed a road safety course and has not had any issues with her driving since then. She said she now regularly checks her driving record, and she has no demerit points. The Tribunal considers the applicant’s breach of traffic laws, which occurred more than five years ago, to be of relatively low on the scale of seriousness. The Tribunal gives this consideration limited weight in favour of cancelling the visa.

    Any contribution made by the holder to the community

11. The Tribunal accepts on the evidence before it that the applicant has contributed to the community through her business, charitable donations, and assistance she has provided others during the pandemic. It gives this consideration some weight against cancellation of the visa

    Other considerations

12. While the above 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.

    Whether there would be consequential cancellations under s 140.

13. If the Applicant’s visa is cancelled, then Mr Liu’s will be consequentially cancelled. The Tribunal gives some weight, albeit limited, to this consideration against cancellation of the visa.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

14. Neither the applicant nor Mr Liu have indicated that any children will be affected by this decision.

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

15. The applicant has indicated that she fears returning to Hong Kong because the political situation there is unstable, she may not be able to find gainful employment and she is concern about her safety generally.

16. While the Tribunal accepts the applicant’s evidence regarding the current situation in Hong Kong, it does not consider any of the concerns raised by her about returning to Hong Kong raise protection obligations such that Australia would be in breach of its international non-refoulment obligations if the applicant were removed.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

17. In considering the mandatory legal consequences of cancellation, the Tribunal notes the applicants will only become an unlawful non-citizen and liable for detention and removal if they do not depart Australia within the validity period of any bridging visa they currently hold or if they are not granted another visa to remain in Australia. The Tribunal acknowledges that if the visa is cancelled the applicants will be affected by s 48 of the Act, which (without the Minister’s intervention) limits the types of visas they can apply for onshore. The applicants may also be subject to an exclusion period in relation to future visa applications. The Tribunal also acknowledges that Mr Liu has sponsored his mother for a parent visa, and if the visa is cancelled, the parent visa application will likely be refused.

18. The Tribunal considers the mandatory legal consequences are intended by the legislation and gives this consideration limited weight against cancellation of the visa

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

19. The Tribunal has had regard to the written and oral evidence regarding the applicant’s business in Australia. It accepts that if the applicant is unable to remain in Australia, this is likely to cause significant emotional and financial hardship given the many years she and her business partner have invested in establishing and growing the business.

20. The applicant gave evidence that her parents invested everything they had so she can get a good education and have a better future in Australia. She established herself in Australia, where she has studied, worked, and lived for more than half her life. She said she had plans to buy a property and settle in Australia.

21. In his evidence, Mr Liu indicated that he has an aunt and uncle in Australia. He came to Australia in 2008, when he was about 18 years of age, and completed a Diploma of Business course. He worked part time at a restaurant, but he retrained to work as a real estate agent. He said his employment prospects in China were not good given the current state of the property market which saw two of the largest developers collapse. He said many Chinese nationals preferred to invest in property in Australia, where it is more stable, rather than in China and that he has been able to contribute to Australia through his employment.

22. In considering the evidence overall, including the length of time the applicants have resided in Australia, the connections they have established, their employment and the difficulties they would experience if they had to return to their respective countries of residence, the Tribunal accepts that if the visa is cancelled that the applicant and Mr Liu would experience significant emotional and financial hardship. The Tribunal gives weight to this consideration against cancellation.

    Overall consideration

23. The Tribunal has carefully considered all the evidence before it and weighed up all the relevant circumstances. While the Tribunal has some concerns about the nature of the applicant and Mr Liu’s relationship, given they were introduced to each other by the same agent that appears to have been responsible for the provision of the bogus documents, the Tribunal nevertheless considered their evidence regarding the history of their relationship to be consistent. They did not seek to exaggerate the nature of their relationship and conceded that it was more of a boyfriend/girlfriend relationship. They have maintained contact with each other. There is no evidence before the Tribunal which suggests that the applicant has obtained any financial (or other) advantage by including Mr Liu as her de facto partner. Based on her age, qualifications, English language skills and experience, the applicant satisfied the primary requirements for the grant of the Subclass 189 visa. She has lived in Australia since she was 17 years of age, has completed two higher level qualifications and has established a successful business in Australia. The Applicant’s and Mr Liu’s ties to Australia are very strong and the Tribunal has found that they would experience significant hardship if the applicant’s visa is cancelled.

24. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa.

26. The Tribunal has no jurisdiction with respect to the other applicant.

    R. Skaros
    Senior Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    103Bogus 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).

    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.