Wang (Migration)

[2023] AATA 4200

Wang (Migration) [2023] AATA 4200 (10 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiazhi Wang

REPRESENTATIVE:  Mr Jiang Liu

CASE NUMBER:  2311369

HOME AFFAIRS REFERENCE(S):          BCC2023/2603819

MEMBER:R. Skaros

DATE:10 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 10 November 2023 at 4:29pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – bogus document – member of the family unit – IELTS test report – English language requirement – academic and artistic achievements – incorrect information not relevant to the secondary criteria – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140
Migration Regulations 1994, Schedule 2, cl 187.311; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is a 19-year-old citizen of China. He arrived in Australia when he was 12 years of age as a dependent on his mother’s Subclass 187 visa. On 2 August 2021 he was granted a Subclass 155 visa. The delegate cancelled the applicant’s Subclass 155 visa on the basis that there had been non-compliance with s 101(b) of the Act in relation to the previously held Subclass 187 visa.

3. The applicant appeared before the Tribunal on 24 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, Ms Bin Wang, and his father, Mr Yuyong Wang. It also received evidence from his grandmother, Ms Meiyu Xin, and a family friend, Ms Xiamei Speets. The hearing was conducted in combination with the related review matters lodged by the applicant’s parents: AAT file numbers 2306161 and 2311368.

4. The applicant was represented in relation to the review. The representative attended the hearing.

5. The Department’s file contains a non-disclosure certificate issued under s 375A of the Act in respect of various documents. The certificate provides that disclosure of the information contained in the specified document would be contrary to public interest because it would disclose, or enable a person to ascertain, the existence or identity of, a confidential source of information, and disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

6. Having considered the reasons for the non-disclosure and nature of the documents covered by the certificate, the Tribunal formed the view that the certificate provides a valid public interest reason for non-disclosure of the material. The Tribunal notes, however, that the information covered by the certificate, in as far as it relates to the issues in the review, has been disclosed to the applicant in the Notice of Intention to Consider Cancellation (the s 107 notice), to which the applicant had an opportunity to comment. The Tribunal discussed the nature of the relevant information covered by the certificate with the representative at the hearing. The representative indicated that they have no issue with the validity of the certificate.

7. 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

8. 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.

9. 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.

10. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

11. 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?

12. 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:

13. On 25 September 2015 an application for the Subclass 187 visas was lodged with the Department in which the applicant was included as member of the family unit (child) of his mother, Ms Bin Wang. On the visa application form, it was indicated that Ms Bin Wang had undertaken an English language test within the last 36 months and details of that test were provided. It was indicated that the applicant undertook an IELTS test on 14 December 2013 in which she achieved Competent English.

14. In support of the visa application, a copy of an IELTS Test Report Form purportedly issued to the applicant’s mother “Bin Wang”, dated 14 December 2013, was provided.

15. Based on the above information, as well as meeting other relevant criteria, the applicant’s mother (Ms Bin Wang) was granted the Subclass 187 visa. The applicant, as a member of the family unit of Ms Wang (who held a Subclass 187 visa granted on the basis of satisfying the primary criteria) and made a combined application with her, satisfied cl 187.311 and was granted the Subclass 187 visas on 3 August 2016.

    Subsequent information received by the Department

16. As part of the process for the Subclass 187 visa application, the applicant’s mother (Ms Bin Wang) underwent a health assessment on 8 October 2015 and a photo was taken of her for identification purposes. During the visa application process, a discrepancy between the photo on the IELTS test report and the photo taken at the health assessment was identified by a delegate of the Department.

17. Departmental records indicate that Ms Bin Wang was informed of the above discrepancy in an invitation to comment on adverse information for the Subclass 187 visa application. Submissions and supporting documents were provided to the Department in response to this adverse information on 13 May 2016. It was submitted that Ms Bin Wang had a double eyelid operation, opened canthus and botox injection surgery on 29 September 2015 which was within the 15-day recovery period of when she took the photo for the health assessment, on 8 October 2015. It was claimed that the post-effect of this facial surgery affected her normal facial appearance. It was also claimed that Ms Bin Wang took nutritional supplements and adjusted her diet during the time she took the IELTS test in December 2013, making her face look fuller and different from the photo taken in October 2015 for the health assessment. The Department considered the submissions and supporting evidence and on 3 August 2016 decided to grant the Subclass 187 visas to Ms Bin Wang and all members of the family unit included in the application, which included the applicant.

18. On 5 December 2019 a forensic facial image examination was undertaken by a Forensic Facial Image Examiner of the Department. The examiner forensically compared the photo taken on 8 October 2015 for the health assessment and the photo on the IELTS test report for the test dated 14 December 2013. The examination report concluded that the persons in the two photos are not the same person.

19. In relying on the outcome of the facial image examination, the delegate formed the view that the person who undertook the IELTS test in China was not Ms Bin Wang. The delegate considered that the applicant (as a secondary applicant for the visa) had provided incorrect information in the application for a Subclass 187 visa about Ms Bin Wang having undertaken an IELTS test in the preceding 36 months in China and achieving ‘Competent’ English. The delegate also relied on recent admissions made by Ms Bin Wang to the Department (in response to the s 107 notice issued to her in respect of her visa cancellation) indicating that she had not sat the IELTS test and conceding that the IELTS test report was a bogus document.

20. Based on the above, the delegate considered that the applicant had not complied with s 101(b) of the Act.    

    Response to the s 107 notice

21. The applicant responded to the s 107 notice by way of written submission from his representative. Supporting documents were also provided, though they related to the exercise of the discretion and the Tribunal has had regard to that evidence further below.

22. It was submitted that the applicant was, at all material times, a secondary applicant for the Subclass 187 visa and was not involved in the provision of any incorrect information in that application. It was submitted that all the documents provided in support of the applicant’s eligibility for the visa were genuine and, at the time of the Subclass 187 visa application, the applicant was 11 years of age and had no direct knowledge or involvement in the provision of information or documents with the visa application.

23. The Tribunal accepts that the applicant was 11 years old at the time of the visa application and that he would not have been involved in completing the application form or providing documents. These factors have been considered further below. However, for the purposes of determining whether there has been non-compliance as described in the s 107 notice, the Tribunal notes that s 100 of the Act provides that 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 it was incorrect. The effect of this provision is that any incorrect information provided on behalf of the applicant, notwithstanding he was a secondary applicant for the visa and had no knowledge of the information, is attributed to the applicant.

24. In this case, the applicant was included as a member of the family unit of Ms Bin Wang. The evidence before the Tribunal, including an admission from Ms Bin Wang, is that she had not sat an IELTS test in the 36 months preceding the visa application and had not received ‘Competent’ English as indicated on the form and the IELTS test report. It follows that incorrect information has been provided in the visa application.

25. 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?

26. 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).

27. 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. The Tribunal has considered each of the circumstances as follows:

    The correct information

28. The correct information is that the primary visa applicant (Ms Bin Wang) did not sit the IELTS test on 14 December 2013 and that she did not achieve a ‘Competent’ level of English as claimed in the Subclass 187 visa application form. The Tribunal considers that if the correct information was known to the Department, Ms Bin Wang would not have been granted the visa and nor would the visa have been granted to the applicant as a member of her family unit. Accordingly, this consideration weighs in favour of cancellation.

    The content of the genuine document (if any)

29. The Tribunal notes that the s 107 notice did not specify that there was non-compliance with s 103 (provision of bogus documents). Accordingly, the Tribunal does not consider this circumstance to be relevant to the exercise of the discretion given no findings have been made about the provision of a bogus document in the grounds for cancellation. Accordingly, this consideration is not relevant.

    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

30. The applicant applied for the Subclass 187 visa as a member of the family unit (the child) of Ms Bin Wang. To be granted that visa, the applicant had to satisfy the secondary criteria, which included that he is a member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria: cl 187.311. The Tribunal considers that the decision to grant the visa to the applicant was based on him being a member of the family unit of Ms Bin Wang who, at the relevant time, held a Subclass 187 visa.

31. While the incorrect information about the IELTS test and English language proficiency was relied upon by the delegate to grant the primary applicant (Ms Bin Wang) the Subclass 187 visa, it was not relevant to any of the secondary criteria that had to be satisfied by the applicant. The Tribunal does not consider the decision to grant the applicant the visa (as a secondary applicant) was based on the incorrect information about Ms Bin Wang’s English language proficiency. Accordingly, this consideration weighs against cancellation.

    The circumstances in which the non-compliance occurred

32. The non-compliance occurred when the incorrect information was provided in the Subclass 187 visa application which was lodged on 25 September 2015. The Tribunal accepts that the applicant was 11 years of age at the time and did not have any knowledge of or involvement in the provision of the incorrect information. Accordingly, this consideration weighs against cancellation.

    The present circumstances of the applicant

33. In respect of the applicant’s present circumstances, the Tribunal has had regard to the applicant’s written statement, photographs of him with his school and university friends, photographs of his musical performances, his academic and musical achievements and awards, letters of support and his oral evidence at the hearing.

34. The evidence before the Tribunal indicates that the applicant travelled to Australia with his parents when he was 12 years old. He completed high school in Australia and is now studying at Queensland University of Technology. Except for two short visits to China, he has been residing in Australia with his parents, younger sister and grandmother.

35. The applicant gave evidence that he attended Rochedale High School, where he actively participated in the school orchestra, clubs and volunteer activities. He participated in the Queensland Chinese speaking competition and was awarded a trophy for second place. In senior high school, the applicant transferred to Redeemer Lutheran College where he studied until completing year 12. At Redeemer, he was the guitarist of two major bands. He also joined the choir of the school church which gathered every Friday. He was a member of three choirs at school, The Fellas, Redeemer Chorale and Senior Singers. In October 2021, the Senior Singers were awarded platinum result at Misicfest. In December 2021, he performed at the Saint John’s Anglican Cathedral. In May 2022, Senior Singers participated in the Queensland Section 21 secondary choir advanced. During this competition, he performed a solo and achieved the highest mark. The Senior Singers achieved the Gold Award. In August 2022, the applicant attended Queensland music festival as a college stage band member, during which the band achieved the Platinum Award. He was also awarded a trophy for his solo jazz performance.

36. The applicant is a member of the music band at the church he attends every Sunday. He has a YouTube account to which he uploads his music works. The applicant said he also has an interest in photography and arts. His artworks have been displayed at the school’s art gallery. In August 2022, his Year 12 artwork was chosen by Artwave to be displayed at the Logan Art Gallery.

37. The applicant has actively participated in various activities, including as a member of the Cultural and Traditions Committee, assisting with school fundraising activities and organising students to sell self-made arts, crafts and candy, the proceeds of which went to charities. In September 2021, he received the Academic Improvement Award. In November 2022, he received the early offer of Bachelor of Fine Arts (Music) from Queensland University of Technology. The applicant gave evidence that he has done well at university and has been offered a double degree in Film and Music. He said he is very passionate about film and music, including digital sound, and hopes to have his own studio. He has dreams of being part of the digital music team that will be selected for the Brisbane Olympic games in 2032.

38. When asked if he could pursue his passion for music and film if he had to return to China, the applicant appeared visibly upset. He said Australia is his home, it is where he has grown up, spent his teenage years, developed close friendships, and achieved so much. He said he left China when he was very young and that it would be very difficult for him to adjust and pursue his music/film studies. He said he can speak Mandarin but would struggle to study an equivalent course at university level in China. He said he loves Australia as it has given him so much and he wants to give so much back. If he has to return to China, he would have to give up everything he has come to know and love: his study, his music, his friendships, the church worship band, his faith, and his future dreams.

39. The applicant said that he and his sister are innocent victims of what has occurred. They love Australia, they have plans for a future in Australia and consider Australia their home. He said he was shocked when he found out from his mother (Ms Bin Wang) that his visa could be cancelled. He said his mother’s past mistake had put the whole family’s future at risk. While he now understands everything, he is still in shock that this could affect him because he and his sister are innocent. He planned to apply for citizenship last year, but his mum encouraged him to focus on his studies, so he delayed submitting the application until after he graduates from high school.

40. The Tribunal also had regard to the representative’s submission that the applicant has spent his formative years in Australia, that his parents are proud of his achievements and that the applicant has excelled academically and musically. It was submitted that as a university student the applicant has integrated much like any other ordinary Australian and would suffer hardship if his visa is cancelled.

41. The Tribunal has also had regard to the evidence of the applicant’s parents, his grandmother and Ms Spreets, indicating that the applicant and his family have integrated into Australia, have worked hard to establish themselves and that it would be devastating for the applicant, and his family, if their visas are cancelled and they had to return to China.

1. Having carefully considered the evidence, the Tribunal accepts that the applicant has spent a substantial part of his formative teenage years in Australia, where he has grown up and integrated into every aspect of its lifestyle. In addition to completing high school, the applicant appears to have become an integral member of his school, university, and church community, particularly through his involvement in music and participation in local events. He has established strong social, emotional, educational, religious and community ties to Australia. The Tribunal accepts that the applicant has assimilated into the Australian culture, considers Australia his home and has a strong desire to make a positive contribution to the community.

2. The Tribunal considers that if the applicant’s visa is cancelled this would likely cause him significant emotional and psychological hardship and would be devastating for his future aspiration to contribute to the community he was raised in through his musical talent. This consideration weighs strongly against cancellation.

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

3. There is no information before the Tribunal which raises any concerns about the subsequent behaviour of the applicant. The applicant’s evidence, which the Tribunal accepts, is that he only came to know of the non-compliance after his mother informed him.

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

4. There is no evidence before the Tribunal which suggests that there are any other instances of non-compliance.

   The time that has elapsed since the non-compliance

5. The non-compliance occurred in September 2015, which is a period of just over eight years. At the time of the non-compliance the applicant was 11 years old. He is now 19 years old. The Tribunal considers this to be a long time. This consideration weighs against cancellation.

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

6. There is no information before the Tribunal which indicates that there have been any breaches of the law since the non-compliance.

   Any contribution made by the holder to the community

7. Through his passion for music, the applicant has been able to connect and contribute to his local community. He has also shared his talent through performances at school, university, church and at local events. The Tribunal accepts that he has also contributed through his involvement in fundraising and charity events. This consideration weighs against cancellation.

   Policy considerations

8. 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. The Tribunal has had regard to these considerations as follows:

   Whether there would be consequential cancellations under s 140

9. Cancellation of the applicant’s visa would not result in the consequential cancellation of any other person under s 140. The Tribunal notes the Subclass 155 visas held by the applicant’s parents were cancelled separately under s 109 of the Act. His younger sister still holds a permanent residence 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.

10. The child whose interests would be affected by the cancellation is the applicant’s sister who is seven years old and is an Australian permanent resident. If the applicant’s visa is cancelled and he has to return to China, it is likely that the whole family, including the applicant’s parents, sister and grandmother will all return to China.

11. In relation to his sister, the applicant gave evidence that she is an innocent victim of what occurred and that it would be devastating for her if she had to return to China because she has spent all her life in Australia. The Tribunal has also had regard to the evidence given by Ms Bin Wang about the adverse consequences of cancellation on her daughter, including the hardship and cultural and academic difficulties she is likely to experience if she has to return to China. Ms Bin Wang gave evidence about her daughter’s progress at school, her involvement in extra-curricular activities, including music and gymnastics, in which she excels, and the close friendships she has developed.

12. The Tribunal accepts that the applicant’s sister may potentially face several difficulties if she had to return to China, including disruption to her education, language barrier, given her lack of proficiency in Mandarin, particularly in reading and writing, social adjustment, lifestyle adjustment and emotional stress.

13. The Tribunal considers that the applicant’s sister is quite young and, with support of the applicant and her parents, would be able to overcome these difficulties following a period of adjustment. Nevertheless, when considering what decision would or would not be in the best interest of the applicant’s sister, the Tribunal accepts on the totality of the evidence before it, that his sister’s interests are best served if the applicant’s visa is not cancelled. Accordingly, this consideration weighs against cancellation.

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

14. The applicant has not claimed that the cancellation would lead to his removal from Australia in breach of Australia’s non-refoulment obligations. As to family unity obligations, the evidence before the Tribunal suggests that if the applicant’s visa is cancelled, his parents, younger sister and grandmother would all return to China together. Cancellation of the applicant’s visa would therefore not result in the family being separated. This consideration weighs minimally against cancellation.

    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

15. In considering the mandatory legal consequences of cancellation, the Tribunal notes the applicant will only become an unlawful non-citizen and liable for detention and removal if he does not depart Australia within the validity of any bridging visa he currently holds or if he is not granted another visa to remain in Australia. If the visa is cancelled, the applicant will be affected by s 48 of the Act, which limits the types of visas he can apply for onshore. The applicant may also be subject to an exclusion period of three years in relation to future temporary visa applications, such as a student visa. This would therefore affect the applicant’s ability to return to Australia on a student visa to complete his tertiary studies. The Tribunal considers the mandatory legal consequence of cancellation are those intended by the legislation, nevertheless, it accepts that the consequences in the circumstances of the applicant would be quite harsh. Accordingly, this consideration weighs moderately against cancellation.

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

16. As discussed above, the Tribunal accepts that cancellation of the applicant’s visa is likely to cause significant, emotional and psychological hardship to the applicant and his family members.

    Overall consideration  

17. The Tribunal has had regard to the evidence before it and weighed up all the relevant considerations. While the correct information about the applicant’s mother not having undertaken the English language test weighs in favour of cancelling the applicant’s visa, the Tribunal considers that the overwhelmingly weight of the considerations weigh against cancelation. The non-compliance occurred when the applicant was just 11 years old, and the Tribunal has accepted that the application had no knowledge or involvement in the provision of the incorrect information. The applicant travelled to Australia when he was 12 years old, he has integrated into the community and has established strong educational, social and emotional connections to Australia. The present circumstances of the applicant, who is now 19 years of age and has spent his formative years in Australia, and the hardship he would experience if his visa were cancelled, weigh against visa cancellation. The mandatory consequences of the cancellation may also result in the applicant being denied a temporary visa, such as a student visa, as he will be subject to a three-year exclusion period, meaning he would be unable to return to Australia to enable him to complete his degree. The Tribunal considers the totality of the circumstances against cancellation of the visa outweigh those in favour of cancellation.

    Conclusion

18. 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

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

    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.

    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.

    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.