Waters (Migration)

[2018] AATA 178

Waters (Migration) [2018] AATA 178 (29 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cornelius John Waters

CASE NUMBER:  1606054

DIBP REFERENCE(S):  BCC2015/3787680

MEMBERS:Jan Redfern (Presiding)

Hugh Sanderson

DATE:29 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 January 2018 at 5:13pm

CATCHWORDS
Migration – Subclass 186 (Employer Nomination Scheme (Permanent)) visa – cancellation under s.109 of the Migration Act 1958 – cancellation of visa following audit and sponsorship bar of the nominating employer – whether incorrect information or bogus document provided – where information related to description of duties in the relevant period – where alleged bogus document consisted of letter from the applicant’s employer – consideration of ANZCO occupation definition – where deterioration in economic conditions led to a change in applicant’s employment – finding that information not incorrect and document not bogus – non-compliance not established – power to cancel applicant’s visa does not arise – cancellation set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109

CASES
Zhao v MIMA [2000] FCA 1235
Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the delegate found the applicant had provided false information and bogus documents in support of his visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

Background

1. The applicant is a citizen of Ireland and is currently 34 years old. He was granted a subclass 457 visa on 7 February 2011 on the basis of his employment as a ‘Contract Administrator’. He was sponsored in that application by Murphy Pipe and Civil Constructions Pty Ltd (Murphy Pipe and Civil).

2. The applicant applied for a subclass 186 Employer Nomination Scheme visa on 25 March 2013. He was nominated for that visa by Murphy Pipe and Civil. In that application, he claimed that from 2 February 2009 he had been employed by Murphy Pipe and Civil in the position of a Contract Administrator. A letter from Murphy Pipe and Civil was provided stating that the applicant was employed as a Contract Administrator providing details of his duties and responsibilities. The applicant was granted the subclass 186 visa on 15 October 2013.

3. The Department of Immigration and Border Protection (the Department) conducted an audit of Murphy Pipe and Civil. As a result of this audit, the Department considered that the applicant had provided false and misleading information and bogus documents to the Department in support of his application for his subclass 186 Employer Nomination Scheme visa. The delegate wrote to the applicant on 11 January 2016 with a Notification of Intention to Consider Cancellation under s.109 of the Act.

4. The applicant responded on 8 February 2016 claiming that he had not provided false and misleading information or bogus documents to the Department. He provided statements from various co-workers setting out the work he had participated in. He stated, among other things, that he was well settled in Australia and wished to become an Australian citizen.

5. The delegate who considered the application, noted the following information which was considered would give reason for the cancellation of the applicant’s visa:

   (1)The position of Contract Administrator in ANZSCO is described as undertaking administrative tasks associated with the company’s contracts, however, the applicant described his work is looking after a crew and performing an operational role;

   (2)The documents obtained from the Murphy Pipe and Civil audit described the applicant as an ‘operator’ or ‘mobile plant operator’;

   (3)The applicant’s curriculum vitae did not reflect that the applicant was working as a Contract Administrator because it recorded that he was working on site; and

   (4)The applicant was not working in his nominated position of Contract Administrator for the duration of the subclass 457 visa, as stated in his application.

6. Taking these factors into account, the delegate found that the applicant had not been employed as a Contract Administrator with Murphy Pipe and Civil in the relevant period and had provided false and misleading information in his application as well as a bogus document, being the references from Murphy Pipe and Civil. When considering whether to cancel the applicant’s visa, the delegate concluded that the reasons to cancel the visa out-weighed the reasons not to and issued a decision cancelling the applicant’s visa.

Information provided to the Tribunal

1. The applicant appeared before the Tribunal on 24 August 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

2. The applicant gave details of his work history. He said that when he left school he started working with his father’s business Eamon Waters Contractors. He said that he started off as a labourer but after two or three years was in charge of various projects. He quoted for jobs, and was involved in completing the work and ensuring that it was finished correctly. He said that he was involved in preparing paperwork as well as helping in the manual labour if required. He said that the business had between 15 to 20 people from 2005 to 2006 and he was involved in coordinating staff. He said that 50 per cent of the time he spent in the office attending to administrative work.

3. The applicant said that when he arrived in Australia he obtained work with Pipe and Civil (later to become Murphy Pipe and Civil). He said that his initial work was as a plant operator working with a crew of about 9 to 10 people. He said that he was under the supervision of a leading hand. He was in that position for a couple of months.

4. The applicant said that he then was on the Cardinia project as a project administrator. He said that initially he was looking after quality assurance and preparing the necessary paperwork to confirm the work had been done correctly. The applicant said that he was coordinating a team working on the site. He said that this would involve ordering the material so that it would be available when required, reporting on the progress of the work on a weekly basis and reporting daily when required to the administrative team. He coordinated the provision of the backfill material as well as topside remedial work. He said that he was working in an office and on the phone most of the time or supervising on-site. He would have regular meetings with the surveyors to confirm the progress of the project as well as with the construction manager, superintendent and safety person. He was doing this for about 6 to 8 months.

5. The applicant said that the work he did on the Sino Iron Ore project was initially being in charge with on-site production of material. He said that he was required to coordinate and supervise staff. He was required to liaise with surveyors to confirm the sites of the on-site production of material as well as the coordination of the material to be trucked to the necessary site. He said that he was in contact with the backfill supervisor a couple of times each day. He had a crew of between five and six people which included excavators, loaders and dumpsters. He said the only time that he operated any of the machines was if he needed to show somebody how to use it properly. He said that he did this very infrequently. He said that he spent most of his time in an on-site office.

6. The applicant said that he was required to do administrative tasks, such as the pre-start meetings, Job Hazard Analysis, ensure all workers had necessary tickets and certificates of competency and liaise with other teams to make sure the actions of all the teams were coordinated. He had dealings with other contractors for the supply of equipment which were not owned by the company. He prepared daily reports and was required to monitor the work to ensure the production and supply requirements were met.

7. The applicant then worked for six or seven months to about May 2012 at the Striker Clough Joint Project. He was required to look after production targets for the laying of a pipeline. He would coordinate the members of his crew which totalled about four or five people. He said that this included two trenchers, one driver and labourers to lay the peg line. He was in contact regularly with the surveyors to ensure the progress of the project as well as dealing with all other administrative work for his crew.

8. The applicant gave details of his work in Queensland up to November 2013 as a supervisor of a crew. The applicant said that after this time there was a massive downturn in the work available and he ended up being placed by the company in a demoted position driving a machine. He said that this was because there were no other projects available for him to be in a position of a project administrator. He said that after Christmas 2014 he was made redundant. He said the medical examination and the documents produced at that time were for his role as a plant operator after his demotion due to the lack of projects.

9. The applicant provided letters of support from former colleagues. A letter from Larry Herevin dated 16 April 2016 recorded that he worked with the applicant on a large civil engineering project from 2012 to 2013 in Queensland. He stated that the applicant’s role in the project was to ensure pipeline installations were completed in accordance with the drawings and specifications. The applicant was also involved in further installation works after the pipeline was completed and oversaw safety and environmental requirements for the work. The applicant provided a letter from Catherine Hughes dated 25 February 2016, who was a training coordinator at Murphy Pipe and Civil. Ms Hughes stated that she worked closely with the applicant as training coordinator in 2013. The applicant was responsible for ensuring that members of his crew observed safety regulations. The applicant provided a letter from Enda Meagher dated 15 April 2015. Mr Meagher worked on two major projects with the applicant in Western Australia and Queensland. He stated that the applicant’s role included overseeing production of materials required for the pipeline organising personnel, plant and equipment to complete the project and preparing project reports. Mr Dermot Culloton was the pipeline superintendent for one of the major Murphy Pipe and Civil projects in Western Australia. He outlined the applicant’s duties on that project which was in similar terms to the letter from Mr Meagher.

10. According to submissions made on behalf of the applicant by his representative, the applicant’s job description for the purposes of his subclass 457 visa was in the nominated position of Contract Administrator which included liaising with clients, preparing reports and documentation, monitoring and directing the work of less experienced employees and conducting on-site supervision and liaison. It was submitted that the applicant was granted his subclass 457 visa in the nominated occupation of Contract Administrator on the basis of this information and this formed the basis for the application for his subclass 186 visa.

11. 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

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

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

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

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

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

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

5. The questions for determination are therefore:

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

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

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

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

6. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements. The critical issues before the Tribunal are, therefore, whether there was non-compliance in the way described in the s.107 notice and, if so, whether the visa should be cancelled.

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

1. 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 and s.103 in the following respects:

   (1)By claiming that for the period of 16 January 2011 to 25 March 2013 he had been employed in the position of a Contract Administrator; and

   (2)By providing a letter from Murphy Pipe and Civil which was obtained because of a false or misleading statement in that it claimed that since 16 January 2011 the applicant had been employed as a Contract Administrator.

2. The letter from Murphy Pipe and Civil states, in part, as follows:

   Cornelius (Jon) Waters is currently in full-time employment as a Contract Administrator, working a minimum 38 hour week, with Murphy Pipe & Civil. He was employed on his first working holiday visa from 2 February 2009 until 30 July 2009 then on a second working holiday visa from 21 June 2010 to 17 December 2010. Mr Waters recommenced with us on a Bridging Visa A on 16 January 2011 working through to 7^th February where his 457 application was granted. He remains in our employ.

   As a result of Mr Waters work with us, he is familiar with our work procedures, and in particular our on-site processes and we would like to preserve this learning. We would have significant difficulty finding another to fill the position.

   We wish to nominate Mr Waters for a permanent position as he is a valuable asset to our company.

   Following is a list of typical tasks, duties and responsibilities performed by Mr Waters in this role:

   ·Generally manage all administrative operations foresight,

   ·Liaise with employees and contractors to answer questions, disseminate or explain information,

   ·Process and prepare documents,

   ·Prepare on-site meetings agendas, attend meetings, and record and transcribe minutes,

   ·Represent the company on-site to assist the head contractor in the inspection of sites making sure they comply with all Health and Safety Acts and regulations,

   ·Monitor and direct the work of less experienced employees and coordinate personnel,

   ·Maintain records and progress and departures from specifications for purposes of variations encountered during construction,

   ·Maintain a safe and clean work environment.

3. The letter goes on to list a number of the projects that Murphy Pipe and Civil were involved with including details of each location of the project, the project’s client, the project’s value and the workforce number.

4. The delegate who considered the application found that the definition of Contract Administrator in ANZSCO would require that person to be largely undertaking administrative tasks associated with the contracts. The delegate found that the information provided by the applicant indicated that he was looking after a crew and performing an operational role which was not consistent with somebody who was employed as a Contract Administrator.

5. To understand these findings, it is relevant to understand the ANZSCO code description of the occupation of Contract, Program and Project Administrators. While we are not bound by the findings of the delegate and must make our own decision afresh, it is useful to explain why we have come to a different view on the critical issue in dispute.

6. Since 2006 the various occupation lists used by the Department for the purposes of approving skilled visas have been derived from ANZSCO. ANZSCO is a skill-based classification of occupations for all jobs in the Australian workforce.

7. The Australian Bureau of Statistics, which publishes ANZCSO, has given the following guidance in relation to the interpretation of ANZSCO occupation definitions[3]:

   [3] Australian Bureau of Statistics website ANZSCO OCCUPATION DEFINITIONS

   ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.

   The definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.

1. The position of Contract, Program and Project Administrator is described in ANZSCO as follows:

   CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.

   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
   In Australia:

   AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

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

   Tasks Include:

   odeveloping, reviewing and negotiating variations to contracts, programs, projects and services

   oresponding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

   omanaging paperwork associated with contracts, programs, projects and services provided

   oworking with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

   oadvising senior management on matters requiring attention and implementing their decisions

   ooverseeing work by contractors and reporting on variations to work orders

   opreparing and reviewing submissions and reports concerning the organisation's activities

   ocollecting and analysing data associated with projects undertaken, and reporting on project outcomes

   oreviewing and arranging new office accommodation

   Occupations:

   511111 Contract Administrator
   511112 Program or Project Administrator

   
   511111 Contract Administrator
   Alternative Title:

   Contract Officer

   Prepares, interprets, maintains, reviews and negotiates variations to contracts on behalf of an organisation.

   Skill Level: 2

   511112 PROGRAM OR PROJECT ADMINISTRATOR
   
   Alternative Title:

   Project Coordinator

   
   Plans and undertakes administration of organisational programs, special projects and support services.

   Skill Level: 2

2. As set out above, the position of Contract, Program and Project Administrator as set out in ANZSCO is divided into two subclasses, Contract Administrator and Program or Project Administrator. The two different roles have a significant area of overlap with the different roles having different technical priorities. In his application, the applicant described himself as a Contract Administrator following the advice of his agent and employer. The description of his duties for the relevant period was set out in the letter provided by Murphy Pipe and Civil and in a resume prepared by the applicant. The tasks set out in those documents do not specifically state that the applicant was involved in preparing, interpreting, maintaining, reviewing and negotiating variations to contracts on behalf the organisation, but do state the applicant was involved in the process and preparation of documents.

3. The other tasks described in the letter and resume do not follow the exact wording as found in ANZSCO for the description of the position, but sets out the specific tasks that the applicant had been involved in over the relevant period. The tasks set out are primarily involved with administrative operations for the site where the applicant was working. He was required to respond to enquiries from contractors and managing the paperwork, including maintaining records from the site, associated with the contract and project he was involved with. This included collecting and analysing the data associated with the project and reporting on the progress and departure from the specifications during construction.

4. The Tribunal has taken into account the information provided by the applicant at the hearing. The applicant provided credible evidence as to his tasks and duties over the relevant period when he was employed by Murphy Pipe and Civil. The information provided by the applicant during the hearing as to his duties was consistent to the information provided with the application by the applicant and in the letter from Murphy Pipe and Civil. His role was primarily administrative. His work was based primarily out of an on-site office managing the administrative operations for the project. He was required to manage the paperwork associated with the project and prepare reports with respect to the progress of each project he was involved with. He was involved with working with project managers, surveyors and other engineering professionals in respect of each project he was involved with. He was required to oversee the work by contractors and other employees and, as was stated in the letter from Murphy Pipe and Civil was required to monitor and direct the work of less experienced employees and coordinate the personnel.

5. The Tribunal finds that the information provided by the applicant, including the letter from Murphy Pipe and Civil, as to the description of the duties of the applicant during the relevant period was accurate. Presumably, the delegate who assessed the original application accepted this evidence as satisfying the requirement that the applicant was in the position of a Contract Administrator as the visa was granted to the applicant. While the Department may now consider that the information provided by the applicant at the time of the application would not satisfy their view of the tasks and duties of the position of a Contract Administrator, it is not appropriate to reassess the original application when considering whether the ground for cancellation is made out. The task is to determine whether there was non-compliance in the way described in the Notice to Consider Cancellation, namely whether the applicant provided incorrect answers and a bogus document in support of the application when claiming to have worked as a Contract Administrator for the period from January 2011 to March 2013.

6. The Tribunal finds that the description in ANZSCO for a Contract, Project or Program Administrator is not restricted to purely administrative roles. The duties of the position could vary significantly based on the nature of the work of the employer. The definition recognises that qualification for the position may arise from relevant experience (assessed as at least three years) or formal academic qualifications which may require some on-the-job training. In this case it is relevant to note that the description of the role of Contract Administrator is more specific than the other roles in the ANZSCO classifications and refers to the role of Contract Administrator as preparing, interpreting, maintaining, reviewing and negotiating variations to contracts on behalf of an organisation. It is clear from the evidence that the applicant was not involved in any of these activities. However, the letter from Murphy Pipe and Civil and the information provided in support of the subclass 457 visa also makes it clear that the applicant would be involved in pipeline construction at various sites as part of his role in the nominated position. The offer of employment provided with the application notes that the applicant would be receiving a remote area allowance when involved with project related work and the accommodation arrangements provided in that offer of employment also indicate that the applicant would be working on-site. The applicant’s job description and the activities he was undertaking, as disclosed in the letter from Murphy Pipe and Civil and the documents provided in support of his subclass 457 visa, are consistent to the ANZSCO descriptions for the roles of Program or Project Administrator or Project Coordinator.

7. The question is whether the information provided by the applicant was incorrect and whether the letter provided by Murphy Pipe and Civil was bogus within the meaning of the Act in these circumstances.

8. There is nothing in the application for the subclass 186 visa which incorporates the ANZSCO definition of Contract Administrator as a requirement for the application. Nor was there anything in the answers or information provided by the applicant that made such a representation. In response to the question ‘Give details of employment undertaken in the last 10 years’, the applicant answered ‘Contract Administrator’. The description of duties was stated to be as set out in the ‘attached detailed statement of service’. The detailed statement of service was the letter from Murphy Pipe and Civil dated 21 January 2013 set out above. Accordingly, it is not fatal to the applicant’s case if we find he did not perform the role of a Contract Administrator in the relevant period as it is defined as the role is defined in ANZSCO. The critical issue is whether the applicant performed the duties and tasks that he was represented to have been undertaking in the relevant period in the statement of service letter from Murphy Pipe and Civil.

9. The Tribunal has taken into account the documentation the Department relied upon as a result of the audit done on Murphy Pipe and Civil. As has been referred to in other decisions related to the audit of Murphy Pipe and Civil, the administrative function and bookkeeping of Murphy Pipe and Civil in respect of their employees may be considered unreliable. Shortcuts were taken in respect to various administrative procedures. This included listing the applicant as being on an enterprise bargaining agreement which the Department found were restricted to such occupations as trade persons, plant operators, labourers and trades assistants. The Tribunal accepts that the applicant was offered and accepted the pay he was offered without questioning the administrative process adopted by Murphy Pipe and Civil to record the pay he received which did not necessarily reflect the work the applicant was actually doing.

10. Documents obtained by the Department from Murphy Pipe and Civil after the grant of the visa in October 2013 do not relate to the period where the applicant had claimed in his application he was employed as a Contract Administrator. The Tribunal accepts the evidence given by the applicant that after November 2013 there was a downturn in the industry and, as a result, his position was downgraded and he was required to work in a non-managerial position. He received a redundancy from Murphy Pipe and Civil in December 2014 as a result of the continuing downturn in the industry and lack of active projects being conducted by Murphy Pipe and Civil. The Tribunal finds that these changes in circumstances explain the information obtained as to the applicant’s employment after November 2013.

11. The Tribunal concludes that the weight of evidence supports a finding that the applicant undertook the duties and tasks outlined in the letter from Murphy Pipe and Civil which was attached to his application. The Tribunal therefore finds that the information the applicant provided in his application for the subclass 186 visa was not incorrect. Further, the Tribunal finds that the documents provided by the applicant in support of the application, and in particular the letter from Murphy Pipe and Civil dated 21 January 2013, provided correct information and were not bogus documents.

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

13. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

DECISION

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

Jan Redfern
Deputy President

Hugh Sanderson
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

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

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

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

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

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

2. Interpretation

   In this Subdivision:

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

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

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

3. Completion of visa application

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

4. Information is answer

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

5. Incorrect answers

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

6. Visa applications to be correct

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

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

7. Bogus documents not to be given etc.

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

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

8. Notice of incorrect applications

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

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

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

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

   (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

   (f)     requiring the holder:

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

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

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

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

   (b)    otherwise—14 days.

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

   (a)    visas of a stated class; or

   (b)    visa holders in stated circumstances; or

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

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

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