Yeung (Migration)

Yeung (Migration) [2019] AATA 4742 (28 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ching Yue Yeung
CASE NUMBERS:  1908610 and 1910506
DIBP REFERENCE(S):  BCC2017/29961 BCC2019/827148
MEMBER:Kate Millar
DATE:28 October 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging) visa.

Statement made on 28 October 2019 at 12:35pm

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – incorrect information in visa application – other names applicant was known by – overstayed previous visas – previous visa cancellations – previously removed from Australia – consideration of discretion – visa grant based on incorrect information – deliberate provision of false information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Ms Yeung is a citizen of the Hong Kong Special Administrative Region (SAR). She most recently arrived in Australia on a tourist visa on 30 September 2016. She married Mr Ri Sheng Quan on 10 December 2016 and applied for and was granted a Partner (Temporary) (Class UK) visa on 4 January 2017.
On 5 April 2019 her Subclass 820 visa was cancelled, and on 23 April 2019 a subsequent Class WA (Bridging A) (Subclass 010) visa was also cancelled. The reason given for both cancellations was the provision of incorrect answers to questions asked of her in her application for the Partner (Temporary) (Class UK) visa. The Tribunal held a combined hearing on the cancellation of both visas and this decision relates to both applications.
In summary, Australian Border Force intercepted a package containing eight Hong Kong SAR passports. These passports contained photographs of the same person issued under different names. The delegate found that four of the passports contained photographs of the same person, Ms Ching Yue Yeung.
In her application for the Partner (Temporary) (Class UK) visa Ms Yeung did not disclose in her response to questions that she was known by other names, had been deported from Australia or had overstayed previous visas in Australia. The delegate found Ms Yeung had failed to correctly answer questions in breach of the obligation in s.101 of the Migration Act 1958 to fill in her application form in such a way that no incorrect answers are given.
Ms Yeung concedes she provided incorrect information in her application, but states that she was waiting for the delivery of the passports so she could provide correct information contained in these passports in her visa application.
Ms Yeung appeared before the Tribunal on 21 October 2019 to give evidence and present arguments, and was represented by her registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
For the following reasons, the Tribunal has concluded that both decisions should be affirmed.
CERTIFICATES ISSUED UNDER S.375A OF THE ACT
A certificate issued under s.375A of the Act appeared on the file BCC2017/29961 that relates to Ms Yeung’s application for a partner visa. A certificate issued under s.375A also appeared on file BCC2019/827148, which relates to the bridging visa.
If a certificate is validly issued under s.375A of the Act, the Tribunal must do all that is necessary to ensure the document or information the subject of the certificate is not disclosed to any person.
Copies of the certificates were provided to Ms Yeung prior to the hearing, and she was invited to provide comment on the validity of these certificates. Ms Yeung did not make any submissions on the validity of the certificates.
The general nature of the information addressed by the certificates is that Ms Yeung has been known by other identities. This was disclosed in the decision record and addressed at hearing. Ms Yeung concedes she was known by seven other identities. As such, the Tribunal considered the general nature of information adverse to Ms Yeung had been disclosed to her.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 820 (Spouse) visa and a decision to cancel her Subclass 010 (Bridging) visa under s.109(1) of the Act.
The delegate cancelled the visas on the basis that Ms Yeung did not provide correct information in her spouse visa application and therefore failed to comply with s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visas should be cancelled.
To exercise the power to cancel a person’s visa under s.109 of the Act, the Minister must first issue 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.
Under s.107A of the Act, the possible non-compliance in a notice issued under s.107 of the Act can include non-compliance that has occurred at any time, including non-compliance in respect of any previous visa held by the person. In this case, the particulars included in the notice regarding the Subclass 010 (Bridging) visa rely on incorrect information given in the application form for a Subclass 820 (Spouse) visa.
Did the notices comply with the requirements in s.107?
A notice of intention to cancel Ms Yeung’s Subclass 820 visa was issued on 12 March 2019 and a notice of intention to cancel Ms Yeung’s bridging visa was issued on 15 April 2019.
To comply with s.107, the Minister (or his delegate) must first form a view that the person may not have complied with the obligations in (as it applies in this case) s.101 of the Act. Given the interception of the passports, and the answers given to questions in the application for a spouse visa, it was reasonable that the delegate would reach a state of mind to engage s.107 of the Act.
Section 107 sets out a series of requirements for a valid notice. The first is that the notice includes particulars of the possible non-compliance. The non-compliance identified and particularised in both of the s.107 notice was non-compliance with s.101 of the Act in that Ms Yeung gave the following answers to questions asked of her in Form 47SP, which was her application for the spouse visa:
·     At Question 4 she was asked Have you or any other person included in this application ever had a visa cancelled and she answered No
·     At Question 14 of the form she was asked Is the applicant currently, or have they ever been known by other names and she answered No
·     At Question 72 she was asked Have you, or any other person in this application, ever been removed, deported or excluded from any country (including Australia)? and she answered No
·     At Question 72 she was asked Have you, or any other person in this application, ever overstayed a visa in any country (including Australia? And she answered No.
The notice specified that on 28 October 2016, Australian Border Force intercepted a parcel containing eight Hong Kong SAR passports sent by post to 421A Light Street Dianelle WA. It is stated the passports all contained photographs of the same person but with different identities, being:
KAM, Lai Kam
KAM, Yu
KAM, Lai Kam (different passport number)
KAM, Hoi Ching
KAM, Pang Yu
YEUNG, Wai
KAM, Yuk Ping.
The notices specify that several of the identities in the passports were linked to travel movements to Australia and persons who have overstayed a visa or had been refused entry at the border. Specifically:
·     On 29 March 2012, Yu Kam departed Australia from Perth and was identified as having overstayed her visa. It was explained to her she was subject to a three-year exclusion period.
·     On 15 November 2013, Hoi Ching Kam departed Australia and was identified as having overstayed her visa.
·     On 11 June 2015, Wai Yeung arrived at Perth airport as the holder of a visitor visa. Her visa was cancelled under s.116(1)(b) as there was evidence she had worked in Australia on a previous visa in breach of the conditions of her visa. She was refused entry to Australia as an unlawful non-citizen.
·     On 4 September 2016, Yuk Ping Kam arrived in Sydney as the holder of a visitor visa. Her visa was cancelled under s.116(1AA) and she was refused immigration clearance. During the course of the cancellation interview, Yuk Ping Kam admitted she had also been previously known as Hoi Ching Kam, had overstayed her visa and was removed from Australia on 15 November 2013.
The notices state that a facial image comparison report compared photographs for four of the identities and found they represent the same person. Those identities were Ching Yue Yeung, Hoi Ching Kam, Yuk Ping Kam and Wai Yeung.
The notices state that the findings of the facial comparison report indicate that Ms Yeung is the same person as those persons who were identified as having an adverse immigration history.
The notices specify that Ms Yeung answered the four questions detailed above incorrectly and therefore she did not comply with s.101(b) of the Act.
Given the information set out above, the Tribunal is satisfied the notices set out particulars of the non-compliance.
The Tribunal finds the notices comply with s.107(1)(b),(d),(e) and (f).
The Tribunal considers the notices could have been expressed more clearly in respect of s.107(1)(c). This requires that the notice states the Minister will consider cancelling the visa at one of three points in time: when the person notifies that he or she is not going to give a written response, when the person gives a written response or when the period has expired. While it is not material in this case, the notices did not specify that the Minister may consider cancelling the visa when the Minister receives the response.
It is not material in this case as Ms Yeung provided a response within the required timeframe in response to both notices, and the delegate considered the responses prior to making a decision and after the expiration of the period for providing the response.
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that both notices issued under s.107 complied with the statutory requirements in all material respects.
Was there non-compliance as described in the s.107 notices?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notices, being the manner particularised in the notices, and if so, whether the visas should be cancelled.
Ms Yeung stated that she has changed her name many times, but without her previous passports could not give accurate advice on the application about previous travel to Australia. More specifically, Ms Yeung said she had changed her name seven times and gave the names listed in the notice of intention to cancel her visa as names she had previously used. She said she had entered Australia using these names, had been refused entry to Australia in the past and had overstayed her visa twice.
Ms Yeung concedes that she had given the answers to questions asked of her in her Subclass 820 (Spouse) visa application as stated in the s.107 notice, and that those answers were not true. It follows she had given incorrect answers in her application form.
As a result, the Tribunal finds that there was non-compliance with s.101 of the Act by Ms Yeung in the way described in each of the notices issued under s.107 of the Act.
Should the visas be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notices given to the applicant under s.107 of the Act, it is necessary to consider whether the visas 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).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notices about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c).
Ms Yeung said she needed her passports to tell when she had travelled by the stamps in her passports. The Tribunal pointed her to the delegate’s decision, which states that holders of Hong Kong SAR passports enter Australia using the electronic gates and do not have their passports stamped. She said that up to her latest entry she had stamps on her passports. As the date that electronic gates were in operation was not included in the delegate’s decision, the Tribunal assumes in Ms Yeung’s favour that this was the case.
However, none of the incorrect answers relied on in the s.107 notice are about previous travel to Australia. It does not explain why Ms Yeung would answer ‘no’ to questions of whether she has had a visa cancelled, has been known by other names, has ever been deported or has ever overstayed a visa. In answer to questions about why she needed her previous passports to answer questions that required a yes/no answer, Ms Yeung merely repeated that she was forced to provide false information because she was waiting for her passports to come.
In her written response to the s.107 notice dated 24 March 2019, Ms Yeung states she could not remember her past immigration history so decided to send the passports she had used previously from Hong Kong to Perth so she could put accurate dates in her visa application. She said that to submit her partner visa application before the expiry of her visitor visa she had no choice but to temporarily conceal her adverse immigration history. She states she was hoping to notify the Department of Immigration and correct the details later when she had received the passports. She states she and her husband are deeply in love and he is medically unfit and has sought alternative herbal treatment in China. She states it was a compelling ground that she could not obtain her passports because they were taken away from her. Mr Quan provided a statement dated 13 March 2019 in similar terms.
In a written submission in response to the s.107 notice in respect of the bridging visa dated 15 April 2019, it is submitted Ms Yeung should be able to continue to hold a bridging visa until the application to review the cancellation of her Subclass 820 visa is heard by this Tribunal.
On the day of the hearing, Ms Yeung provided a petition signed by 30 people and a further statement from Mr Quan which reiterates they are married and love each other. He states that Ms Yeung did not mention she changed her name because she had to fill in correct information and she had not received the passports she had posted. It states she was forced by the situation to provide wrong information. Mr Quan states he has necrosis in one eye and a cataract in the other. He states he does not have any family in Australia and he needs Ms Yeung to care for him.
Ms Yeung was asked in oral evidence why she needed the passports to answer the question of whether she had ever had a visa cancelled, and she said without the passports she could not get the date of entry to Australia. On being asked this question again, she said she needed to put detailed information in her visa application. She said she was asked if she was known by any other names, but without the other passports she could only put the latest information. She said she did not pay much attention to the dates she was refused entry to Australia and was removed from Australia. She said she did not tell lies intentionally.
Given Ms Yeung was known by seven other names and was waiting for passports issued in those other names when she lodged her partner visa application, it is not credible that she would not know at the time she answered the questions that she was known by other names. Being warned for overstaying a visa, being refused entry to Australia and having a visa cancelled and being removed from Australia are significant events, and the Tribunal would expect Ms Yeung to be able to answer yes or no to these questions without needing her previous passports. It finds Ms Yeung deliberately provided false answers on her partner visa application.
Ms Yeung said that she was trying to get married to her husband at the time. She gave the date of her marriage as 10 October 2016. The marriage certificate she provided with her partner visa application states the date of the marriage is 10 December 2016. The visa application was lodged on 19 December 2016, and at the time of the visa application Ms Yeung was married.
The Tribunal also considered that this answer may mean she wanted to remain with her husband as they are married. Mr Quan did not attend the hearing and Ms Yeung said it was difficult for him to attend. On being asked why it was difficult she said she thought he did not have to come and did not think it important that he attend. She said it took her ten minutes to travel to the Tribunal and that her representative drove her to the hearing. While the Tribunal does not accept it would have been difficult for Mr Quan to attend in those circumstances, it does not draw any further conclusions from his failure to attend, and it has had regard to the written statements he provided.
Ms Yeung said she cares for her husband by cooking for him, taking him for a walk every day and doing ‘everyday stuff’. Mr Quan does not work and his source of income is from Centrelink. She said he does not have family or relatives to care for him. The Tribunal accepts that Ms Yeung and Mr Quan have been married since 10 December 2016, a period of nearly three years and that she assists him because of his eyesight.
The Tribunal addressed each of the prescribed circumstances in r.2.41 of the Regulations with Ms Yeung in turn. These are:
·the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
In this case the correct information is that Ms Yeung has had a visa cancelled, has been known by other names, has been removed from Australia and has overstayed a visa. The correct information weighs heavily against Ms Yeung in circumstances where she intentionally provided incorrect information.
There being no documents in issue, the next factor does not apply.
In this case, Ms Yeung’s immigration history is relevant to the assessment of whether she meets the criteria for the grant of this visa. The delegate refers to an assessment of Public Interest Criterion (PIC) 4020, which is an element of a Subclass 820 visa. This requires that there is no evidence before the Minister that the person has given information which is false or misleading in a material particular in relation to the application for the visa or a visa held by the person in the period 12 months before the application was made.
In this case, the correct answers would have led to further enquiries about whether Ms Yeung met PIC 4020, although whether or not she would have met this requirement is not apparent on the documents before the Tribunal. The provision of incorrect information prevented the Department from fully assessing whether she met the criteria for the grant of the visa, but it cannot be concluded on the information before the Tribunal that she would not have been granted the visa. Ms Yeung herself said if she had put true information she would not have been granted the visa. She said she has many friends in the same situation who have stayed in Australia and this is why she wanted the passports sent to Australia as it was important that she provide correct information. In the absence of specific information to show how the correct information would have resulted in the refusal of the visa this consideration is a neutral factor. However preventing a proper assessment of a visa application is a serious matter and weighs against Ms Yeung.

Ms Yeung says the circumstances of the non-compliance were that she was forced to give incorrect information because she had not received passports in other identities which she had posted to herself. The Tribunal does not accept that she required the passports to correctly answer the questions, and finds that she has not provided a genuine reason for the non-compliance. This weighs against her.
The present circumstances of Ms Yeung are that she has now been married for three years and her husband has a vision impairment. She provides care to her husband. This weighs in her favour. The decision of the delegate refers to Ms Yeung working, however at the time of the hearing she said she was not working. Her husband relies on his Centrelink payments, and it is no longer the case that the household relies on Ms Yeung’s income.
There is no information before the Tribunal that Ms Yeung has not complied with Subdivision C of Part 3 after she lodged her Subclass 820 visa application. In regard to any other instances of non-compliance by Ms Yeung, without the benefit of the visa applications in the other identities, it is difficult to establish whether or not there has been past non-compliance. The Tribunal places little weight on this factor.
It has now been a little under three years since the non-compliance. In regard to any breaches of the law since the non-compliance, there is nothing before the Tribunal to show there have been subsequent breaches of the law.
Given the severity and nature of Ms Yeung deliberately providing incorrect answers that conceal an adverse immigration history, the Tribunal places little weight on compliance with Subdivision C of Part 3, the time since the non-compliance, and the lack of information to show there have been any subsequent breaches of the law.
In regard to contributions to the community, Ms Yeung said she volunteered at a nursing home talking to residents and folding clothes. Prior to her oral evidence this volunteer work has not been raised in response to the two notices of intention to cancel her visas or prior to the hearing. Ms Yeung was represented at each stage of this process. On it being put to her that this was the first time she had said she did volunteer work, and the Tribunal may have difficulty accepting this had occurred given it had not previously been raised, Ms Yeung said she did not know her volunteer work would help her, and that she also donates clothes and vegetables to people on the street. She provided no supporting evidence of volunteer work and the Tribunal does not accept she has undertaken volunteer work in the community.
Ms Yeung provided a petition which she says is signed by friends to support the reinstatement of her spouse visa. The Tribunal places little weight on this petition and does not consider it shows she has made a contribution to the community.
While these 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 Procedures 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.
Ms Yeung said there would not be any consequential cancellations if the visas were cancelled. On being asked if there was any reason she could not return to Hong Kong, she said she didn’t know.
On looking to other consequences of cancelling the Subclass 820 visa and the Subclass 010 visa, while there may be another visa to be determined as suggested by the delegate, the ultimate consequence is that Ms Yeung will be required to leave Australia. She provided a recently issued passport for Hong Kong SAR at the hearing, and there is nothing before the Tribunal to suggest she cannot return there. It is likely to result in Ms Yeung being separated from her husband, and her husband being required to access other care arrangements.
Ms Yeung asked that the Chinese tradition involving a person with bad luck changing their name to get good luck be taken into account and that when she had problems she changed her name. She said she realised she had made a mistake in waiting for the passports so she could provide detailed correct information.

CONCLUSION

Ms Yeung did not appear to see the contradiction in providing false information about identities she used, previous visa cancellations and previous overstays in Australia for the reason that she saw the importance of providing correct information on entry dates. If she considered it important to provide correct information, this does not explain why she provide incorrect information.
The Tribunal finds she deliberately provided incorrect information that prevented the Department from correctly assessing her partner visa application and to conceal an adverse immigration history. This is a significant matter, particularly as she had been known by seven different identities and has had visas cancelled and been refused entry twice. She has also previously overstayed her visa. The Tribunal considers this outweighs other considerations in her favour such as the length of her marriage, the care she provides for her husband and the possibility she will be separated from her husband.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notices given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that both the Subclass 820 and the Subclass 010 visas should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging) visa.
Kate Millar
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.
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.

[2019] AATA 4742

28 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice