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1822320 (Migration) [2019] AATA 1777 (31 January 2019)

Last Updated: 12 July 2019

1822320 (Migration) [2019] AATA 1777 (31 January 2019)


DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1822320

MEMBER: Jane Marquard

DATE: 31 January 2019

PLACE OF DECISION: Sydney

DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 116 (Carer) visa.

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

Statement made on 31 January 2019 at 2:06pm

CATCHWORDS
MIGRATION – cancellation – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – applicant did not comply with visa – applicant is carer for mother – spent time offshore for health reasons – other relatives provided assistance in her absence – no non-compliance by applicant – decision under review set aside – no jurisdiction with secondary applicants

LEGISLATION
Migration Act 1958 (Cth), ss 101-105, 107, 109, 116, 140

CASES
Bader v Minister for Immigration (2018) FCCA 485

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 first named applicant’s Subclass 116 (Carer) visa under s.109(1) of the Migration Act 1958 (the Act). The first named applicant is a married woman from [Country 1] and the other applicants are her daughters. The first named applicant (the applicant) was granted the Carer visa on 12 September 2016 to care for her mother, aged [age] years old. She claims to also care for her father, aged [age] years old.
  2. The delegate cancelled the visa on the basis that the applicant did not comply with section 101 (b) of the Act, which provides that a non-citizen must fill in or complete an application form in such a way that no incorrect answers are given or provided.
  3. The applicant has applied to the Administrative Appeals Tribunal (the Tribunal) for a review of that decision. The issue in this review is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
  4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
  5. The applicants appeared before the Tribunal on 19 December 2018. The applicants were represented and the representative appeared at the hearing. An interpreter in the Arabic ([Country 1] dialect) assisted the Tribunal.
  6. 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. Extracts of the Act relevant to this case are attached to this decision.

Was the s.107 notice valid?

  1. 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.
  2. 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?

  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.
  2. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b) of the Act, which provides that ‘a non-citizen must fill in or complete his or her application form in such a way that (a) no incorrect answers are given or provided.
  3. The non-compliance identified was as follows. On page 13 of the application form submitted by the visa holder on 13 September 2011, under the heading ‘details of other family members’, the visa holder provided the following information:

Name: [Mr A]

Date of birth: [date]

Country of current residence: Australia

Name: [Ms A]

Date of birth: [date]

Country of current residence: Australia

Name: [Mr B]

Date of birth: [date]

Country of current residence: Australia

Full name of relative: [Ms A]

Date of birth: [date]

Relationship to you: Mother

Name of organisation: [Organisation 1].

In response to the question, ‘can your relative obtain long-term assistance from this organisation’, the visa holder answered ‘no’.

‘I declare that the information that I have supplied in this application is complete, correct and up-to-date in every detail.’

‘I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled’.

  1. On 10 April 2012 the Department refused the application, because the delegate was not satisfied that the assistance could not be reasonably obtained from any other relative of the sponsor or from welfare, hospital, nursing or community services in Australia. The delegate found that her father was in receipt of a carer’s allowance, to provide care for her mother, and there was no evidence to demonstrate that her brother, [Mr B] and his family could not continue to provide assistance to her mother and father. The delegate also found that the letter from [Organisation 1] did not provide information on the ability of the organisation to provide care.
  2. After the refusal to grant the visa by the Department, the visa holder applied for a review of the decision to the Migration Review Tribunal (MRT). The MRT found that the visa holder had [various medical conditions]. The MRT found that she required a high level of care provided by someone who is in the house full-time. The MRT accepted that the visa-holder’s father was frail and had difficulties assisting her mother, and the visa-holder’s brother and two adult children were unable to provide care. The MRT found that the organisations her father had contacted for support were unable to provide the level of assistance required. The MRT therefore remitted the decision on 22 October 2013, and the Department granted the visa holder a Carer (Other Family) Migrant (subclass 116) visa on 12 September 2016.
  3. Since the grant of the visa, the following information came to the attention of the Department:
  4. The Department found that as she had spent about 12 months offshore since 6 weeks after the grant of the visa, she was not required to provide daily care to her mother, in line with the intentions of her visa. The Department stated that it appeared that appropriate care arrangements were in place to provide care for her mother in the visa holder’s absence and as such it appeared as if she was granted a visa to which she was not entitled. The Department noted that the visa holder remained in [Country 2] for three months prior to the [health] screening. The Department considered that the visa holder would have been able to use her [Country 2] medical records and access a range of medical services in Australia. The Department was of the view that 12 months absence from Australia was a significant amount of time.
  5. The Department concluded that there were grounds for cancellation under section 109 of the Act due to non-compliance with section 101(b).
  6. The particulars of non-compliance were set out in the Department’s Notification of Cancellation under Section 109 dated 31 July 2018.
  7. When the matter was before the Tribunal, the applicant submitted to the Tribunal that she provided correct information at the time of application and decision.

First particular of non-compliance

  1. Firstly, the Department found that the answer given to the question on page 17 of the application form, under the heading ‘Give details of the relative in Australia who needs your care’, was incorrect in stating the answer ‘[Ms A]”. This was because her mother was cared for by her father and other relatives while she was overseas. As such the delegate considered that the visa holder’s mother did not rely on the visa holder in line with the intentions of the visa.
  2. She provided to the Tribunal background to her role as carer, claiming that she travelled to Australia on a visitor visa from [August] 2016 to [October] 2016, after her mother fell and broke her shoulder. She had already booked a return ticket. Later her father also required care so she took care of them both. She is well qualified as her education and experience prepared her to be a carer. She helped them, and continues to help, with personal hygiene, grooming, medical observations and administration, emotional assurance, motivation and encouragement, interpretation, driving, coordination of medical and social appointment, physical exercise, shopping and food preparation. She said that she is ‘so happy’ to support her parents. Her father was [employed in an occupation] in [Country 1] and her mother was [employed], and she is so glad to give back to them and make them happy, as they gave so much to her.
  3. She said that the subclass 116 carer visa was granted on 12 September 2016 three years after the review by the Migration Review Tribunal, and five years after the initial lodgement of the application. The visa holder claims that she was granted a subclass 116 visa on the basis that she satisfied the visa requirements at the time of application and at the time of decision because she provided the correct information. She claimed that her initial date of entry on her visa was [January] 2017, and she was ‘legally allowed to make her initial entry’ prior to [January] 2017 without any question. She departed Australia to settle her affairs, including selling her lodging and car, in [Country 2] prior to migrating to Australia permanently.
  4. She claimed that in the beginning of February 2017 she received [test] results and found a [medical condition]. She underwent a [procedure] in [Country 2] because the knowledge would affect her parents and cause them stress, and because it was a familiar environment. She underwent a [procedure] in March 2017 and the results came [back]. Medical reports indicated that diagnostic tests were conducted [in] October 2014, [November] 2014, [May] 2015, [January] 2017 and [February] 2017.
  5. At the Tribunal hearing, the Tribunal asked why, notwithstanding that she had affairs to attend to, she was away for a period of six months, if it was her intention to care for her mother, and her mother urgently needed her care as she had claimed. She said that her father looked after her mother until she arrived, but the quality of care was not good. Both her mother and father were waiting for her to arrive urgently. Asked if she thought they could look after themselves until she arrived in April 2017, she said that it was not the same quality of care but they were trying to manage.
  6. The Tribunal questioned her further about why she left in October 2016 and did not arrive until April 2017, given that her [health] screening was only at the end of January 2017 and the results arrived in February 2017. The Tribunal asked her why she did not arrive between February and July 2017 after arrival of the tests. She said that the screening was done [in] January 2017 and the [procedure] in March 2017. She said that she was granted her carer visa while still in Australia, and already had a return ticket. She was not planning to stay permanently in Australia on that visit. She needed to return to settle her affairs – her family, house, and personal affairs. While there, she did a screening for [condition], and was afraid as there was a suggestion of [a medical condition], so also had to undergo a [procedure].
  7. She also claimed that she suffered a painful condition [between] [July] 2017 and [January] 2018 diagnosed by a specialist in [Country 2] in April 2017. A disc was provided indicating that she had tests in August 2017. She said the [medical condition] [scared] her, and she wanted to get rid of it. She underwent surgery in October 2017 and claimed she had to remain in [Country 2] for treatment for two months. Her daughters are [Country 2] citizens. During this period her daughter [Applicant 2] transferred her studies from a [Country 2] university to an Australian university. During this time she had an agreement with her brother that her brother would take care of her mother and father for a short temporary period. She also needed to finalise everything and settle her affairs. The Tribunal put to her that this explained the July to October 2017 period, but not what happened before or after this, which would justify not caring for her mother if her mother was in dire need of care as claimed. She said that the second period was not meant to last this long, but a specialist gave her an appointment. The Tribunal put to her again that it was a long period of time to be away from Australia if her mother really needed the care as claimed. She said she was given four months to organise herself, and health issues arose. She said her mother and sister had [a medical condition] in the past so she did not want to tell them about her health issues, so stayed in [Country 2]. When she resolved the issues, she came back to Australia straight away.
  8. She emphasised that while she was away she had long conversations with her parents all the time on the telephone, and monitored them and gave them [advice]. She was making sure that if they went to the doctors she provided advice and assurance. When her physical presence was needed, her brother was there for them.
  9. She submitted that her greatest concern is the well-being of her parents and she made arrangements for her brother [Mr B] to look after her parents while she was away. These arrangements were made temporarily as he is a full-time employee and has his own family to look after.
  10. She said that the visa was cancelled prior to her arrival so she travelled to Australia on a visitor visa. It was claimed that the cancellation had dire impact on her and her family. Firstly she is currently caring for her mother and her father who is currently in hospital. Since she arrived in Australia she has been providing care for both of them. She said that early in the morning she [assists her father]. She reports to the doctor on their issues. She prepares breakfast and gets them ready to go out to get coffee or go to community lunches, doctor’s appointments and physiotherapy sessions and she drives them to church and appointments. She takes care of their nutrition, household and wellbeing, and provides them with company and care. She helps hosts visitors, and ‘does everything’. It was submitted that cancellation of the visa would deprive these two Australian citizens, her mother and father, of their right to live in their own home to be cared for by their loved ones. It was submitted that the parents if cared for could stay in a safe, familiar environment where they are happy and settled. This would provide them some independence and allow them to have a role in their community, interacting with friends and neighbours and continuing with their routines. According to the representative ‘they will have as little or as much care as they need and when they need it. The biggest issue for elderly is loneliness and if the applicant is their carer they will have the companionship of their own daughter, as well as the ability to carry on with their own personal habits and routines. Moving would cause Relocation Stress Syndrome.
  11. Secondly, it was submitted that cancellation has caused dramatic psychological effects for her daughters because of the uncertain future. Her daughter [Applicant 2] has lost the right to study and work due to cancellation. [Applicant 2] is a student at [a] University. She is also working in [Occupation 1]. She has been here since February 2018. She is very involved in church activities, such as Sunday school and choir. She has good references from [the employer] and is looking to get promoted. Her daughter [Applicant 3] has no-one in [Country 2] to return to, and nowhere to live and would need to start again. She has tried surfing and is involved in a number of sporting representative leagues. She has made a few friends, has been bushwalking and is slowly integrating. She just finished the last semester studying [a course] in [Country 2]. She arrived in Australia [in] August 2018. She hopes that she can stay. She loves Australia and it would ‘rip her apart if she had to leave’. She would like to find work in [a] field in [an industry].
  12. [Mr B], the applicant’s brother said that the decision on the visa would impact him hugely as he would have to care for his parents and does not know how he would do it as he works full-time. Every decision was made in the genuine best interest of his parents, and they believed the information to all be correct as was provided. His sister had a good job in [Country 1] as a [health professional], and she only came to Australia because she was needed. She was working in [Country 1] in [an organisation], although she has now retired to come to Australia. She is studying [a course] part-time at [an education facility].
  13. A letter from [Dr C] dated 26 November 2018 stated that he was the family doctor of [Ms A], aged [age] and [Mr A] aged [age]. He said that both are frail and in constant need of care and support. He reported that [Ms A] medical background included [various medical conditions]. [Mr A’s] medical background included [various medical conditions]. The doctor reported that [Mr A] recently had major complications resulting from [a procedure] that required additional surgery and an extended stay at hospital. He is still being treated and will continue to be for some months. He said that both of them rely heavily on the care of their daughter and the demand for care is high and increasing beyond what [Mr B] can offer. She accompanies them on visits and supervises medication, monitors blood sugar and pressure and balances their nutrition and overall health progression. They are dependent on her for transportation, food preparation, domestic personal activities and social activities.
  14. A letter from [a medical professional], [Hospital 1] dated 11 September 2018 stated that she had known [Ms A] since August 2017 through the aged care clinic. She had been diagnosed with [a medical condition] of mild to moderate severity since mid-2017. Her other medical conditions include [various medical illnesses]. She requires assistance with all instrumental activities of daily living such as shopping, finances, laundry, domestic duties, showering, cooking, personal care, medication, mobility and dressing. Due to her cognitive impairment, she requires prompting for activities and supervision. Her function has been declining and she requires 24/7 assistance. Her daughter has been providing 24/7 care for [Ms A] while she is in Sydney.
  15. A letter from [Dr D], [Resident] Medical Officer for [another doctor], requested that the visa holder be a carer for [Mr A], as he is a ‘chronically ill man who has required frequent hospitalisation for a variety of issues’. His medical history was listed in the letter along with current issues for hospitalisation.
  16. A letter from [a] Local Health District dated 6 November 2018 to [Mr A] provided an Aged Care Assessment stating that he was eligible to receive residential respite care at a high level, with 63 days of subsidised residential respite care. Further his priority for home care was ‘medium’ and he would be placed on the national queue for access.
  17. A physiotherapy report dated 5 December 2018 for [Mr A] stated that he could mobilise with 4WW with close supervision outdoors, and a walking stick indoors. It listed numerous problems and care requirements.
  18. A physiotherapist report dated 5 December 2018 for [Ms A] also reported mobility with 4WW close supervision outdoors and numerous problems and health requirements.
  19. A report from the [specialist] at [Hospital 1] dated 5 December 2018 stated that [Mr A] had a resolving multifactorial delirium with newly diagnosed cognitive impairment. He also had multiple comorbidities which contribute to his frailty. He required supervision for mobility and assistance with domestic chores, all of which ‘are currently provided by his daughter’. A detailed letter was attached, setting out his cognitive assessment.
  20. A letter dated 7 December 2018 from [a medical facility] stated that [Mr A] is a ‘delightful’ [age] year old man, living with his wife [and] his daughter who is their carer. The [medical professional] related his medical history and in particular the impact of a fall in August 2018. This had resulted in a protracted and complicated recovery including [various medical conditions]. The [medical professional] said that before the fall [Mr A] could contribute to his wife’s care but now both he and his wife require care.
  21. The Tribunal has carefully considered all the evidence set out above. While the fact of the applicant’s two periods of absence from Australia does appear on the face of it, to reflect that her mother did not need her care, at least during that period of time, the Tribunal is not satisfied that the answers given or provided in the application forms were incorrect, for the reasons set out below.
  22. The Tribunal is satisfied that the applicant’s mother needed her care as stated, and that the applicant believed this to be the case when she gave these answers in the application. Clearly, as illustrated by the numerous medical reports provided, the applicant’s mother is in need of care. The letter from [Dr C] dated 26 November 218 refers not only to the detailed medical needs of her mother, [details deleted], but to the fact that she is reliant on her daughter’s care. This was confirmed by [another consultant]. The Tribunal is satisfied also on the basis of medical reports that her father has a number of medical issues and is unable to provide this care on an ongoing basis, and furthermore, he is aged [age]. A letter from [Dr D] confirmed that her father requires a carer due to numerous health issues. The Tribunal is satisfied that the care provided by the father and brother was temporary only and that the applicant remained closely involved by telephone. The Tribunal accepts that it is reasonable to return to a country of origin to organise one’s affairs and the relocation, particularly as the visa was granted to the applicant while she was in Australia so had had no time to organise her move. Further, the Tribunal accepts that a number of medical issues arose and she sought attention and treatment for these in [Country 2], as she was familiar with doctors there. While this does not fully explain the length of time she remained in [Country 2], and it would have been expected there would have been more of a sense of urgency to return and care for her parents, the Tribunal is satisfied that she was tidying up her life in [Country 2] with a clear intention to take up full-time care of her parents in Australia. The Tribunal is persuaded by the evidence of the applicant and her brother that her parents need the care, and it was always her intention to provide that care. In the meantime she had made arrangements with her brother who took leave from work. However as the documentary and oral evidence reflects, he has a full-time job and this provision of care was always intended as temporary only until the applicant returned.
  23. The Tribunal is satisfied therefore that the answer given to the question on page 17 of the application form, under the heading ‘Give details of the relative in Australia who needs your care’, was not incorrect in stating the answer ‘[Ms A]”.

Second and third particular of non-compliance

  1. The Department found that the answer given to the question on page 17 ‘ what assistance will you provide to your relative and for what period will you provide that assistance?’ was incorrect. The answer given was ‘I will provide my mother with all possible and needed assistance. I am a [health professional] myself, therefore I would be able to assist her with her personal needs as well as medical needs.’ The Department found this answer to be incorrect as the visa holder was not in Australia from [October] 2016 to [April] 2017 and from [July] 2017 to [January] 2018, to provide the carer in assisting her mother with personal and medical needs, and her father and other relatives provided assistance in her absence.
  2. The visa-holder’s answer to the question on page 17 ‘are any relatives in Australia (other than yourself if you are applying onshore) reasonably able to provide the assistance required?’ was found to be incorrect. The applicant answered ‘no’ to this question. The Department found this to be incorrect as the visa holder stated that her father and other relatives provided the care in her absence.
  3. In relation to these questions, as referred to earlier, the applicant claimed that the circumstances of her return to [Country 2] were beyond her control. She claimed that she waited five years for the visa and would not have deliberately and willingly jeopardised the visa. She claimed that during her absence her brother [Mr B] was aware of the circumstances and made arrangements for care. A Statement of Employment dated December 2018 from [a workplace] confirmed that [Mr B] was [employed], a permanent position he had held since [July] 1994, working for 35 hours a week. He told the Tribunal that he was able to take off extensive time, about four months of work, because he had five years of his sick leave owing. He and his sister agreed that she would get her medical issues sorted out and then she would take up her carer position, and so they took the decision in the best interests of her and her parents. He said that he is still currently working full [time].
  4. This evidence was confirmed by a written statement of [Mr B] which indicated that he took 74 days of sick leave to care for his mother between [January] 2016 and [June] 2017 and requested a flexible program at work with four days a work week and late start and finish to care for his mother. He stated that these were temporary arrangements and not sustainable, as he has a [specific role]. The applicant also claimed that [Mr B’s] wife and sons are unable to provide assistance to care for her mother because his wife is [employed] and his sons live in [other cities]. A letter from [Mr B], and the son’s driver licence and sister-in-law’s [professional] registration were provided as evidence.
  5. Reference was made to the decision by Judge Driver of the Federal Circuit Court in the case of Bader v Minister for Immigration (2018) FCCA 485 (20 March 2018), in which the judge found that a person in a supportive role could provide substantial and continuing assistance even though another person is a dominant carer.
  6. It was argued further by the applicant that the care could not be provided on an ongoing basis by community, welfare or health services. The applicant referred to the report from [the] Local Health District regarding [Mr A’s] care plan and eligibility which states that he is eligible for Residential Respite Care at a high level for up to 63 days of subsidised respite care a year. The visa holder also referred to the Home Care package Level 3, where his priority for home care is medium. He would be placed on the national queue for access to home care and would be notified when a home care package was available. It was submitted that the visa holder’s parents are both pensioners and having a fulltime live in carer would be the most expensive option.
  7. Evidence was also provided that care could not be reasonably obtained from other relatives. A letter from [a department of the] University dated 11 December 2018 stated that [Applicant 2] commenced a degree in the first half of2018. A letter dated 7 December 2018 from the Human Resources Manager at [the employer] confirmed that [Applicant 2] had been employed from [May] 2018 to the current time, most recently in the permanent position of [details deleted].
  8. The Tribunal is satisfied that the answer given to the question on page 17 of the application ‘what assistance will you provide to your relative and for what period will you provide that assistance?’ was not incorrect. The answer given was ‘I will provide my mother with all possible and needed assistance. I am a [health professional] myself, therefore I would be able to assist her with her personal needs as well as medical needs.’ The Tribunal does not accept that this answer is incorrect simply because the visa holder was not in Australia from [October] 2016 to [April] 2017 and from [July] 2017 to [January] 2018, to provide the care in assisting her mother with personal and medical needs. The answer given was that she would provide her mother with all possible and needed assistance, which it was still the visa holder’s intention to do, once she had relocated from [Country 2] and sorted out her medical issues. The Tribunal is also not satisfied that the answer was incorrect because her father and other relatives provided assistance in her absence, as the fact that they assisted on a temporary basis did not mean that she would not be providing the possible and needed assistance on a long-term and permanent basis.
  9. The Tribunal is not satisfied that the visa holder’s answer to the question on page 17 of the applicant ‘are any relatives in Australia (other than yourself if you are applying onshore) reasonably able to provide the assistance required?’ was incorrect. The applicant answered ‘no’ to this question. The Department found this to be incorrect as the visa holder stated that her father and other relatives provided the care in her absence. The Tribunal is not satisfied that the answer was incorrect as it was true that the father and other relatives were not reasonably able to provide the assistance required. Although they assisted on a short-term basis, they are unable to provide the assistance required permanently, as evidenced by the medical reports, and evidence of the brother’s employment and other relatives’ unavailability.

Conclusion on non-compliance

  1. For the reasons set out above, 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.

CONCLUDING PARAGRAPHS

  1. 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 first named applicant’s Subclass 116 (Carer) visa.
  2. The Tribunal has no jurisdiction with respect to the other applicants.



Jane Marquard
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.

  1. Interpretation

In this Subdivision:

application form, in relation to a noncitizen, means a form on which a noncitizen 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).

  1. Completion of visa application

A noncitizen 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.

  1. Information is answer

Any information that a noncitizen 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 noncitizen’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 noncitizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

  1. 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.

  1. Visa applications to be correct

A noncitizen 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.

  1. 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 noncompliance; 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 noncompliance:

(A) shows that there was compliance; and

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

(ii) if the holder accepts that there was noncompliance:

(A) give reasons for the noncompliance; 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 noncompliance 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.

  1. Decision about noncompliance

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 noncompliance by the visa holder in the way described in the notice.

  1. Cancellation of visa if information incorrect

(1) The Minister, after:

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

(b) considering any response to the notice about the noncompliance 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.

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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2019/1777.html