Lo (Migration) [2025] ARTA 2125 (2 July 2025)

Administrative Review Tribunal Act 2024 (Cth), s 106

Migration Act 1958 (Cth), ss 5(1), 97-105, 107-109, 501

Migration Regulations 1994, Schedule 2, cl 461.212; Schedule 4, Public Interest Criterion 4001; r 1.13

Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203

1. This is an application for review of a decision made by a delegate of the Minister to cancel the applicant's Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa under s.109(1) of the Migration Act 1958 (Cth) (the Act).
2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in the application for the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
3. I have considered the Departments decision record, and the Notice of intention to consider cancellation of the applicant's visa, the submissions of the applicant's representative in response to the Notice. I have considered relevant case law. I am satisfied that s.106(3) of the Administrative Review Tribunal Act 2024 applies in this review, as the only parties to the proceedings are the applicant and the Minister who is a nonparticipating party, that the Tribunal will make a decision that is wholly in favour of the applicant, and that it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties. Accordingly I have decided to make a decision in the proceeding without a hearing pursuant to s.106(1) of the Administrative Review Tribunal Act.
4. The applicant was represented in relation to the review.
5. The following are the written reasons that the Tribunal has concluded that the decision to cancel the applicant's visa should be set aside.

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. 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. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in that the applicant provided incorrect information in his answer to question 32 on page 11 of the visa application form.
2. Question 32 on the application form, according to the Department's decision record is "Have you, or any of the secondary applicants included in this application, ever: been associated with a person, group or organisation that has been / is involved in criminal conduct?" The applicant recorded the answer "no".
3. It is not in dispute that the applicant's father was extradited by US law enforcement and charged with offences in Fiji in relation to passport fraud.
4. The applicant denies giving an incorrect answer to question 32 when he recorded his answer of "No". In the Department's decision record dated 16 April 2025, the delegate concludes the applicant had been associated with a person who had been involved in criminal conduct, as the applicant's father had been involved in criminal conduct prior to the applicant lodging his visa application.
5. I am mindful of the definition in the Migration Regulations 1994, reg 1.13 which defines "meaning of associated with" as including persons who are spouses, members of the same family, had a family like relationship, belong or belong to the same social group, unincorporated association or other body of persons, have common friends or acquaintances, if one is a consultant, advisor, partner, representative on retainer, officer, employer or employee of the other, any corporation or body in which the other is or was involved in this (including as officer employee or member), a third person is or was a consultant, advisor, partner, representative on retainer, officer, employee, employer or member of both of them, related by bodies corporate, one is or was able to influence or control the other, or a third person is or was able to influence or control over both of them. The regulation does not specify that this definition applies to the interpretation of questions in a visa application form. The regulation does not specify that this definition applies to the interpretation of association with a person, group or organisation involved in criminal conduct.
6. I have also considered the submissions of the applicant's representative, and the statutory declaration of the applicant. I am satisfied that the applicant has never been involved in any crime and was not involved in the criminal activity of his father. I am satisfied the applicant has provided a police clearance certificate that confirms he has never been convicted of an offence.
7. The wording of question 32 is directed to asking the visa applicant if they have been associated with a person, group or organisation that has been or is involved in criminal conduct. I accept that the judgement and decision of the Full Court of the Federal Court of Australia in the matter of the Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 is of assistance in this review. The judgement was assessing the appropriate interpretation of the use of the word association in s.501(6)(b)(i) of the Act. Section 501 applies to the refusal or cancellation of visas on character grounds, and s.501(6)(b)(i) sets out a character test where the Minister reasonably suspects the person has been or is a member of a group or organisation, or had or has an association with a group, organisation or person and the group, organisation or person has been or is involved in criminal conduct.
8. The judgement of the full Court referred to the principles of common law concerning the interpretation of statutes in circumstances where the rights of individuals may be adversely affected. The judgement found that a narrower interpretation was therefore preferable, and the use of the word "association" in s.501(6)(b)(i) is to be interpreted as the person must have sympathy with, support for, or involvement in, the criminal conduct of the group, organisation or person with whom the visa applicant or holder is said to have associated with.
9. I have also considered, as an aid in interpretation of the use of the words "been associated with" in question 32, the definition of the word "associate" in the Collins English Dictionary. Association is defined as a group of people having a common purpose or interest, or a society or club, or the act of association, or friendship or companionship. Associate is to link or connect in the mind or imagination, or a person joined with another or others in an enterprise or business etcetera, or to keep company and mix socially with, or to express agreement or allow oneself to be connected (with).
10. I am satisfied that the definition in the Collins English Dictionary does not indicate that to associate with means to be the child of, or family member of, another person. I am satisfied that the ordinary or common use of the word associate does not include being the child of, or family member of, another person.
11. I am satisfied that the judgement of the Full Court of the Federal Court of Australia in Haneef is a guide to the Tribunal that I should apply the common law principles in the interpretation of the use of the phrase "been associated with" where the rights of the visa applicant may be adversely affected. It is appropriate that the common or ordinary meaning of the phrase be used. The Full Court of the Federal Court of Australia found in its interpretation of the word "association" in 501(6)(b)(i) requires a finding that the person had sympathy with, support for, or involvement in the criminal conduct of the group, organisation or person that it was said that associated with. Similarly the Tribunal concludes that the question on the application form asking if the visa applicant has been associated with a person, group or organisation that has been or is involved in criminal conduct, should correctly be given a narrower interpretation. I am satisfied that it is appropriate the question be interpreted as asking if the visa applicant has had an association that involves some sympathy with, some support for or some involvement in the actual criminal conduct of a person, group or organisation that has been or is involved in criminal conduct.
12. If the Department intends to ask a person on a visa application form if they have any family members who have been involved in criminal conduct, the question needs to be asked directly and clearly. Question 32 does not ask an applicant to record if he or she has any family members who have been involved in criminal conduct. I am of the view that question 32 must be interpreted narrowly and on its clear meaning for a person completing the form. This is particularly important if an answer is to subsequently be relied on to adversely affect a visa applicant in the circumstances similar to the issues to be determined in this review.
13. For the above reasons I am satisfied that the applicant did not provide an incorrect answer to question 32 on the application form. I am satisfied that the applicant correctly answered that he had not been associated with a person, group or organisation that has been, or is involved in criminal conduct.
14. I am therefore satisfied that the applicant has not provided an incorrect answer in his application for the visa. I am satisfied that there has not been non-compliance with s.101(b).
15. 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.
16. 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.

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa.

Representative for the Applicant: Mr Harshdeep Singh (MARN: 1577093)

(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.

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).

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.

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 ART, 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.

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.

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.

(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 [written][] 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:

(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:

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

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

of the visa application form under the heading of character (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.

[(1C) The notice under subsection (1) must be given in the prescribed way. ][]

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

(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.

1. Cancellation 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;

(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.

[] This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)

[] This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)