When Is an Answer "Incorrect" on a Visa Application? Federal Court Clarifies the Difference Between Wrong and Misleading
Federal Court decisions shape how the Department of Home Affairs (DoHA) and the Administrative Appeals Tribunal (AAT) must interpret and apply migration law. When the Court identifies legal error in a Tribunal decision, it establishes binding principles that benefit all visa applicants facing similar circumstances. The decision in this 2017 case provides crucial guidance on visa cancellation under section 109 of the Migration Act 1958 (Cth). This case clarifies what constitutes an "incorrect" answer on a visa application form—a question with significant consequences for thousands of applicants who complete online visa applications with limited dropdown menu options.
How Can Court Decisions Benefit Visa Applicants?
When the Federal Court identifies jurisdictional error in a Tribunal decision, it does more than resolve an individual dispute. The Court's reasoning becomes a shield that protects future applicants from the same legal mistakes being made against them.
In this case, the Court's findings establish that:
Decision-makers cannot cancel visas based on answers they consider "misleading" when the statutory test requires proof that the answer was "incorrect".
Where a visa application form offers multiple options that could truthfully apply, an applicant does not give an "incorrect" answer by selecting one truthful option over another.
The meaning of terms like "married" in visa application forms must be determined by reference to Australian law, not the applicant's subjective view or "practical reality".
These principles now bind the Department, the Tribunal, and future courts—meaning applicants facing cancellation proceedings can rely upon them.
What Were the Facts of This Case?
The Applicant's Immigration History
The applicant was an Egyptian citizen who first arrived in Australia in March 2003 on a Prospective Marriage (Subclass 300) visa. He married his Australian sponsor in May 2003 and was subsequently granted a Subclass 820 provisional partner visa.
While still legally married to his first wife under Australian law, the applicant returned to Egypt in 2004 and entered into a second marriage under Egyptian law. In 2006, he was granted a permanent partner visa based on his relationship with his first wife. The applicant and his first wife divorced in November 2007 by order of the Federal Magistrates Court of Australia.
The Resident Return Visa Application
In November 2012, the applicant applied online for a Resident Return visa (RRV) (Subclass 155). When completing the application form, he was required to answer a question about his "Relationship status" by selecting one option from a drop-down menu.
The available options were:
Divorced
Engaged
De Facto
Married
Never Married
Separated
Widowed
Critically, the online form allowed only one answer. The applicant selected "divorced."
A pop-up explanation accompanying the form provided definitions for each option. "Married" was defined as: "You and your partner have entered into a marriage which is legally recognised and documented." An asterisked footnote stated: "Same-sex partners legally married overseas are not recognised as being in a valid marriage by the Marriage Act 1961 and therefore can only be recognised as being de facto partners."
The Cancellation Decision
The visa was granted in December 2012. However, in August 2014, the Department issued a notice of intention to cancel the visa, alleging non-compliance with sections 101 and 104 of the Migration Act.
The Department's delegate took the view that the applicant's answer of "divorced" was incorrect because the "correct answer" was that the applicant was "both divorced and in a de facto relationship" with his Egyptian wife, even though the form only permitted one selection.
The Tribunal, on review, affirmed the cancellation, but on different grounds. The Tribunal found that the applicant was "legally married under Egyptian law" to his second wife at the time of the application. Therefore, the answer "divorced" was incorrect because the "correct" answer was "married."
Did the Federal Circuit Court (FCC) Accept the Tribunal's Reasoning?
The Federal Circuit Court (FCC) dismissed the applicant's judicial review application. The primary judge held that the question about "relationship status" was "not a question determined by strict legal definitions but by practical reality."
On this basis, the Court below found that because the applicant was, as a matter of practical reality, in a marriage with his Egyptian wife, his answer of "divorced" was incorrect.
What Did the Federal Court Decide on Appeal?
Her Honour Justice Perry allowed the appeal and found the Tribunal had committed a jurisdictional error. The Court's reasoning addressed 3 critical issues.
Does "Married" in the Visa Form Refer to Australian Law?
Yes. The Court held that the answer "married" in the online visa application form refers to a marriage that is legally recognised under Australian law.
This construction was confirmed by the pop-up explanation accompanying the form, which stated that "married" means a marriage that is "legally recognised and documented." The asterisked footnote—noting that same-sex marriages performed overseas are not recognised under the Marriage Act 1961—put the matter "beyond doubt."
Under section 88D of the Marriage Act, a marriage is not recognised as valid in Australia where either party was, at the time of that marriage, already a party to a marriage recognised in Australia because the applicant was still legally married to his first wife under Australian law when he married his second wife in Egypt, that Egyptian marriage was not recognised under Australian law.
The Court rejected the Federal Circuit Court's finding that relationship status was determined by "practical reality" rather than legal definitions. To the contrary, the form itself required applicants to reach a view as to whether their marriage was recognised under Australian law.
Was the Tribunal's Approach to "Incorrect" Answers Lawful?
No. The Court found the Tribunal fell into jurisdictional error by assuming there was only one correct answer and by effectively making a finding as to what was the "most correct" answer.
Section 101 of the Migration Act requires that "no incorrect answers are given or provided." The statutory question is simply whether the answer given was incorrect—not whether it was the best answer, or whether another answer would have been more correct.
The Tribunal's finding that the applicant's answer was "at the very least misleading" revealed its error. The legislative history confirmed this approach was wrong: the predecessor provisions referred to statements that were "false or misleading," but Parliament deliberately replaced this language with the simpler term "incorrect." As Gray J observed in this case, this change suggests that whether an answer complies with section 101 "is to be assessed on what is in, rather than what is omitted from, the answer."
Can an Answer Be "Misleading" But Not "Incorrect"?
Yes. The Court confirmed that a finding that an answer is "misleading" does not equate to a finding that it is "incorrect" for section 101.
The Tribunal found the applicant "did not declare his correct relationship status"—but that finding was made in the context of assessing whether the answer was "misleading" or only "technically" correct. Such findings do not establish the jurisdictional fact required to enliven the power to cancel under section 109.
The discretion to cancel a visa under section 109 is only engaged where the decision-maker has first decided under section 108 that there was non-compliance with section 101. That requires a finding that an incorrect answer was given—not merely that the answer was misleading, incomplete, or less than optimal.
What Problems Does This Case Reveal About Online Visa Forms?
Justice Perry expressly acknowledged that the case "illustrates the difficulties which can result where the multiple choice answers posed by drop-down menus and accompanying pop-up explanations in online forms may be inadequate to accommodate the complexity of individual circumstances which may in fact arise."
The Court identified a fundamental tension in the visa application form:
The pop-up instructions directed applicants to "select the term that best describes your relationship status from the list provided"
Section 101 requires only that no "incorrect" answer be given
These are different standards. A decision-maker might conclude that an applicant has not selected the "best" description of their relationship status, but that does not mean the applicant has given an incorrect answer in contravention of section 101.
Where the dropdown menu forces applicants to choose a single answer when multiple answers might truthfully apply, an applicant who selects one correct answer cannot be said to have given an "incorrect" answer merely because another answer might have been "better."
How Can You Protect Your Visa?
If you are facing visa cancellation under section 109, or have received a notice of intention to consider cancellation (NOICC) alleging non-compliance with section 101 or 104 of the Migration Act, the precise legal analysis of what constitutes an "incorrect" answer may determine whether the cancellation power is validly enlivened.
Do not assume that because a delegate or the Tribunal has found your answer "incorrect" that this finding is legally sound. The decision in this case demonstrates that even experienced decision-makers can misapply the statutory test.
A careful review of the visa application form, the explanatory materials, and the decision-maker's reasoning may reveal that no incorrect answer was in fact given—or that the decision-maker has applied the wrong legal test.
Applicants facing cancellation or character issues should consult an immigration lawyer to prepare comprehensive submissions. A professional can help identify permissible evidence, address statutory criteria and avoid arguments that the decision-maker cannot legally entertain.
How Can Agape Henry Crux Help You
Every visa cancellation matter turns on its specific facts and the precise wording of the relevant application form. If you have received a notice of intention to cancel your visa, or if your visa has been cancelled and you are considering a review or appeal, speak to an Accredited Specialist in Immigration Law without delay for tailored advice to your case before it is too late. You can book a Migration Planning Session to schedule a time with one of our immigration lawyers to seek professional advice by calling 02-83105230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
Client Testimonials
….we call it Support Network
Navigating the immigration law process may be difficult, so our former clients have agreed to share their experiences through telephone chats, emails, and in-person meetings.
These are their stories…
