1801591 (Migration)

[2019] AATA 1361

1801591 (Migration) [2019] AATA 1361 (20 March 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801591

MEMBER:Karen Synon

DATE OF DECISION:  20 March 2019

DATE CORRIGENDUM

SIGNED:18 June 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The decision date at the top of decision says 20 March 2018 and the bottom of the decision reads 20 March 2019.

Karen Synon
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801591

MEMBER:Karen Synon

DATE:20 March 2018

PLACE OF DECISION:  Melbourne

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

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

Statement made on 20 March 2019 at 3:52pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – incorrect information in visa application – genuineness of the position – site visit conducted by Department – intention of applicant to take up nominated position – long delay before applicant notified by Department that position not genuine – conduct after arriving in Australia – genuine effort to commence in nominated position – Tribunal not satisfied that non-compliance was as described in s107 notice – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 109, 137Q, 140
Migration Regulations 1994 (Cth), Schedule 4, PIC 4013

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 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the first named applicant provided incorrect information in support of her ENS Direct Entry (ENS 186) visa application.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 19 March 2019 to give evidence and present arguments.  The Tribunal also received oral evidence from the applicant’s husband, [Mr A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.

   Jurisdiction of secondary applicants

5. 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.  The Tribunal explained this during the hearing and invited the applicant to make any responses.  The applicant said she has a concern regarding her daughter will not be able to go to school for three years if the visa is cancelled.  The Tribunal explained that a consequential cancellation means that what happens in relation to her visa and this review process will also apply to her husband and her daughter.  Invited to make any further comments the applicant declined to do so.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and that it has no jurisdiction in relation to the second and third named applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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?

10. 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 section 101 – visa applications to be correct - in the following respects:

    Section 101 – Visa applications to be correct

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

    …(b) no incorrect answers are given.

11. The breach of s.101(b) relates to an ENS Direct Entry (ENS 186) visa which was granted on 1 July 2016.

12. By operation of section 99 of the Act:

    Information is answer

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

13. The section 107 notice is dated 16 November 2017 and relevantly sets out:

    EVIDENCE – FORM – APPLICATION FOR PERMANENT EMPLOYER SPONSORED OR NOMINATED VISA

    [The applicant] applied for a class ENS Direct Entry (Web)(EN 186) visa on 15 April 2016 and within the application form you provided the following information:

    …Nomination details:
    Give details of related nomination:

    Reference number type: “Nomination TRN”
    Transaction reference: [number]
    ENS/RSMS Declarations:

    Agree to take up the position for at least two years: “Yes”

    EVIDENCE – FORM – APPLICATION FOR PERMANENT EMPLOYER SPONSORED OR NOMINATED VISA

    In support of the nomination application TRN[number] the visa holder’s sponsor provided the following information:

    Legal registered name: “[Company 1]” Trading name: “N/A”
    Industry type: “Other Services”

    Date established or commenced trading in Australia: “29 Aug 2014”

    Work location postcode:

    Give details of the postcode where the nominated person will be employed

    Postcode: “3004”

    Head Office address:
    Give details of the postcode of the business/organisation’s head office in address

    Country: “Australia”
    Address: “Level 5, [business address]” Suburb/Town: “Melbourne” State/Territory: “Victoria” Postcode: “3004”

    Employment

    Of the Australian operations of the business/organisation, what is the total number of Australian employees: “8”

    [The applicant’s] sponsor provided an organisational chart, detailing the structure of the business and its eight employees

    [The applicant’s] sponsor provided a lease agreement entitled Lease Contract” which provided that [Company 1] would lease Level 5, [business address], Melbourne, Victoria, 3004 from 08 September 2014 for a three year period.  The sublessor on the lease is [Company 2].

    The nomination application TRN[number] was approved by a departmental delegate on 09 May 2016. On the basis of all of the information provided, the delegate was satisfied that the nomination application met all relevant criteria, including Regulations 5.19(4)(d)(i), and 5.19(4)(h)(i) of the Migration Regulations 1994 (‘the Regulations’)…

    On 01 July 2016 a departmental delegate decided to grant the visa holder a class EN subclass 186 Employer Nomination Scheme (Direct entry) visa. On the basis of all of the available information, the delegate was satisfied that the visa holder’s application met the criteria for grant of the visa, including Regulation 186.223 of the Regulations…

    Following the grant of the visa the Department of Immigration and Border Protection has received the following information:

    A site visit was conducted by officers of the Department of Immigration and Border Protection on 18 August 2016 at Level 5, [business address], Melbourne, Victoria, the business location of [Company 1].  The business directory on the ground floor indicated a business by the name of “[Company 3]” occupying level 5.  A representative from [Company 3] on level 5 stated there was no business by the name of [Company 1] operating on level 5.

    On 29 August 2016, a representative of [Company 3] on Level 5, [business address], Melbourne, Victoria, was interviewed by an officer of the Department of Immigration and Border Protection by telephone.  The representative advised that [Company 2] leased Suite 6, Office 527, from their company, [Company 3].  The representative advised that the suite leased by [Company 2] can accommodate at the most, three workstations and they had not seen anyone use the suite for at least two months.

    The above information indicates that the position of Managing Director (CEO), [Company 1], managing seven people, located at Level 5, [business address], Melbourne, Victoria, in which you were nominated to work by your sponsor in nomination TRN[number] (and upon which the you relied to satisfy the requirements for grant of the Employer Nomination Scheme visa) did not, at the time of the grant of the visa, genuinely exist.

    PARTICULARS OF THE POSSIBLE NON COMPLIANCE

    Given the evidence outlined above, I consider that you have not complied with section 101 of the Act because you have provided incorrect information to the questions in your application for a ENS Direct Entry (Web)(EN 186) visa as follows:

    Agree to take up the position for at least two years: “Yes”.

    I consider it appears this answer is incorrect because the information received by the Department indicates that the position of Managing Director (CEO), [Company 1] managing seven people, located at Level 5, [business address], Melbourne, Victoria, did not genuinely exist…

    Furthermore the suite leased by [Company 1] at Level 5, [business address], Melbourne, Victoria, can accommodate at the most, three workstations and the suite had not been used for at least two months up to 29 August 2016…

14. The applicant was invited to respond and address any matters she thought relevant within 14 calendar days of the Section 107 Notice.  A submission was received in response in which the following relevant comments were made:

    ·The Primary Applicant…is a Manager before she came to Australia. She graduated with a Bachelor Degree in [Discipline 1] in 1990.  She also holds a Bachelor degree of [Discipline 2].

    ·From 1990 to 2011, PA worked for [Company 4] and functioning as a salesperson.   Later, she worked for [Company 5] as a General Manager.

    ·The Business PA intend to work for is [Company 1].

    ·[Ms B] and [Mr C] registered the company under the name of [Company 1] on 29/08/2014. [Ms B] has been the one of the directors and holds 100 percent share of [Company 1] since 29/08/2014.  Please find the current ASIC search result as listed below:

    ACN: [number]
    ABN: [number]
    Business next review date: 29/08/2018

    Business registered address: [Address]

    ·The PA is overseas when submitting the application and at the time of application, no incorrect answers were given: s.lOl(b).

    ·At the time of application, the PA truly has the intention to take up the position for at least 2 years and she answered "Yes" to his question, which shows the PA has indeed complied with section 101 at the time of her application, which fundamentally states that the PA has answered all questions asked within her application form as well as provided no incorrect information on her application form.

    ·According to the PA, she has no idea how the sponsor answered the questions in the evidence form, which is out of her control.

    ·When (sic) arrived in Australia, the PA has also found difficulty in making a smooth transition to settle in Australia.  It is due to the fact that on top of her duties as an employee, she also has to take care of her [age] year old child, who is currently trying to settle into the foreign environment of high school within Australia, which although similar, carries vast differences in its education system to the ones in China, which divides her attention from the business as she needs to take care of her child, which is something she also has to places priority.  She is also suffering high stress level in seeking communication with her previous agent as well as the sponsor.

    ·In addition, the applicant also has numerous assets within Australia, such as her current place of residence within Australia, which would potentially be lost should her visa be cancelled.

    ·Overall, the applicant should not have her visa cancelled as she has technically complied to section 101 and has valid and compelling reasons as to why her visa should not be cancelled such as the unforeseeable circumstances of the employer's business, the state of her daughter's education, as well as her current and available assets here in Australia.

    ·Due to limited time, the PA hasn't provided the answers towards the further inquiries regarding the applicant's employer's business and how in truth, it has not violated what has written on the application form, and any and all violations made was completely out of the PA's control and unintentionally caused, which she cannot be faulted upon.

15. The delegate considered the response provided and decided to cancel the applicant's Subclass 186 visa on the basis that she had provided incorrect information in her visa application.

16. Before the hearing, on 9 March 2019 a submission and a number of supporting documents were provided.  Relevantly, the submission contended:

    The visa was cancelled on the grounds that [the applicant] did not comply with section 101(b) of the Migration Act 1958 when she lodged the application for a class EN subclass 186 Employer Nomination Scheme (Direct Entry) visa.

    I believe that [the applicant] did not breach the section 101(b) of the Migration Act 1958 by providing incorrect information for her application for the class EN subclass 186 Employer Nomination Scheme (Direct Entry) visa. Although her sponsor has provided incorrect information for its related nomination application, this situation was not controllable by [the applicant].

    We would like to request that the Public Interest Criterion 4013 be waived in this case, as [the applicant’s] two-and-a-half-year visa application process was genuine.

    Please refer to the following for the details of the whole process:

    1)On 01/07/2011 [the applicant] started working as assistant to the General Manager and Sales Manager of [Company 5].  The main business of this company is maintenance of VAT invoice generating systems, software development, sales of computer hardware, network construction and system integration and maintenance.  After joining this company, she quickly made herself familiar with the company’s daily management processes and main areas of business.  She had a team that she actively led, finding opportunities in the market and maintaining good relationships with clients.  The sales in the company gradually increased, the profits also increased substantially.

    2)From the end of 2012, [the applicant] was in charge of much of the work of the General Manager.  She therefore gained a lot of experience in business management.

    3)By the end of 2013, she started thinking of a new challenge for her career. She wanted to go abroad to experience a different life. She was hoping not only to enrich her life experience, but also further improve her business management skills.

    4)On 17/02/2014, [the applicant] was introduced to Mr [D] from [Company 6] by a friend.  Mr. [D] told her that his company could help her find a role in Australia so that she could fulfill (sic) her dream of going abroad.  She gave him her resume and details of work experience and family.  The company promised her that they would contact her when they found a suitable employer.

    5)On 08/10/2014, [Company 6] provided her with information of an Australian company [Company 1].  [Company 1] was a newly established company, looking to recruit a General Manager.  Its main business was software development for remote networking applications, network applications and services, which was similar to the company that she was working for at that time.  When she read through all the information related to the role, she was confident that she would be a good fit for both the role and the company.

    6)On 15/10/2014, [Company 6] informed [the applicant] that [Company 1] would conduct a telephone interview with her on 24/10/2014.

    7)On 24/10/2014, they had the telephone interview.  The interviewer was a lady named [Ms E].  During the interview, [Ms E] asked [the applicant] about her education and work experience, her current work and her family background.  The interview lasted about one hour.

    8)On 08/12/2014, [Company 6] asked [the applicant] to provide a more detailed resume and scanned copies of related certificates to them.  They also requested that she come to their office on 18/12/2014 11:00am (Melbourne time 2:00pm) to have a video interview with [Company 1].

    9)On 18/12/2014, they had the video interview and the interviewers were [Ms E] again and the owner of [Company 1].  [The applicant] was asked in detail about her current role and the company’s business and operations, and daily management processes.  She was then asked of her opinion about [Company 1] and if she had any suggestions as to how to develop the business and potential development strategies for the next few years. She was also asked about arrangements for her husband and daughter when she came to Australia.  The video interview also lasted for about an hour.

    10)On 01/01/2015, [the applicant] was promoted to the role of General Manager of [Company 5].

    11)On 20/03/2015, [Company 6] informed [the applicant] that [Company 1] would like to employ her.

    12)On 23/03/2015, [the applicant] signed a contract with [Company 6] authorizing them to apply for Subclass 186 visa on her behalf.

    13)On 27/10/2015, [the applicant] signed the employment agreement, for the role of Managing Director (CEO) of [Company 1].

    14)On 20/11/2015, [the applicant] was informed that the sponsor’s nomination application was submitted.

    15)On 19/04/2016, [Company 6] informed her by email that they had submitted her visa application to DHA on 15/04/2016.

    16)On 09/05/2016, [the applicant] received two emails from [Company 6]. In the first email, they informed her that the sponsor’s nomination application was approved.  In the second email, they forwarded her a letter for all three family members to attend a health examination.

    17)On 11/05/2016, [Company 6] informed her of the time and location for the health examination appointment.

    18)On 21/05/2016, [the applicant], her husband and her daughter attended their health examination appointment.

    19)On 01/07/2016, [Company 6] informed [the applicant] by phone that the Subclass 186 visa had been granted.

    20)On 04/07/2016, [Company 6] sent the grant notification for [the applicant’s] Subclass 186 visa to her by email.

    21)After the visa was granted, [the applicant] and family began preparing for their move to Australia. She also began arranging for the handover of her role at [Company 5].

    22)On 28/10/2016, [the applicant] resigned from her position as General Manager at [Company 5] in anticipation of her move to Australia.

    23)On 30/10/2016, [the applicant] decided that the whole family would move to Melbourne together.

    The family then sold their property in Shanghai, for RMB 3,450,000.00:

    oOn 30/10/2016, they received the deposit of RMB 100,000.00.

    oOn 30/12/2016, they received RMB 1,250,000.00. In order to receive this payment, [the applicant’s] husband had to return to China.

    oOn 05/04/2017, they received the remaining RMB 2,100,000.00 for which [the applicant’s] husband had to return to China again.

    24)On 11/11/2016 [the applicant’s] daughter stopped attending school in Shanghai.

    25)On 27/11/2016 [the applicant] her husband and her daughter arrived at Melbourne together, initially staying at a hotel.

    26)On 28/11/2016  [the applicant] sent an SMS to [Mr F], who is [Company 6]’s representative in Australia, to make an appointment to meet him at his office the next day (before [the applicant] had left China, [Company 6] informed her that [Mr F] would be her contact person in Australia and that his mobile number was [number].

    27)On 29/11/2016 [the applicant] met [Mr F] at [address], where the Melbourne office of [Company 6] is located.  [Mr F] introduced his colleague Mr [G] to [the applicant] and informed her that Mr [G] would be in charge of contacting [Company 1] for her.

    28)Mr [G] asked [the applicant] to provide copies of documents and certificates so that he could help her apply for a Tax File Number.  He told her that the employer was about to move to a new office which was currently under renovation and that he would inform her when she should start work.  He also said that she should rent a house, enroll (sic) her daughter in school and open bank accounts and a superannuation account.

    29)On 6/12/2016 [the applicant] and family moved to a rented property at [address].

    30)In the following two weeks, [the applicant] went to meet Mr [G] at the office once a week to ask him for assistance with enrolling in Medicare and enrolling her daughter in school.  She also asked him when she can start work and was told that it was unlikely for her to start before Christmas.

    31)On 16/12/2016, the applicant went to the office again to ask if they had a start date for work yet.  Mr [G] made a phone call to the person in charge of the company.  When he finished the call, he told [the applicant] that the company would be closed for business from 19/12/2016 to 02/01/2017 and that he would call her on 02/01/2017 with an update.

    32)On 02/01/2017, Mr. [G] called [the applicant] and informed her that her task for the following two weeks would be contacting and reconnecting with her previous clients in China.  [The applicant] was to tell her previous clients that she had started working in Australia and that she should introduce [Company 1]’s internet based remote access services.  Mr [G] also asked her to take notes for those phone calls.

    33)On 13/10/2017 [the applicant] received her first of several salary payments from [Company 1].  Later salary payments were also made to her, but often not on time.  [The applicant] visited the contact office to enquire about progress on the office and was informed that the office was still under renovation, and that she should continue working from home.

    34)The salary [the applicant] received was as follows:

Payment Number	Payment due date	Actual payment date	Payment amount	Payment in arrears
1	13/01/2017	13/01/2017	4,674.58	0 day
2	27/01/2017	06/02/2017	4,674.58	-10 days
3	10/02/2017	21/02/2017	4,674.58	-11 days
4	24/02/2017	03/03/2017	4,674.58	-7 days
5	10/03/2017	15/03/2017	4,674.58	-5 days
6	24/03/2017	27/04/2017	4,674.58	-34 days
7	07/04/2017	19/05/2017	4,674.58	-42 days
8	21/04/2017	01/06/2017	4,674.58	-41 days

35)The above salary payment details, we can tell that the company did not pay her on time every fortnight.

36)From 01/2017 to 04/ 2017, [the applicant] worked diligently for the company from home.  Although her salary was not paid on time, which was an inconvenience, [the applicant] understood that the company was in the middle of renovation and setting up their new office. [The applicant] looked forward to moving into the new office and meeting the team, but Mr [G] just asked her to wait patiently.

37)After 21/04/2017, Mr [G] did not give her any new tasks.  By that time, [Company 1] was three salary payments in arrears, specifically payments due on 24/03/2017, 07/04/2017 and 21/04/2017.

38)In May 2017 [the applicant] called Mr [G] many times to ask him to give her new tasks.  By this time, she became concerned that her role would not continue much longer and voiced these concerns to Mr [G] who then asked her to wait a bit longer, as the person in charge of the company was very busy, and would meet her soon.

39)On 13/05/2017 [the applicant] signed the sales contract for her family home and settled on 21/07/2017.

40)On 01/06/2017 [the applicant] received her final salary payment from the company.  After that, she was unable to contact [Mr F] or Mr [G].  [The applicant] called [Company 6] in China, who passed their Australian lawyer [Miss H]’s contact details to her (contact number: [number]), however, [the applicant] was unable to reach this lawyer.  [The applicant] then immediately called [Company 6] again, but the person in charge of her case had left the company.  Other staff of [Company 6] said that they knew nothing about [the applicant’s] case and were unable to provide assistance.

41)At that point [the applicant] felt her situation was helpless and lived with uncertainty for several months.  She began to think that perhaps she had been scammed by her agent and the employer and did not know who to turn to for help.  She decided to give up trying to contact [Company 1] and [Company 6] and just wait to see what would transpire.

42)On 16/11/2017 when [the applicant] received the Notice to Consider Cancellation of her visa from the DHA.  She immediately contacted the migration agent [Company 6] that she had originally engaged to obtain her job and visa, however they still refused to assist her.  [The applicant] was not able to locate or contact [Company 1] or anyone involved in Australia.  In despair, [the applicant] entrusted migration agent [Company 7] to represent her case.

43)On 4/12/2017, [Company 7] wrote a simple reply to the DHA that did not adequately or competently address the questions raised by the DHA.  It’s clear that the agent did not have a full understanding of her case and the agent only had 14 days to respond to DHA… It should be immediately clear to anyone who reads that letter (including and especially the DHA) that [the applicant’s] family, although represented by a Registered Migration Agent unfortunately did not receive competent advice or representation in this case, leaving [the applicant] and family in a very vulnerable situation.

44)On 18/01/2018 [the applicant] received a letter from DHA advising that the Subclass 186 visa was cancelled.  The reason for cancelation was the noncompliance of the employer.  Until now, [the applicant] still has no idea (and remains curious) as to what happened to her employer as she had never met him face to face.  This is also partly why she chose to appeal to the AAT.

45)On 31/01/2019, [the applicant] appointed myself as her migration agent.

46)On 01/02/2019, I lodged an FOI request for the employer nomination application materials as we needed to go through all the information about the employer.

47)On 26/02/2019 I sent an email to DHA follow up on the FOI process, however, we still have not received our requested documents from DHA.

48)The following is a time-line of key events relevant to [the applicant’s] case:

End of 2013	{The applicant] decided to look for a job overseas
17/02/2014	She met the migration agent [Company 6]
27/10/2015	She signed the employment agreement with [Company 1] through the migration agent
20/11/2015	Sponsor nomination application is submitted to DHA
15/04/2016	Visa application is submitted to DHA
09/05/2016	Nomination application approved
01/07/2016	Visa Granted
18/08/2016	DHA conducts site visit on premises of the employer, [Company 1]
27/11/2016	[The applicant] arrives in Australia
02/01/2017	She began her employment
13/02/2017	Her daughter began year 10 in Australia
13/05/2017	[The applicant] purchased the family home in [Suburb 1], Victoria
21/07/2017	Family home is settled
16/11/2017	DHA issues Notification of Intention to Consider Cancellation of Visa
04/12/2017	Migration agent [Company 7] sent a reply on behalf of [the applicant] regarding the Notification of Intention to Consider Cancellation of Visa to DHA
18/01/2018	DHA cancelled [the applicant’s] visa

49)From  key events in the time-line it can be readily seen that:

On 18/08/2016, some three months before [the applicant] even arrived in Australia, the DHA Case Officer conducted a site visit at the premises of her employer, conducting an investigation that resulted in cancellation of the visa.  The DHA Case Officer then waited until 16/11/2017, a further 12 months, before notifying her of their intent to consider cancellation of her visa.

50)In total 15 months elapsed from the time the investigation was conducted until notifying [the applicant], during which time, she, along with her husband and her (at the time) [age] year old daughter, had developed significant ties within Australia, including her daughter completing Year 10, and purchased the family home.  [The applicant’s] daughter is currently half-way through her Year 12 Victorian Certificate of Education.

51)[The applicant] in good faith, moved to Australia, purchased a family home at a cost of $1,200,000 of which $960,000 was financed by mortgage, all the time unaware that not only was her visa in jeopardy, but in fact, an investigation leading to cancellation had concluded months before she and her family had even arrived in Australia.

52)From the time DHA conducted its site investigation until issuing the Notification of Intention to Consider Cancellation of Visa, 15 months later, [the applicant’s] family had, in good faith, done the following:

o   28/10/2016, [the applicant] quit her position as General Manager at [Company 5]

o   30/10/2016, she sold her home in Shanghai

o   11/11/2016, [the applicant’s] daughter stopped attending school in Shanghai

o   27/11/2016, her family arrived in Melbourne

o   02/01/2017, [the applicant] started her job

o   13/02/2017, her daughter started school (Year 10)

o   13/05/2017, [the applicant] purchased the family home in Australia

o   21/07/2017, she settled her home in Australia, incurring a $960,000 mortgage

o   11/2017, her daughter completed Year 10 of secondary study

53)[The applicant] would have at least had a chance to re-evaluate these plans if the DHA had informed her that there was any kind of problem with the employer’s nomination following the onsite investigation on 18/08/2016.

54)From February 2014, when [the applicant] first planned to come to Australia, until 01/07/2016 when her visa was granted, 2 years and 5 months had passed.  This was a significant undertaking for her family and they achieved it.  [The applicant] was able to achieve this due to her previous work experience, her position as General Manager in China, her personal background and because her visa application was genuine.

55)I believe that the DHA assessments of both [Company 1]’s employer nomination qualification and [the applicant’s] visa application ensured that all requirements were satisfied before the department approved the nomination and visa application.

56)Obviously DHA was satisfied as to the legitimacy of the sponsor and approved their nomination application.  Likewise, [the applicant] trusted the migration company [Company 6] and [Company 1], and felt fortunate to get this job through the professional services provided by [Company 6].

57)Before [the applicant] became unable to contact Mr [G] or [Mr F], she had no reason to suspect that the information provided by the employer was not genuine.  All of the information provided by [the applicant] in the two-and-a-half-year visa application process was genuine.

58)[The applicant] had no doubt as to the legitimacy of [Company 1], as she spent 16 weeks introducing and marketing their product from home and received salary for [her] role with them.

59)The basis given by DHA for cancelling [the applicant’s] visa was that she had violated Section 101 (b) of the Migration Act, by providing incorrect answers in her application. However, [the applicant] answered all parts of her application truthfully, including her personal information, her work experience, her position as General Manager in China and details of her new role with [Company 1] in Australia.  It appears therefore that DHA cancelled the nomination solely due incorrect answers provided by [Company 1].

60)It is my sincere hope that your department is able to see that this terrible upheaval and uncertainty in [the applicant’s] family’s life was entirely unnecessary and was preventable if DHA had conveyed accurate information of their concerns about her employer to her in a timely manner.

61)In coming to a resolution in this case I would like you to consider the current situation of [the applicant], her daughter and her husband.

[The applicant’s] daughter’s current situation:

o   She is now a Year 12 student of [named school];

o   She has good academic results at school;

o   She has received an Academic Award at Year 11;

o   She is currently several months away from completion of her VCE and her objective is to get an offer from the University of Melbourne or Monash University;

o   She has integrated into life in Australia, attending extra-curricular activities such as camping trips organized by her school and high school socials with her friends;

o   [The applicant] is very grateful that her daughter, from the age of [age] until now, [age], an important stage in her development into an independent adult, was able to smoothly adapt to her school and new life in Australia.  This is a change that has suited her greatly;

o   Her ambition is to be able to make a positive contribution to Australian society after graduating from university;

o   The university entrance exam in Shanghai China is comprised of different exams from Year 10 to Year 12.  The accumulated scores in these three years’ exams entail the final requirements for university entrance.  If [the applicant’s] daughter had to re-transition back to China at this stage, university is no longer an option for her…

[The applicant’s] current situation:

o   On 18/01/2018 when [the applicant] was notified (sic) the cancellation of 186 visa, she discussed the situation with her daughter. Her daughter was very worried that she could not continue studying in Australia as she had completed Year 10 and was unable to return to Shanghai for university entrance exams; and

o   [The applicant] has concentrated on assisting her daughter and encouraged her, no matter how difficult the situation became, that she should keep positive and continue with her studies. She has done exactly that, and completed Year 11 with good results and is now several months from completing Year 12 of her VCE.

[The applicant’s] husband’s current situation:

o[The applicant’s] husband quit his role as managing director in his own company in China and gave up his career in China to accompany his family to Australia.

To conclude I ask that the AAT considers:

othe chain of events described above including the timeline where I have demonstrated how easily this situation could have been avoided with timely communication,

othe considerable financial investments that [the applicant’s family] have made here,

othat [the applicant’s] daughter is currently several months away from completion of Year 12 VCE,

othe vulnerability of the family,

othat the veracity of the information provided by [Company 1] to DHA for nomination application was completely out of [the applicant’s] control,

othat [the applicant] has acted with integrity at every stage of her visa application.

In consideration of the above, I would like to request the following:

othat Public Interest Criterion 4013 be waived in this case,

othat [the applicant’s] daughter be granted a Student Visa (Subclass 500) to allow her to complete her studies,

oand that [the applicant] be granted a Student Guardian Visa (Subclass 590) to accompany her daughter until she turns 18 years old on [date].

1. The following relevant documents were provided in support this submission:

   ·     Copies of documents provided in both Chinese with a translated copy of a contract between the applicant and [Company 6].  This is recorded as an agreement whereby the applicant commissions [the company] “as its agency to manage matters relating to Australia Employer Sponsored Skill Immigration 186 PR Visa application”.  This includes a schedule of fees.

   ·     A copy of the Employment Agreement on the letterhead of [Company 1], dated 27 October 2015 addressed to the applicant offering her the position of Managing Director (CEO) full-time for a period of two years with a salary of $182,000 plus 9.5% superannuation.

   ·     Advice that the employer’s nomination had been submitted.

   ·     Advice that the employer’s nomination had been approved.

   ·     Advice that the family’s medical records had been completed.

   ·     Advice of the grant notification and a receipt for the visa.

   ·     Very faint records of what appear to be receipts for payment for a total of RMB 34,50,000.00.

   ·     A translated certificate titled ‘Drop out of school Certificate’ confirming that the applicant’s daughter, then taking grade 10, had applied to drop out of school on November 11, 2016 because she was going to Melbourne to study.

   ·     Ten pages of Westpac bank records, recording deposits identified as “payroll”.

   ·     A copy of a Contract of Sale of Real Estate for a property in [Suburb 1] which was signed on 13 May 2017 by the applicant and the corresponding Particulars of Sale and supporting schedules including a Planning Certificate and a statement from South East Water.

   ·     A copy of the Notice of Intention to Consider Cancellation Notice dated 16 November 2017.

   ·     A copy of the submission that was provided in response to the NOITTA dated 4 December 2017.

   ·     A copy of the Department’s decision to cancel the applicant’s visa dated 18 January 2018.

   ·     A copy of an acknowledgement letter from the Department with a request for further documents.

   ·     Various documents recording the applicant’s daughter’s enrolment at [named school] including academic results, awards, school photographs and school social and camp information.

2. On 18 March 2019 a further submission was received which relevantly contended:

   I am writing to provide additional information for the above client’s hearing on 19 March 2019, regarding the decision to cancel her subclass 186 visa.

   When I discussed [the applicant’s] case with her last Friday, I found some new information that she had not provided to me before, nor did this information appear in her contract with the migration agent [Company 6].

   The details are as follows:

   1)[Company 6] assisted [the applicant] to find an employer in Australia and applied for the Subclass 186 employer-sponsored visa.  She signed a two year employment contract with annual salary package of AUD $199,290.00 (annual salary AUD $182,000.00 plus superannuation) which is equivalent to RMB 1,992,900.00 (AUD $199,290.00*2 years*exchange rate 5.00 = RMB 1,992,900.00) over two years.

   2)At that time, [Company 6] made it clear to her that they will charge her a migration service fee, job search fee and job agent fee as a percentage of her income in Australia, specifically 38% of the annual salary over two years, as their total fee was RMB 757,302.00 (RMB 1,992,900.00*38%=RMB 757,302.00).  [Company 6] also promised her that [Company 1] would renew her contract if she performs well, so she considered this condition to be fair.

   3)Although she agreed to this condition, she was still worried that her application may not be successful, so she discussed with [Company 6] and they came to an agreement consisting of written contract and what amounts to an oral contract.

   4)The service fee set out in the contract was RMB 360,000.00, consisting of:

   oImmigration service fee to [Company 6]: RMB 60,000.00

   oService fee to [Company 6] for assistance of Australian job agent in searching for employment: RMB 50,000.00

   oService fee to Australian job agent: RMB 200,000.00

   oService fee to Australian migration lawyer: AUD $10,000.00 (equivalent to approximately RMB 50,000.00).

   The contract states that if the visa is not granted, part of the service fee will be refunded to her.

   5)The oral part of the agreement required that if the is visa granted, [the applicant] must pay an additional RMB 397,302.00 to [Company 6].

   6)When [the applicant’s] Subclass 186 visa was granted on 01/07/2016, [Company 6] requested her to pay the balance of the service fee of RMB 397,302.00.  After receiving the payment, [Company 6] forwarded the visa grant letters to [the applicant] on 04/07/2016.

   7)After [the applicant] came to Australia, [Company 1] paid [the applicant], after tax, eight fortnightly payments of AUD $4674.58, a total of AUD $37,396.64, which is equivalent to RMB 186,983.20 (AUD $4674.58*8*exchange rate 5.00 = RMB 186,983.20).  They did not pay salary withholding tax and superannuation for her.

   8)In total, [the applicant] paid [Company 6] RMB 757,302.00 covering migration service fees and employment agent fee.  During her employment, [Company 1] paid her the AUD equivalent of RMB 186,983.20.

   9)In our explanation letter, we showed that [Company 1] paid [the applicant] eight times, often late, and by the six-month mark, they were not paying her at all.  She spent another five months looking for [Company 1], [Company 6] and the lawyer [Miss H], until she received DHA’s Notice of intention to consider cancellation of her visa.

   10)At this point [the applicant] finally understood, that regardless of whether or not the DHA considered [Company 1] legitimate, the scam perpetrated on her was successful.  It appears that the plan was to use those eight payments over six months to placate her, giving them enough time to disappear.  The amount paid by [the applicant] minus the amount paid to her by [Company 1] was RMB 570,318.80, well over AUD $100,000.00. She then spent a further few months looking for them and then gave up looking for them.

   11)To reiterate [the applicant] did not provide false materials to the DHA and is a victim in this case.

1. During the hearing the applicant explained her employment history.  She finished school in 1990 graduating with an Advanced Diploma of [Discipline 1] from [University 1] after completing her secondary schooling in 1988.  In July 2011 she commenced a job with [Company 5] rising to the position of General Manager.  When she commenced she did so as an assistant to the General Manager and as Marketing Manager.  She explained that she started working in 1999 in a food exporting company as the Business Marketing Manager.  Her representative added that she also assisted in her husband’s business for over a decade.  By 2014 she was considering going overseas to take on a new career.  She was introduced by her friend, [Mr I], to Mr [D] of [Company 6] and they then introduced her to [Company 1].  Her friend [Mr I] knew of this company because he wanted to move overseas and immigrate to Canada.

2. The Tribunal noted the submission that had been received yesterday documenting the large amounts of money the applicant was required to pay to both the Chinese and Australian agents and asked if she considered this to be a payment for a visa.  She responded no, because they had promised her that after two years, if she worked well, they would continue to employ her.  The applicant said she thought it was okay to pay this kind of money because they introduced her to a great job.  She was not suspicious and never thought the job was not genuine because she had gone through interviews and the position was similar to one she had previously held.  The Tribunal again asked the applicant if she held any suspicion about the large amount of money she had to paid to secure this nomination in Australia.  The applicant said that she paid a total of 360 RMB which is a little more than AUD$70,000.  In addition after she was granted the visa she paid a further 397,000 RMB.  She was to be paid $182,000 plus super.

3. Asked when she began to realise the job was not genuine the applicant responded it was after she could not contact [Mr F] around 1 June 2017([Mr F] being [Company 6]’s representative in Australia).  The applicant said that after 1 June she went back to [Company 6] because it had introduced her to the company and, at that time, [Company 6] gave her a telephone number for a Miss [H], who was a lawyer but the applicant was never successful in contacting her.  She was given an Australian phone number in mid-June but no one ever picked up.  The applicant confirmed she received the NOITTA in November 2017.  Asked why she did not contact the department in a period of four months after she suspected the job was not genuine and before the department wrote to her, the applicant said in the beginning she gradually had a suspicion; but she did not know exactly what it happened; she thought there would be middleman who could sort it out and she did not think about it after that.  The Tribunal expressed concerns that someone of her education and professional standing would have known or ought to have known that she had an obligation to report this matter to the Department.  The applicant said that at this time they were still trying to work it out and solve it with [Company 6] and also around this time they bought a house and were very busy with the move.  They bought the house on 13 May 2017 and settled on 21 July 2017.  Asked why she proceeded with the house settlement after she had already realised that the position for which she had been granted a visa to come to Australia to perform was not genuine.  The applicant responded that she thought that as she had made a promise in May (to buy the house ) they had to proceed.

4. The Tribunal asked the applicant when she first visited the address of [Company 1] and found that there was no office there.  The applicant responded that she was told on 29 November 2016 the company was renovating and moving to a new office.

5. The Tribunal, referring to the duties and responsibilities of her position as Managing Director (CEO), documented in the Employment Agreement that (provided in support of her 187 visa application) asked when she commenced the various responsibilities recorded (which include corporate governance, relations with staff, communications and financial and resource management).  The applicant said that at that time they just asked her to contact clients in China to tell them that she is moved to Australia and that the new company was specialising in Virtual tack Desktop Infrastructure (VDI).  The Tribunal noted that the applicant had been granted a 186 visa to come to Australia to be employed as a Managing Director (CEO) and that it was her task to manage the company, its staff and resources and asked the applicant if she had ever commenced employment in the nominated occupation of Managing Director.  The applicant repeated that the company told her at the time that she only had to stay home and work and contact all her clients.  The Tribunal noted therefore that she was not undertaking the employment in the occupation which she had been granted a visa to enter Australia to perform.  The applicant responded that at the time they told her that when the new office had finished renovations should go back to the team and to the role.  The Tribunal asked the applicant if she agreed that she had never performed the role of Managing Director while in Australia.  The applicant said yes.  Asked if she found it unusual that she would be brought to the country to perform a certain role that she was not doing.  The applicant responded that at the time no, she did not consider it abnormal as they told her the company was moving.  She thought that because she was new and they were already doing the renovation so they did not ask her to have a role in that.

6. The applicant said she chose to travel overseas to work because at the time she had gained enough life and work experience in her company and she wanted to go overseas to broaden it.  She did not want to be stuck all her life in one place.  The applicant said she first considered Canada and then Australia because Australia has nice weather and sunshine and is also suitable for bringing up a child.  She said she researched schools from China on the internet where there is lots of information about schools.  Before arriving here the family did not know anyone in Australia or have any friends here but they did have friends of friends here.  They have no extended family in Australia.  Asked how they are surviving financially now the applicant said they sold their house in Shanghai and still have some money left because they took a mortgage over their new home.  The applicant said she has never worked for anyone else other than [Company 1] in Australia.  Neither her husband nor her daughter have worked in Australia.

7. Invited to make any submissions as to why the visa should not be cancelled if the Tribunal finds there was non-compliance in the way documented in the NOITTA, the applicant said the visa should not be cancelled because she did not give incorrect answers or non-genuine information; her employer did.  She believes the department refusing her on criteria 4013 is unfair.  Even if she did understand that there was a reason why the visa should be cancelled she does not believe it should be through Public Interest Criterion 4013.  The applicant said she did not submit any non-genuine documents and a cancellation will affect her daughter’s schooling.  The false information was provided by the employer, not by her.  She thought the position existed because normally employer nominations were investigated and approved by the Department.  She believes that the department investigated and approved the nomination so it is not her fault.  The applicant highlighted that department officers went to inspect the business on 18 August 2016 and that she did not arrive in Australia until 27 November 2016 and between August and November there were 3 months in which the department could have told her that the company was bogus and then she would not have quit her job, sold her house and brought her family to resettle in Australia.  The department only informed her 12 months after her arrival in Australia on 16 November 2017 and, during that 12 months, the family had bought a house; her daughter had started school and she commenced work.  The applicant said that if the department had informed her earlier she would not come to Australia.

8. The applicant’s husband, [Mr A], gave evidence that his wife had a very good career in China before this happened but found a bottleneck and could not succeed so decided to move overseas.  She was very happy that a new career would give her a new role in new directions.  However after she found out that the company had disappeared she became very anxious.  After his wife received the letter from the department she broke down and she had never experienced this in her life before.  As newcomers to Australia, they did not understand they should report this to the department and thought they could sort it out with [Company 6].  Since the cancellation his wife’s personal health has degraded dramatically however luckily their daughter is studying hard in Australia and has had a lot of achievements so this has been some compensation for his wife.  [Mr A] said his wife feels very guilty that she has messed up her daughter’s life and he asked for help for their daughter to be able to study in Australia. 

9. At the conclusion of the hearing the representative clarified a couple of matters including that the applicant commenced employment in China in 1990 and from 1998 ran her husband’s successful business and that while she had explained to the applicant that without a position in Australia her visa was likely to cancelled, they were appealing for the Tribunal to waive PIC 4013 so that the applicant’s daughter can be granted a student visa to continue her VCE studies.

10. In considering if there was non-compliance in the way described in the s.107 notice, the Tribunal records its concern that the majority of material relates to the nomination lodged by the sponsor, not by the applicant.  The only incorrect answer the applicant included was her answer to the question ‘Agree to take up the position for at least 2 years’.  In the circumstances of this particular case the Tribunal no evidence is available to it, that the applicant that the applicant had any part in the lodgement of the nomination application.

11. The issue before the Tribunal therefore is whether the applicant provided an incorrect answer in her application form in answering that it was her intention to take up the nominated position for at least 2 years.

12. After considering the written submissions and supporting documents and speaking with both the applicant and her husband at the hearing, the Tribunal is not satisfied that the applicant did provide an incorrect answer in her 186 visa application form for the following reasons.

13. The Tribunal accepts that at the time the applicant completed her visa application she did intend to ‘take up’/work in the nominated position for at least 2 years.  The Tribunal is not aware of any evidence to the contrary although the applicant’s conduct after arriving in Australia remains a concern.  In particular there is no evidence before the Tribunal to support a finding that the applicant was aware of, or complicit with, the lodgement of a non-genuine nomination.  If such information is held by the department it has not been made available to the Tribunal.  Further, the applicant’s evidence has been consistent in terms of her employment experience, desire to live and work overseas and the agents she paid to source a position for her.  The Tribunal accepts that she was interviewed on 2 occasions as she has claimed and that she believed she had been engaged for a genuine position.

14. Notwithstanding this, the Tribunal maintains serious concerns about the applicant’s conduct following her arrival in Australia and is not satisfied she made every effort to commence employment in the nominated position as required and also that she failed to report this to the department.  The Tribunal does not accept as sincere or legitimate her reasons for not doing so including that, as submitted, “she felt her situation was helpless and lived with uncertainty for several months…she began to think that she had been scammed by her agent and the employer and did not know who to turn to…she decided to give up trying to contact [Company 1] and [Company 6] and just wait to see what would transpire”. Or, as she said at the hearing, that they were still trying to work it out and also around this time they bought a house and were very busy with the move.  The Tribunal formed the view that a person of the applicant’s education and employment experience, supposedly recruited to such a high level position in Australia, would have the necessary skills and knowledge to know she was in breach of her visa conditions.  Rather, the Tribunal was left with the distinct view that it suited the applicant not to be working in the nominated position, that she made only a vague effort to resolve the situation and she chose not to report the situation to the department.

15. The Tribunal also records its concern that the site visit which raised issues about the genuineness of the position and the sponsoring employer was made on 18 August 2016 some 3 months before the applicant departed China to settle in Australia.  The NOITTA was not sent to the applicant until almost 15 months after this site visit.  The Tribunal notes and accepts the applicant’s assertion that had she been advised that the position was not genuine before she departed China, she would not have resigned from her position in Shanghai, sold her house there and removed her daughter from school.

    Conclusion on Non-compliance

16. For the above 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.

    Department Note

17. While the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in s.107 notice because it is not persuaded that the applicant provided an incorrect answer, the evidence squarely before the Tribunal is that the applicant never commenced employment in the nominated position of Chief Executive Officer or Managing Director (see paragraphs 23 and 32).  For this reason there may be grounds to cancel her visa under s.137Q on the basis that she did not commence employment within 6 months of the grant of her ENS Direct Entry (EN 186) visa on 1 July 2016 in the nominated position of Chief Executive Officer or Managing Director with the sponsor, [Company 1].  The Tribunal raised this possibility with the applicant at the hearing and she indicated she understood.  However any decision on whether there should be a further cancellation process is at the discretion of the department.

    DECISION

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

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

    Karen Synon
    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.