2105530 (Migration)

2105530 (Migration) [2021] AATA 4146 (21 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2105530
MEMBER:James Silva
DATE:21 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 21 September 2021 at 3:12pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – incorrect information in previous and current student visa applications – previous visa and entry, overstay and protection visa application under another name not declared – discretion to cancel visa – claimed misunderstanding of questions and reliance on agent – vague reasons given for changing names – no attempt to notify department of incorrect information or response to department’s notice – visa, study and work history – current student visa application in progress – minimal evidence of commitment to study – applicant currently holds Bridging Visa E with no-study condition – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 105, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a national of Malaysia, born in [year]. He was granted a Bridging A visa on 9 April 2020. On 2 March 2021, the delegate issued a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there are grounds for cancelling the applicant’s visa under s.109 of the Act. The applicant did not respond to the NOICC, and his visa was cancelled on 26 April 2021. The applicant seeks review of the decision.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 8 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant is unrepresented in this matter. He submitted a pre-hearing statement, but presented no further documents or witnesses.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Did the notice comply with the requirements in s.107?
The applicant, who is unrepresented, has raised no questions as to whether the NOICC complied with s.107. However, the Tribunal considers it appropriate to address this, for completeness.
The notice[1] identified s.101(b) as the relevant provision. This states that ‘a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided’.
[1] The delegate’s decision record of 26 April 2021 sets out the information that formed the basis for the cancellation, and the procedural steps. The applicant submitted to the Tribunal a copy of the decision. He has raised no questions about the validity of the notice.
The notice set out relevant information that the applicant provided in October 2016 and August 2018, and information from other sources:
§ According to Department records (as reflected in the delegate’s decision record, which the applicant provided to the Tribunal):
-   He first entered Australia [in] January 2013 under the name [Alias 1], on an Electronic Travel Authority (ETA) visa.
-   The ETA expired on 6 April 2013, and the applicant remained in Australia as an unlawful non-citizen until March 2015.
-   On 27 March 2015, he applied for a protection visa under the same name, also under the name [Alias 1]. The delegate refused the application, and the applicant left Australia [in] September 2015.
§ In a first student visa application lodged on 13 October 2016 (October 2016 application), which resulted in the grant of a student visa, he stated:
-   Given name: [the applicant, given name]; Family name: [the applicant, family name].
-   He stated, under the section ‘other names/spellings’ that he had not been known by any other names.
-   He had not travelled to Australia previously.
-   He had never had a visa application for stay refused.
-   He had never overstayed a visa in any country (including Australia).
§ In a second student visa application lodged on 10 August 2018 (August 2018 application), which also resulted in the grant of a student visa, he gave the same information as provided with the previous file.
§ In a third student visa application lodged on 9 April 2020 (April 2020 application), the applicant gave his name as [the applicant], and his gender as female. This application is ongoing.
The notice gave particulars of five pieces of incorrect information given in the October 2016 and August 2018 applications:
§ That he had not been known by another name;
§ That he had not travelled to Australia previously;
§ That he had never had a visa application to stay refused;
§ That he had never overstayed a visa in any country; and
§ That on page 12 of the application form, under ‘Declarations: Warning: Giving false or misleading information is a serious offence’, he incorrectly replied ‘yes’ to a series of questions, indicating that he had given complete and correct information in every detail on the form.
§ Note: the incorrect information that the applicant provided in the April 2020 student visa application, that he is female, was not particularised as information that formed part of the non-compliance, and forms no part of this decision.
In relation to each particular, the notice used the formula: ‘I consider it appears you have not complied with s.101(b) of the Act [with details of the information provided]’, and then stated: ‘I consider this to be incorrect… [with details of the information provided in 2013 and 2016].’ The delegate’s decision record contained the same wording. 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?
The Tribunal must now determine 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), which states: ‘A non-citizen must fill in or complete his or her application form in such as way that no incorrect answers are given’.
As noted above, the s.107 notice identified and particularised five pieces of incorrect information provided in the October 2016 application that the delegate considered amounted to non-compliance, in relation to: (a) his use another name previously; (b) his previous travel to Australia; (c) his previous visa refusal; (d) his previous overstay in Australia; and (e) the incorrect declaration that all the information he gave had been complete and correct.
The delegate sent the s.107 notice on 2 March 2021. The applicant did not reply, to address the issue of non-compliance and/or give a written response as to why the visa should not be cancelled. However, on 3 March 2021, he submitted a Form 1023 ‘Notification of Incorrect Answer(s)’, advising the Department that he had incorrectly stated on his April 2020 applicant that he was female; this had been a typo. As noted above, the NOICC referred to this incorrect information, but it did not particularise it as part of the non-compliance.
In an undated pre-hearing submission to the Tribunal, the applicant wrote that he found the questions on the student visa application about his previous name(s) and his visa history confusing. He thought they required him to give information about his current situation, and did not realise that he had to provide details relating to the past. He added that he knows he must provide correct information.
The Tribunal finds that the applicant provided incorrect information in relation to his previous name and his previous migration visa history. Whether or not he knew this information to be incorrect is immaterial for the purposes of Subdivision C: s.100.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
Consideration of prescribed circumstances
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations, and addressed in the following paragraphs.
The correct information
The correct information is that the applicant initially used the name [Alias 1], and later changed his name to [the applicant]. Also, prior to his October 2016 and August 2018 student visa applications: (a) he had visited Australia previously (using the name [Alias 1]); (b) he had had a visa application for stay (namely a protection visa application) refused; and (c) he had overstayed a visa (between April 2013 and March 2015, following the expiry of his original ETA visa).
As noted in the delegate’s decision record and discussed at hearing, the details of the correct information are, relevantly:
§ The applicant first visited Australia [in] January 2013, a Malaysian passport in the name ‘[Alias 1]’, on an Electronic Travel Authority (ETA) visa.
§ The ETA visa expired on 6 April 2013, and the applicant overstayed until 26 March 2015.
§ On 26 March 2015, he applied for a protection visa, and was granted an associated bridging visa. The Department refused the protection visa application on 25 August 2015. The applicant departed Australia [in] September 2015.
§ [In] 2016, the applicant obtained a new Malaysian passport in the name [the applicant].
§ The applicant made student visa applications on 13 October 2016 and 10 August 2018, based on his current name and passport. He did not disclose that he had previously been known by another name, or indicate his prior travel and visa history.
The Tribunal considers the incorrect information to be significant, as it relates to the applicant’s identity, and key aspects of his migration history. It weighs this factor heavily in favour of cancelling the visa.
The content of the genuine document (if any)
As there is no genuine document in this case, this factor is not relevant.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal considers that the decisions to grant the student visas in 2016 and 2018 were partly based on the incorrect information, namely that the applicant had never held a previous name, or visited Australia previously, or been refused a visa, or overstayed a visa. In relation to both applications, the incorrect information was relevant to an assessment of whether the applicant was a genuine applicant for entry and stay as a student. A person’s immigration history is one factor to consider when assessing whether they intend genuinely to stay in Australia temporarily. The incorrect information denied the officer the opportunity to consider that.
The delegate reasoned that the student visas would likely not have been granted if the officer deciding the student visa applications had been aware that the applicant had provided incorrect information, as the applicant would not have satisfied Public Interest Criteria (PIC) 4020. PIC 4020 requires that there is ‘no evidence before the Minister that the applicant has given […] information that is false or misleading in a material particular in relation to the application for the visa’, and is a basis for visa refusal. The Tribunal notes that reg.2.41(c) relates to the circumstances that led to the actual grant of a visa (or immigration clearance). In its view, PIC 4020 applies only if there is evidence of incorrect information before the decision-maker, and if the information is false or misleading in a material particular. In the Tribunal’s view, this differs from the requirement in reg.2.41(c) and, in this case, does not add to the assessment in the preceding paragraph.
The Tribunal places some weight on this factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant did not respond to the NOICC. He sent to the Tribunal a brief undated statement, and addressed the circumstances of the non-compliance in his oral evidence.
§ In his written submission to the Tribunal, he stated that he found the questions on the student visa application forms confusing. He understood them to require information only about his current situation, and not any past names or his complete migration history. Later in the statement, he wrote: ‘Admittedly, I forgot to claim my previous visa history in the “Visa History” and “Character History” sections.’
§ At hearing, he said that he was not familiar with the law, and relied on an agent to complete the student visa application forms in 2016 and 2018. He gave the agent all the correct details, including his previous name and migration history. He accepted the agent’s assurance that they would take care of things; and he was pleased that the student visas were granted. In other words, the applicant claims that he acted in good faith and relied on the agent to do the right thing.
§ During the course of the hearing, the applicant said that the ‘agent’ in Melbourne who had assisted him in 2016 and 2018 also assisted him with his ongoing student visa application {lodged in April 2020}. In relation to this review application, he said that the email address for correspondence was the agent’s, and not his own. He did not know why this person had failed to identify themselves (i.e. as agent or authorised recipient). The applicant has since provided the Tribunal his direct email address for correspondence.
§ The applicant wrote that he realises he must provide accurate information in visa applications. As an illustration of this, he stated that, on realising that he had inadvertently given his gender as ‘female’ in his April 2020 student visa application, he acted quickly to correct this. As noted in the delegate’s decision record, the NOICC of 2 March 2021 referred to the applicant’s gender as female, based on the information provided in the student visa application. On 3 March 2021, the applicant submitted Form 1023 ‘Notification of Incorrect Answer(s)’ to indicate that he had made a ‘typo’ in completing the form.
- Note: The information that the applicant provided in the April 2020 student visa application was not particularised in the notice as part of the non-compliance, and therefore plays no part in the cancellation. In the Tribunal’s view, neither the applicant’s mistake when completing the April 2020 application form, nor his swift action to correct it once it became apparent, have any direct bearing on the circumstances in which he provided incorrect information in the October 2016 and August 2018 applications.
§ In relation to the reasons for him changing his name in Malaysia, the applicant stated vaguely that he did this for personal reasons, as there had been a problem in the family requiring him to change his official name. He provided no further details. In response to questions, he said that he did not do it to conceal from the Australian authorities the fact of his previous visit to and overstay in Australia. The Tribunal is concerned that his account lacked candour.
The applicant claimed to have acted in good faith, but gave inconsistent accounts of how the non-compliance occurred – whether (a) whether he himself misunderstood the questions and gave what he thought was the required and correct information; or (b) he gave the correct information to an agent, who failed to record it accurately. The Tribunal does not consider either account accurate. In its view, the applicant’s failure to declare his change of name, and his travel and migration history, are significant. It finds that he knowingly gave incorrect information, or knowingly caused incorrect information to be given, in the October 2016 and August 2018 applications, so that he could be granted student visas.
It places some weight on this in favour of cancelling the visa.
The present circumstances of the visa holder
As noted in the delegate’s decision record, the applicant has enrolled in successive full-time studies in English (October 2016 to June 2018), [Subject 1] (August 2018 to February 2020), and [Subject 2] (April 2020 to April 2021), and finished each of these courses. He was enrolled in a Diploma of [Subject 2] course from May 2021.
The applicant told the Tribunal that he had been studying from April 2020 to April 2021 (this is a reference to the Certificate IV in [Subject 2] course), and commenced the Diploma of [Subject 2] May 2021. However, he ceased study after his ‘student visa was refused’.
§ The applicant appeared to confuse the status of his April 2020 student visa application (which is ongoing), with the associated bridging visa (which was cancelled on 26 April 2021, and is the subject of this review). Information provided by the applicant at hearing, which the Tribunal has confirmed through the Departments Movements Database records and the Provider Registration and International Student Management System (PRISMS) records show that, following the Bridging A visa cancellation, the applicant was granted a Bridging E visa on 11 June 2021, which included condition 8207 (No Study). On 30 June 2021, he notified his education provider that he was ceasing his studies. At hearing, the applicant said that he withdrew from the course on the advice of his ‘agent’, but did not have further insights. In other words, the grant of a Bridging E visa with condition 8207 required the applicant to discontinue his studies, and the Tribunal accepts that the applicant’s withdrawal from the Diploma of [Subject 2] course was due to that visa condition.
The applicant said that he is currently living in [City 1], working [at Workplace 1] and [Workplace 2], in accommodation provided by a friend. He provided no further details.
The Tribunal found the applicant guarded and unforthcoming about his present circumstances, his recent studies and other activities. He said that last year, his studies moved online, in response to the COVID-19 pandemic. He had been living in Melbourne, and had attended some in-person classes there. Asked about evidence of his studies, such as certificates, academic results and/or written materials, the applicant replied briefly that he had deleted all such material. While the Tribunal accepts that the applicant may no longer have access to the education provider’s portal (following his cessation of studies), it is disquieted that he has provided minimal evidence of recent or ongoing commitment to study.

Looking ahead, he expected that learning could continue online, even if he continued to stay in regional Victoria. He simply needs internet access.
The Tribunal notes the applicant’s enrolment in full-time study since October 2016; his completion of courses up to April 2021; and his withdrawal from the Diploma of Accounting course in June 2021 only after he was granted a Bridging visa E with condition 8207. However, even allowing for the disruption of the COVID pandemic, it is concerned that he provided minimal evidence of recent or ongoing commitment to study, and was vague about his current circumstances.
The Tribunal places slight weight on this factor against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The non-compliance occurred in October 2016 and August 2018. Section 105(1) requires that a non-citizen must ‘as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.’ Subsection (2) adds, ‘subsection (1) applies despite the grant of any visa’. The applicant did not reply to the NOICC, and has not acted to inform the Department of the correct answer. He did, however, acknowledge to the Tribunal that he had provided incorrect information and, separately, he completed Form 1023 to provide a correct answer as to his gender, on his April 2020 student visa application.
The Tribunal places slight weight on this factor in favouring of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Tribunal
There are no other known instances of the applicant’s non-compliance with ss.101-105. It is therefore an irrelevant factor.
The time that has elapsed since the non-compliance
The non-compliance set out in the s.107 notice occurred in October 2016 and August 2018, i.e. some five and three years ago respectively. The applicant has been in Australia for over five years. It appears that he has established some ties in the community during that period, although his vague mention at hearing to friends having offered him accommodation in Melbourne and Wangaratta, and his work in Wangaratta, gives little sense of what these ties are.
Given the passage of time, the Tribunal places slight weight on this factor against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known instances of the applicant breaching the law. As this is a minimum expectation of visa applicants and holders, the Tribunal places minimal weight against cancelling the visa.
Any contribution made by the holder to the community
The applicant told the Tribunal that he has been a good resident; that he wishes to continue his studies; and that he looks forward to contributing in the future. The Tribunal is required to consider the applicant’s past and present contributions to the community.[2] His claim to be a ‘good resident’ and his references to working in regional Victoria, were vague and unsubstantiated. The Tribunal places minimal weight on this factor against cancelling the visa.
Other relevant circumstances
[2] MIAC v Khadgi (2010) 190 FCR 248 at [120]
While the factors set in r.2.41 out must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s.140.
There are no persons who would be affected by consequential cancellation.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations or family unity obligations.
In the present case, the cancellation of the visa will not result in the applicant being removed from or having to depart Australia. He has an ongoing application for a substantive visa (student visa application of April 2020). He currently holds a Bridging visa E and would be permitted to remain in Australia until such time as the student visa application is finally determined.
Furthermore, the applicant told the Tribunal that if the visa is cancelled, his return to Malaysia would cause hardship because of the COVID-19 pandemic and his likely unemployment. The Tribunal accepts that the applicant may have some concerns about the pandemic in Malaysia and general socio-economic conditions. However, such broad concerns do not generally invoke Australia’s protection obligations.
The applicant has not identified any family members or children who would be affected by his removal.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
The applicant currently holds a Bridging E visa, issued in association with his ongoing student visa application. The cancellation of the Bridging A visa would therefore not directly result in him becoming an unlawful non-citizen and liable to be detained under s.189. Even if the student visa application were refused, the applicant may still be eligible for a Bridging E visa until such time as it is finally determined.
As discussed at hearing, a mandatory legal consequence of the Bridging A visa cancellation is that the applicant would be subject to Public Interest Criterion 4013, which would mean that he cannot be granted certain visas within three years of the visa cancellation date (i.e. until April 2024), except in certain circumstances. This would likely jeopardise his ongoing student visa application, and hence his planned re-enrolment in the Diploma of Accounting course. Section 48 would also restrict his options for making further visa applications while still in Australia.
The mandatory legal consequences of cancellation are not immediate, but are likely to cause the applicant some hardship in terms of future study or visa options, and could eventually result in his removal from Australia The Tribunal places slight weight on this against cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
As noted above, the applicant expressed concern that if his Bridging A visa is cancelled, he would not be able to continue his studies and part-time work in Australia, and he would face problems if he were required to return to Malaysia. The Tribunal accepts that the applicant may experience some hardship if he cannot resume his studies in Australia (although his engagement with those studies and their ultimate purpose remain vague); if his current five years of residence and work in Australia come to an end; and if he returns to Malaysia, where living standards and economic conditions are less favourable.
The Tribunal accords these factors some weight against cancelling the visa.
Summary
The Tribunal has considered the totality of the applicant’s circumstances. Having found that there was non-compliance, it has weighed the considerations against and in favour of the visa cancellation. It has had regard to the applicant’s written statement, his oral evidence and his circumstances, together with the prescribed circumstances set out in reg. 2.41 and other relevant matters.
It has decided to place greater weight on the significance of the non-compliance, which it considers was deliberate. It takes into account the passage of time – five years and three years respectively – since the non-compliance occurred, and the potential disruption to the applicant of visa cancellation after five years’ residence in Australia. However, the applicant’s vague, unsupported account of his studies and other activities in Australia leaves the Tribunal with little sense of his commitment to study, his plans, his ties to or contribution to the community, or the degree of hardship that the cancellation may cause him. After careful consideration of the prescribed circumstances and other relevant matters, the Tribunal is of the view that the visa should be cancelled.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
James Silva
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.

[2021] AATA 4146

21 September 2021

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