Bigarella (Migration)

[2022] AATA 4212

Bigarella (Migration) [2022] AATA 4212 (24 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bernardo Bigarella

CASE NUMBER:  2119362

HOME AFFAIRS REFERENCE(S):          BCC2020/2877487

MEMBER:Melissa McAdam

DATE:24 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 24 October 2022 at 10:35am

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – lockdown travel restrictions – impact of the COVID19 pandemic – family medical expenses – financial hardship – plans for further studies – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 189
Migration Regulations 1994, Schedule 2 cl 417.211; Schedule 4, Public Interest Criterion 4013; r 2.41

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 Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with s 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Section 107 Notice, NOICC

3. On 12 October 2021 the Delegate issued a Notice of Intention to Consider Cancellation of the applicant’s third Working Holiday Visa (NOICC) under s.107 of the Act.  In the NOICC the Delegate set out the following:

   I consider that there has been non-compliance with the following section(s) of the Act:

   Section 101 Visa applications to be correct

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

   (b) no incorrect answers are given or provided.

   Particulars of grounds for cancellation
   Information provided in your visa application

   On 10 December 2020, you lodged an application for a Working Holiday (Extension) (subclass 417) visa using the Department’s online lodgement facility, providing the following answers on the electronic visa form:

   In response to the question ‘They have carried out at least six months of specified work’ you answered ‘Yes’.

   In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa.’ you answered ‘Yes’.

   Under the heading ‘Details of specified work undertaken’, you provided the following answers (in part):

   Employer Details
   Legal registered name: Berry sweet strawberry farm
   Trading name: Berry sweet strawberry farm
   Australian Business Number (ABN): 78597340065
   Employer business address
   Address: 47 Davidson St
   Suburb / Town: Bullsbrook
   State / Territory Western Australia
   Postcode: 6084

   Work conditions
   Employment type: Direct employment
   Industry type: Agriculture, forestry and fishing
   Industry type sub-group: Tree farming and felling
   Description of duties Picking of ripe strawberries into 250g punnets making sure all the strawberries are the correct size and weight for each punnet. Organising trays of strawberries
   once picked and distributing the trays to a nearby truck for weighing.
   Date from: 23 Mar 2020
   Date to: 13 Sep 2020
   Total days worked: 190

   Under the heading ‘Working holiday declarations’, in response to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out after 1 July 2019; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa.’, you answered ‘Yes’.

   Based on the above information, as well as meeting other relevant criteria, you were granted your Working Holiday (Extension) visa on 10 December 2020.

   Subsequent information received by the Department

   The Department initiated employment verification checks with Berry sweet strawberry farm, the business registered under ABN 78597340065, to verify your employment claims. On 18 December 2020, Berry sweet strawberry farm contacted the Department and advised that you never worked at their business for 190 days, from 23 March 2020 to 13 September 2020.

   Possible non-compliance with section 101(b)

   I consider that you provided incorrect information in your application for a Working Holiday (Extension) visa when you:

   ● answered ‘Yes’ to the question ‘They have carried out at least six months of specified work’;
   ● answered ‘Yes’ to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa.’;
   ● provided details of claimed employment with Berry sweet strawberry farm, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
   ● answered ‘Yes’ to the declaration ‘Have carried out at least six months of specified work; AND all of that work was carried out after 1 July 2019; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa.’

   I consider the above information is incorrect, as verification checks undertaken by the Department have concluded that you never worked for 190 days at the business, Berry sweet strawberry farm. Therefore, you have not undertaken six months specified subclass 417 work.

   Based on the above information, it appears you provided incorrect answers in support of your Working Holiday (Extension) visa application. I consider therefore, that you have not complied with sections 101(b), and accordingly your Working Holiday (Extension) visa may be liable for cancellation under section 109 of the Act.

   Response to NOICC

4. The applicant provided a written response to the NOICC on 2 November 2021 stating the following:

   My name is Bernardo. I am an Italian citizen Brazilian born. Coming to Australia had always been a dream of mine. A land filled with many opportunities and promises for a much better life than the one I was living in Brazil. 2017 was the year that I decided to make it happen – to do all that I possibly could to make this dream come true. I still had 2 years of my Civil Engineering degree left to go before I graduated – but my grandmother, who was the one supporting me financially with my degree, suddenly passed away by heart attack. From here on, everything became much more difficult. During that time, I worked 30 hours a week at a Still Frame company, as budget officer, earning only $250 monthly, which did not even come close to the amount of money I needed to support myself in this degree – so I borrowed some money from close relatives in order to be able to complete my degree. However, my mind was still fixated on making a move to Australia. I invested 40% out of my monthly salary towards English language classes (around $100).

   In February of 2019, I finally graduated with my Civil Engineering degree. Attached to this letter and marked ‘A’, is a copy of my certificate. I wanted to move to Australia so that I could get improve my qualification in my area in a country with high performance civil engineering system and also with plenty of opportunities which could lead me to a better life and also make possible to help my family with health expenses. I sold all of my possessions in Brazil so that I could buy a ticket to Australia and pay for 4 weeks of English classes at Navitas – which was all I could afford at that time.

   On 17 March 2019, my dreams were starting to come true as I finally landed in Sydney airport. I took on a 4-week general English course, and then went into farm work right away in order to extend my visa. At this stage, my English was still quite poor – but I did do some research and – through a group on Facebook – found a hostel in Bowen, Queensland. I spoke to a gentleman by the name of Allan who indicated that he could find some farm work for me to do. I didn’t think twice about this as I wanted to embrace any opportunity which presented itself – so on 4 May, I landed in Proserpine Airport, and as promised, Allan found some farm work for me to do. I worked in a farm company called Mulgowie, packing corn, for approximately 4 months. I had one of the best experiences of my life in Bowen. I made so many new friends, my English improved and I had a great sense of achievement, having contributed within Australia not long after my arrival.

   After my work there was completed, I had a few weeks off before returning to Sydney – so that I could continue with my plan to continue working, so that I could save enough money to pay for my tuition. So, I worked many casual jobs in critical sectors of the community as construction worker, a removalist and in hospitality. I successfully applied for my second year working holiday visa and was successful. Everything was going well at this stage.

   2020 was a very tough and unpredictable year for everyone. The day after I started my second-year holiday visa, we all had to go into lockdown. At this point, I was working as a waiter in hospitality at a restaurant and café, when I suddenly lost both of my jobs. This was one of the difficult and fearful time in my life – having concern about a deadly virus whilst having no job and income to support myself. I did not have enough savings that could get me through a long period of time with no income.

   I decided to get in touch with 3 of the new friends I had made during my stay in Bowen, asking them if they were able to land any farm work. One of the guys I reached out to, by the name of James, told me he was back at the same hostel we stayed in, and that it was full – but he was hoping to get a job. Another friend by the name of Jonathan, told me that he was struggling to find work in Bowen and decided to move back to England. Finally, the last person I reached out to, by the name of Aaron, also informed me that he had been in search of a job in a difference city, called Gatton, but could not find a job at that time. Attached to this letter and marked ‘B’, are screenshots of my conversations with the above-mentioned people. I got in contact with Allan, owner of the hostel that I went in Bowen, but he confirmed what James said to me, his hostel was full capacity. I also deeply researched in Facebook groups, as I found my farm job in the first year in this way, but this time was different, as many people were experiencing the same difficulties as I was, due COVID-19 situation and restrictions.

   Everything was telling me that leaving Sydney was not a good idea and may put me in a great risk of more instability in relation to finding work – so I decided to stay put for the time being. I decided to rent a bike and started delivering food in order to at least cover my weekly expenses.

   In June, I started to work as a waiter in Double Bay for a few days a week – which then led me to enrol in a barista course in Sydney CBD, called ‘Baristasocool’. I believed that this would allow a better chance at finding work as the demand of workers in hospitality jobs started to grow at the time. Attached to this letter and marked ‘C’, is a copy of the certificate I received. I landed more hospitality jobs at a restaurant called Scotch&CO. Due to instability in rosters, I worked at a few other cafes in the North Sydney and Manly areas (Bacino Bar, Ripple Little Manly, Acre Artarmon and Hotel Steyne). All of these Cafes offered merely a few hours of work a week – which was frustrating and made me feel unstable.

   I then got a job at Peters of Kensington in November, which then made me start to feel a little more financially safe – and also allowed me to send some money home to my family in Brazil ($1,350.00) – to help them with bills and to help with my father’s teeth treatment. Being able to put a smile on my fathers face brought me so much joy. Periodically, I send small amounts of money to my family to help them with bills and health expenses. Attached to this letter and marked ‘D’, is a screenshot of this transfer as well as other transfers made to my family in Brazil. I currently work for Peters of Kensington at Birkenhead point in a critical area with high demand for a year. My shifts alternates within barista, wait staff, cashier, manage online orders and customer service positions. I also worked in another critical area during the 2021 lockdown in a warehouse managing online orders. Lately, after the second lockdown, I have been working between 6 and 7 days a week as the company is struggling to fill the positions. Attached to this letter and marked ‘G’ is character reference from the managers, co-workers and my flat mate.

   In December of 2020, I had only three months on my visa remaining. I was extremely desperate and anxious as the COVID situation in Brazil was extremely concerning, with an average of 50,0000 cases of COVID daily. The COVID pandemic Visa (408) was not available at this time.

   During this time, I received advice from a flat mate who informed me that he knew an immigration agent who would be able to help me with my third year working holiday visa, so I contacted the agent and they told me they were experienced and specialised in applications for working holiday visas for second and third year applications - working since 2009. I did not question their trustworthiness as they seemed highly experienced and assured me that they could help me. Attached to this letter and marked ‘E’ is a screenshot of my initial email to the agent seeking help, and his response assuring that he could help.

   The agent informed me that, in order to extend my visa for a third year, I had to go through the application process, 3 months before my visa expired which made me even more anxious. I wasn’t even fully aware of what the process of the application was or what it entailed, but I consented, having faith that the agent knew what he was doing.

   Regrettably, I did not do any personal research to understand the nature of the questions asked and to ensure that I understood fully, what was being presented in the application. I understand how serious this offence is – of presenting inaccurate information on a legal document and I have so much regret following these events, because had I been fully aware, I would not have allowed for inaccurate information to be provided.

   I understand that it is a serious offence, but I ask you consider the circumstances that it happened due COVID-19 – in that, it was difficult to find work during pandemic and also my unstable emotional conditions at that situation topped with my anxiety. I sincerely apologise and ask that you would take into consideration the genuine nature of this letter, of my story and my plans to contribute to society in a positive way moving forward. I ask that you consider the difficult circumstances that have taken place over the last couple of years in Australia – which have put so much pressure on me both physically and mentally. If I could take this back, I would – and if I am given a chance to remain in Australia, I will do my best to continue striving for success, to make informed decisions.

   Australia is and always has been a highly developed country within the realm of Civil Engineering. This aligned with my passion and dream to gain further knowledge within Engineering, and to be a part of a movement that would help better the future of, not only those living within Australia, but to people all around the world. I have passion and drive to help society grow in a sustainable way and for an environmentally greener future- which is greatly needed today. As English is not my first language, I really want to reach fluency in English which is something that I have always been pursuing. My plan is to enrol in an academic English course, in order to prepare me for the next step – which is to get into a post graduate course in environmental engineering in regional areas – as these areas are suffering due to a major lack of civil engineers. This is a chance for me to not only accomplish my own dreams, but to contribute to society in ways that are greatly needed. Attached to this letter and marked as ‘F’, offering letter for academic English course from Universal English College. I couldn’t be more grateful for all the experiences I have had in Australia so far – and I would be devastated if I could not continue to pursue my dreams. I would like to make my family proud and continue supporting their needs in my best efforts – I realise that you may receive many other letters and am grateful for your time and consideration of my story. I ask wholeheartedly that you would give me a chance to make things right – and to correct my wrong.

5. The applicant attached copies of the following documents to his response:

   -His Bachelor degree.

   -Screen shots of text messages between the applicant and other persons.

   -A Barista Training Course certificate.

   -Money transfer records.

   -An excerpt of email correspondence between the applicant and another person regarding an application for a third working holiday visa.

   -Email correspondence between the applicant and another person regarding a study and payment plan for the applicant.

   -Character reference letters from the applicant’s employers, work colleague and flatmate.

   Delegate’s Decision

6. The delegate found that the applicant had provided incorrect information in his visa application and exercised the discretion to cancel his visa.

   Information to the Tribunal

   Pre-Hearing Submission

7. On 5 October 2022 the applicant submitted a further written statement in which he states:

   I thank you for taking the time to review my case. I am a person of good character and good intentions, and although my Visa application was submitted through an agent in an extremely stressful time, I take full responsibility for the submission of incorrect information as it was ultimately my Visa application. I engaged an agent as it was a very scary time for me, with rules constantly changing and my financial situation very unstable. However, I am an ethical person and would not have supported providing wrong information on the application. I would like to ask wholeheartedly that you consider all of the points that follow and allow me a chance to make things right and continue to be an upstanding member of society. Coming to Australia had always been a dream of mine. A land filled with many opportunities and promises for a much better life than the one I was living in Brazil. 2017 was the year that I decided to make it happen – to do all that I possibly could to make this dream come true. I still had 2 years of my Civil Engineering degree left to go before I graduated – but my grandmother, who was the one supporting me financially with my degree, became ill and passed away. From here on, everything became much more difficult. During that time, I worked 30 hours a week at a Steel Frame company, as budget officer, earning only $250 monthly, which did not even come close to the amount of money I needed to support myself in this degree – so I borrowed some money in order to be able to complete my degree. However, my mind was still fixated on making a move to Australia. I invested 40% out of my monthly salary towards English language classes (around $100). In February of 2019, I finally graduated with my Civil Engineering degree. Attached to this letter and marked ‘A’, is a copy of my bachelor degree graduate certificate. I wanted to move to Australia so that I could get qualification in my area in a country with high performance civil engineering system and also with plenty of opportunities in the area which could lead me to help my family in Brazil, and to repay them for the help they provided for me during the time I was studying. I sold all of my possessions in Brazil so that I could buy a ticket to Australia and pay for 4 weeks of English classes at Navitas – which was all I could afford at that time. Australia is and always has been a highly developed country within the realm of Civil Engineering. This aligned with my passion and dream to gain further knowledge within Engineering, and to be a part of a movement that would help better the future of, not only those living within Australia, but to people all around the world. I have passion and drive to help society grow in a sustainable way and for an environmentally greener future – which is greatly needed today. My goal is keep contributing in the community working in critical sectors while trialling my path to get financial condition to pay the tuition for a Master degree in civil engineering and also be able to support any financial needs that my family may have during this time. My mother is currently retired and she looks after my grandfather who is 95 years old, he demands care as he can barely walk so my mother has not enough time to work and care for my grandfather needs at the same time. My father also helps to take care of my grandfather and he is currently unemployed. I have two younger sisters – both of them are still studying so they are able to work only part time which the salary can barely pay their own bills. That’s the reason I am the main source of income in the family in this period and I can’t let them down if any unexpected problem happens. This is a chance for me to not only accomplish my own dreams, but to look after my family and to contribute to society here as civil engineers are in high demand in Australia. On 17 March 2019, my dreams were starting to come true as I finally landed in Sydney airport. I took on a 4-week general English course, and then went into farm work right away in order to extend my visa. At this stage, my English was still quite poor – but I did do some research and – through a group on Facebook, found a hostel in Bowen, Queensland. I spoke to a gentleman by the name of Allan who indicated that he could find some farm work for me to do. I didn’t think twice about this as I wanted to embrace any opportunity which presented itself – so on 4 May, I landed in Proserpine Airport, and as promised, Allan found some farm work for me to do. I worked on a farm called “Mulgowie” packing corn for approximately 4 months. I had one of the best experiences of my life in Bowen. I made so many new friends, my English improved and I had a great sense of achievement, having already contributed to Australia not long after my arrival. After my work there was completed, I had a few weeks off before returning to Sydney – so that I could continue with my plan to work and save enough money for my tuition to further my civil engineering education and become qualified in Australia to contribute to the exciting growth of Australian society. So, I worked many casual jobs in critical sectors of the community as construction worker, a removalist and in hospitality. I successfully applied for my second year working holiday visa and was successful. Everything was going well at this stage. 2020 was a very tough and unpredictable year for everyone. The day after I started my second-year holiday visa, the state went into lockdown. At this point, I was working as a waiter in hospitality at a restaurant and café, when I suddenly lost both of my jobs. This was the most difficult and fearful time in my life – having concern about a deadly virus whilst being stuck in a country away from my family with no job and income to support myself. I did not have enough savings that could get me through a long period of time with no income. I decided to get in touch with 3 of the new friends I had made during my stay in Bowen, asking them if they were able to find me any farm work. One of the guys I reached out to, by the name of James, told me he was back at the same hostel where we met in 2019, but it was full and he wasn’t working at the moment, but he was hoping to get a job. Another friend by the name of Jonathan, told me that he didn’t find work in Bowen and decided to move back to England. Finally, the last person I reached out to, by the name of Aaron, also informed me that he was not working as well. I also got in contact with Allan owner to the hostel in Bowen. There weren’t no vacancies in his hostel. Attached to this letter and marked ‘B’, are screenshots of my text with the above-mentioned people. I also searched in Facebook groups in order to find a community of people who were perhaps experiencing the same difficulties as I was. Everything was telling me that leaving Sydney was not a good idea and may put me in a great risk of more instability in relation to finding work. Due the closure of the Australian International Border there weren’t any flights available, and I wasn’t able to go back to Brazil – so I decided to stay put for the time being. I decided to rent a bicycle and start delivering food in order to at least cover my weekly expenses. In June 2020, I started to work as a waiter in Double Bay for a few days a week – which then led me to enrol in a barista course in Sydney CBD, called ‘Baristasocool’. I believed that this would allow me a better chance at finding work as the demand of workers in hospitality jobs started to grow at the time. Attached to this letter and marked ‘C’, is a copy of the certificate I received. Due to instability in rosters, I worked at several other cafes in the North Sydney and Manly areas (Bacino Bar, Ripple Little Manly, Acre Artarmon and Hotel Steyne). All of these Cafes offered a mere few hours of inconsistent work a week – which was frustrating and made me feel unstable. I then got a job at Peters of Kensington in November, which then made me start to feel relieved as I would be able to financially support my family during the pandemic as my father was suffering health issues. I have sent money to my family in Brazil ($1,350.00) – to help with my father’s health treatment. Periodically, I send small amounts of money to my family to help them with bills and health expenses. Attached to this letter and marked ‘D’, is a screenshot of this transfer as well as other transfers made to my family members in Brazil. I currently work for Peters of Kensington in is a critical area with high demand for almost 2 years. My shifts currently alternate within Café Staff and Sales Assistant. I also worked in another critical area during the 2021 lockdown in a warehouse managing online orders. Lately, I have been working between 6 and 7 days a week as the company is struggling to fill the positions. Attached to this letter and marked ‘E’ is the letter of employment and character references from the managers and co-workers and payslips regard my week working hours. In December of 2020, I had only three months on my visa remaining, struggling financially and my family was in a bad situation as my father was with health problems at that time, so it made me really anxious. I also developed panic attacks. I was extremely desperate as the COVID situation in Brazil was extremely concerning, with an average of 50,000 cases of COVID daily. During this time, the visa limitation and requirements were constantly changing which let me confused so I decided to look for an immigration agent to help me out to extend my visa in Australia. I received advice from a friend who informed me that he knew an immigration agent who would be able to help me with my visa issues, so I contacted this agent, who advised me they were experienced and specialised in applications for working holiday visas for second and third-year applications – with experience since 2009. I did not question their trustworthiness as they seemed highly experienced and assured me that they could help me. The agent asked me some details of my personal life, such as, where I have lived and where I have worked in my stay in Australia, a photo of my passport and my credit card details and said not to worry that my visa would be approved in a couple days. Attached to this letter and marked ‘F’ is a screenshot of the email to the agent seeking help, and his response assuring that he could help. I wasn’t even fully aware of what the process of the application was or what it entailed, but I consented, having faith that the agent knew what he was doing. They strongly recommended me to apply the visa 3 months before my current visa expire so I followed his recommendations and went through the process. They applied the visa on my behalf. A few days later they emailed me saying that my visa has been approved – that was the last time I heard from them – I emailed them asking the details of the application but they have never replied me. Regrettably, I did not do any personal research to understand the nature of the questions asked and to ensure that I understood fully, what was being presented in the application. I understand how serious this offence is – of presenting inaccurate information on a legal document and I have so much regret following these events, because had I been fully aware, I would not have allowed for inaccurate information to be provided. Attached to this letter and market ‘G’ screenshots of the emails to the agent regards the above-mentioned facts. I understand that it is a serious offence and I deeply apologise. I ask you to consider the circumstances that it happened under – I have been suffering with anxiety and panic attacks – currently under medication. I had to struggle for while financially but I could finally be able to afford a treatment which has been helping me a lot. I sincerely apologise and ask that you would take into consideration the genuine nature of this letter, of my story and my plans to contribute to society in a positive way moving forward. I ask that you consider the difficult circumstances that have taken place over the last couple of years worldwide – which have put so much pressure on me both physically and mentally. If I could take this back, I would – and if I am given a chance to remain in Australia, I will do my best to continue striving for success, redeem myself with the country and society working in the most demanded sectors and to make informed decisions. Attached to this letter and marked ‘H’ the medical report of my mental health condition. I consider myself as an upstanding person with good heart – I always care about friends, family and everyone else. I want to continue to contribute to Australian society as I have been doing since I arrived the country, that’s why I have been working hard in critical sectors, empowering people around me, making their life better and making donations towards people who were affected by floods and towards charity. I have always had an exemplary behaviour growing up including now, never gotten into any trouble of any kind. Attached to this letter and marked ‘I’ the receipts of donation to NSW and QLD floods appeal, Australian Red Cross and character reference from a very close friend ‘J’. I couldn’t be more grateful for all the experiences I have had in Australia so far – and I would be devastated if I could not continue to pursue my dreams. I would like to make my family proud and safe and be able to obtain further education in Australia while also supporting their needs in my best efforts – I realise that you may receive many other letters during this difficult time and I am grateful for your time and consideration of my story. I ask wholeheartedly that you would give me a chance to make things right – and to correct my wrong.

1. With his statement the applicant attached the following documents:

   -His Bachelor Degree in Civil Engineering from Universidade De Caxias Do Sul.

   -Screen shots of text messages between two people regarding work in the country.

   -A barista training course certificate.

   -Several bank transfers from the applicant’s account to his Brazilian bank account.

   -A bank transfer of $5000 from the applicant’s account to his mother’s Brazilian bank account for his father’s ‘health treatment’ in December 2020.

   -A bank transfer of $280 from the applicant’s account to his sister’s Brazilian bank account for her ‘financial issues’ in November 2021.

   -A bank transfer of $400 from the applicant’s account to his other sister’s Brazilian bank account for her ‘financial issues’ in November 2021.

   -A bank transfer of $80 from the applicant’s account to his mother’s Brazilian bank account for family ‘financial issues’ in April 2022.

   -A bank transfer of $120 from the applicant’s account to his mother’s Brazilian bank account for family ‘financial issues’ in May 2022.

   -A letter from Peter’s of Kensington verifying that the applicant has been employed as a retail sales assistant and café waiter since November 2020.

   -Two positive character reference letters from the applicant’s work colleagues.

   -Two positive character reference letters from the applicant’s former work colleagues.

   -A positive character reference letter from a ‘close friend’ of the applicant.

   -The applicant’s pay slips from Peters of Kensington.

   -Excerpts of emails between the applicant and the ‘agent’ who arranged his visa application, including emails from the applicant requesting a copy of the granted visa.

   -A letter from a Consultant Psychiatrist dated 5 October 2022 stating that the applicant is under her care for the treatment of ‘panic disorder’, and he has had two appointments with her.  The applicant is taking medication ‘to assist with anxiety’.

   -Receipts for two donations by the applicant of $60 to the ‘Qld and NSW Floods Appeal’ in March 2022 and $50 to the Australian Red Cross in October 2022

   Tribunal Hearing

2. The applicant appeared before the Tribunal on 18 October 2022 to give evidence and present arguments.  The Tribunal also received oral evidence from the applicant’s friend Lingyan Sun.

3. The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant confirmed the information in his visa application was incorrect. He did not complete six months of specified work in regional Australia as stated in the application.

   b.The reason the incorrect information was provided was because his visa was expiring and his family were having trouble in Brazil. There were 50,000 daily COVID cases there. His father has health issues The applicant’s work in Australia was insecure and he was off work at times.

   c.He decided to look for an agent to help him.  His flatmate, Thuvi Thava, recommended the agent he said could help the applicant and the applicant would not need to do regional work.  When the applicant received an email from the agent the applicant thought he seemed fair.  After the visa was granted the applicant asked the agent what he put in the visa application but he did not receive a reply from the agent.  The applicant’s English was not very good at the time.

   d.The Tribunal asked the applicant why he believed the person who lodged his visa application to be a creditable agent.  The applicant responded it was because his friend recommended the person. The Tribunal asked if the person had provided an office address or anything else to indicate the person was a genuine agent. The applicant responded no.  He did not think the agent was doing anything improper.  He was not aware that he needed to have completed six months of regional specified work to obtain the visa.  He was not aware of this because the rules were changing at the time. The Tribunal asked him what rules were changing or why he believed the rules were changing and he responded because he could not get out of Sydney.

   e.The Tribunal asked the applicant why he had only submitted excerpts of the email exchanges between himself and the person who lodged his visa application, and whether he could submit the full email.  After some minutes the applicant found the email and showed it to the Tribunal.  In the email the person had written that the applicant’s name would be given to a farm he had not worked at. The Tribunal put to the applicant that this indicated that there would be falsified information in his visa application so why did he state he did not think the agent was doing anything improper. The applicant agreed that it did look unlawful or ‘dodgy’.

   f.The applicant thought it was not best to return to Brazil because there were so many COVID cases. The applicant is also the only source of income for his family in Brazil.  He told his mother he wanted to go home but she said no you must stay there.  The Tribunal asked the applicant why she would encourage him to stay if his work situation was insecure at the time.  He replied that his mother told him to do whatever he could in Australia.

   g.The Tribunal put to the applicant that there were many cases of COVID in Australia and there was a risk he could catch it here too. The applicant responded yes but the case numbers were higher in Brazil.  The Tribunal asked the applicant if he had any particular vulnerabilities in relation to COVID and he responded no.

   h.The applicant has two sisters in Brazil who are 24 years old.  They live with his parents.  They are studying at university. One is a trainee in architecture and the other is a trainee in civil engineering.  They both work part-time and earn about $300 a month each.

   i.The applicant’s mother is retired and takes care of her elderly father.  She receives a pension of $1,000 a month.  The applicant’s father does not work.  The family own their home but their combined income of $1,600 a month is not enough.  There are no good jobs in Brazil.  The Tribunal asked if civil engineering and architecture were ‘good jobs’ in Brazil.  The applicant responded yes but it takes time to earn well.

   j.The applicant can earn $1,800 to $2,000 a fortnight in Australia.

   k.He irregularly sends money to his family in Brazil to help them with their bills such as medical expenses or household repairs.  He last sent money to his family either last year or in the beginning of this year.  He can’t send money to them because he is saving for the tuition fees for a civil engineering post graduate course in Australia.  He has saved about $12,000 and needs about $50,000.  He thinks it will take him another year to save enough money to enrol in a course. He wants to study in regional Australia, as this is a better pathway to a skilled visa here. He will start studying and also work to continue to earn money for the ongoing fees.  He thinks the post-graduate course will be two years.

   l.He didn’t contact the department to find out information about his visa options. He wish he had.

   m.His family are depending upon him financially although he has not sent them money for some time.

   n.He is working in a critical sector, hospitality, in Australia. His employer relies upon him and he works six and sometimes seven days a week. When a person calls in sick his employer knows he can contact the applicant to fill an extra shift. 

   o.He has been a good citizen in Australia. He has never broken any laws or breached any other visa condition.  He has made some donations at times.

   p.He has made good friends in Australia and provides emotional support to them.

   q.He has not formed any relationships with any children in Australia.

   r.His visa was due to expire in March this year.  If the visa cancellation is revoked he will apply for a Working Holiday No-VAC visa and earn some more money for his tuition fees. He will then apply for a Student visa in Australia.  He thinks he will apply to a Perth university as it is considered regional.  He researched another Australian university and checked fees and that his Brazilian Bachelor degree will entitle him to enrolment in a masters course in engineering in Australia.

   s.His family have not visited him in Australia because it is too expensive for them to travel here.  He has never been to Italy or Europe as it is too expensive for him to travel to Europe. 

   t.His life has changed in Australia. It is safe for him to walk after 9 pm here.  He also enjoys the multicultural experience in Australia, meeting people from many different countries. He has grown personally and appreciates the diverse environment. 

   u.He has been paying a lot of tax in Australia.

4. The following is a summary of the information provided by the applicant’s friend Lingyan Sun at the hearing:

   a.She is an Australian permanent resident.  She and the applicant have been close friends for one and a half years.

   b.The applicant provides emotional support to her. For example when she is trying to find a better job the applicant gives her confidence and is always there to support her and to tell her she is capable.

   c.She will be very sad if the applicant has to leave Australia because she will be very worried about him and will feel an emotional loss. They see each other two or three times a week. The applicant is one of her three closest friends who she relies upon.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

7. 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?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects:

   The applicant provided incorrect information in the visa application that he had completed six months of specified work in regional Australia, while holding a second Working Holiday visa.

9. The applicant and the company named as the applicant’s employer in his visa application form, have both confirmed that he did not complete the specified work detailed in his visa application.

10. The Tribunal therefore accepts that the applicant did not complete the specified work described in his visa application form and that this information was incorrect.

11. 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?

12. 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).

13. 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 reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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 circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

    The correct information

14. The correct information is that the applicant had not completed six months specified work in regional Australia, while holding his second Working Holiday visa, at the time of his third subclass 417 visa application.

15. The correct information was of critical relevance to the assessment of the visa application and should have been provided.  The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.

    The content of the genuine document (if any)

16. This is not a relevant consideration in this case.

    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

17. Clause 417.211(6) of Schedule 2 to the Regulations requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods, equivalent to at least six months full-time work, of specified work in regional Australia as the holder of a second subclass 417 visa.

18. This was a substantive criteria and a central requirement for the grant of the visa.  If the requirement was not fulfilled the visa could not be granted.

19. The Tribunal therefore considers that the grant of the third subclass 417 visa was based, in large part, on the incorrect information given in the visa application. The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.

    The circumstances in which the non-compliance occurred

20. The applicant gave evidence that the incorrect information was provided because he wasn’t financially stable at the time and he was finding it hard to find a regional job. He did not want to return to Brazil because his family relied upon the financial support he provided from his income in Australia. His father was ill and there were thousands of daily COVID cases in Brazil.

21. The applicant also gave evidence that he thought the person lodging his visa application was doing so lawfully, and that he was not aware that incorrect information would be included.

22. The Tribunal found the applicant’s evidence on these issues implausible and self-contradictory in many aspects.

23. In the email communication between the applicant and the person who lodged his visa application it is clearly indicated that incorrect information that the applicant had worked at a farm, which he had not in fact worked at, would be provided in his visa application.  As put to the applicant there was also no indication that the person lodging the visa application was lawfully qualified or permitted to do so.  The applicant could point to no valid reason to support his contention he believed the person lodging his visa application was trustworthy and honest.  The applicant tried to suggest that although he had been aware in the past that he would have to complete six months specified work in regional Australia in order to be eligible for the third visa, he thought at the time of his application that the rules had changed.  He could identify no reason to support his claimed belief that the rules had changed. In the Tribunal’s view the applicant was aware at the time he arranged for his visa application to be lodged that he did not meet the criteria for the grant of the visa and he knowingly relied upon a third party to provide false information on his behalf.

24. The applicant’s evidence about his family in Brazil relying upon him for critical financial support is contradicted by his evidence at hearing that he had not provided any financial support for at least most of this year, and instead was saving his money to pay for his future study costs.  Oddly he has submitted written evidence of two transfers of a few hundred dollars to his mother in Brail in recent months, however he did not mention these at hearing.  This indicates he did not consider the transfers significant in terms of his current earnings.

25. At the time of the visa application he stated his work was insecure in Australia so that he was often not working.  This, together with his very real concerns for his father’s health, would be expected to prompt a decision return to Brazil and not to remain in Australia.

26. As put to the applicant there were many cases of COVID in Australia too so that there was a risk he could catch the virus in Australia as well as in Brazil. The applicant confirmed he had no particular vulnerabilities which increased the risk of COVID for him.

27. In view of the above the Tribunal considers there is nothing about the circumstances in which the non-compliance occurred that would justify or mitigate the seriousness of his non-compliance.

28. The Tribunal accepts that the pandemic restrictions in place in Australia at the time the applicant held a second Working Holiday visa did adversely impact his ability to find suitable regional work to some degree.  However the fact that he chose to pursue an application for the visa using incorrect information, instead of making more effort to actually comply with the visa requirements is not favourable to him.

29. The Tribunal considers the circumstances in which the non-compliance occurred weigh in favour of cancelling the visa.

    The present circumstances of the visa holder

30. The applicant and his employer provided evidence that he is currently working six or seven days a week for a café/restaurant business and has been doing so, for the same employer, for almost two years.  The Tribunal accepts this.

31. The Tribunal also accepts that he has made friends in Australia and that he enjoys living here.

32. Further, the applicant is pursuing plans to enrol in a Master of Engineering in regional Australia, with a view to creating a pathway to obtaining permanent residence here.  He is confident that within a year he will have saved sufficient funds for his enrolment.

33. The applicant has therefore consolidated his circumstances in Australia in a positive way.

34. The Tribunal gives this factor weight against the cancellation of his 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

35. There is no adverse information before the Tribunal regarding the applicant's subsequent behaviour concerning his obligations. This factor weighs against the cancellation of his visa.

    Any other instances of non-compliance by the visa holder known to the Minister

36. There is no evidence before the Tribunal of any other instances of non-compliance by the applicant.  The Tribunal gives this factor weight against the cancellation of his visa.

    The time that has elapsed since the non-compliance

37. It has been almost two years since the non-compliance. The Tribunal does not consider this to be a significant amount of time.  However in that time the applicant has stabilised his employment and his plans for further study.  He has learned English so that he has become fluent, in order to facilitate accessing further study in Australia. The Tribunal therefore accepts that he has used the time since the non-compliance responsibly to improve his circumstances here.

1. The Tribunal therefore gives this factor a little weight against cancelling the visa.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

2. There is no evidence before the Tribunal that the applicant has breached any laws in Australia. The Tribunal therefore gives this factor weight against the cancellation of his visa.

   Any contribution made by the holder to the community.

3. The applicant stated that he has occasionally donated money to charities in Australia. The Tribunal accepts this evidence.

4. He also gave evidence, which the Tribunal accepts, that he has paid taxes in Australia and has been continually working for an Australian employer in a sector suffering a serious worker shortage.

5. The Tribunal therefore considers that the applicant has made contributions to the Australian community through his work, payment of taxes, and occasional donations to charities.

6. The Tribunal gives this factor weight against the cancellation of his visa.

   Whether there would be consequential cancellations under s.140

7. There is no evidence of any persons in Australia whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa.

   The best interests of children

8. The applicant stated that there are no children whose interest would be affected if his visa remains cancelled.  The Tribunal therefore views this factor neutrally.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention

9. The Tribunal notes that the cancellation of the applicant’s visa could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 if he chooses to remain in Australia without a valid visa.  He may also face difficulties in being granted further visas in Australia and could be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion (PIC 4013).

10. While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if his visa is cancelled, he has benefited from holding a visa with respect to which he did not meet the central requirements.

11. The Tribunal acknowledges the difficulty the legal consequences of the visa cancellation will and may cause the applicant but they are intended consequences.  The Tribunal does not view them as unduly harsh or otherwise concerning in the circumstances.  The Tribunal does not view the mandatory consequences as a factor that weighs against the cancellation of the applicant’s visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

12. There is nothing to suggest that Australia's international obligations would be breached as a result of the cancellation. The Tribunal therefore views this factor neutrally.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

13. The applicant gave evidence that he sporadically helps his family financially, when they have the occasional extraordinary expense.  He also stated he earns much more in a week’s employment in Australia than he would in a month in Brazil, and therefore is able to help his family when they need financial help. The Tribunal accepts that there would be some hardship to the applicant’s family if he had to leave Australia and they could not continue to rely upon his financial assistance when they need, particularly with his father’s medical costs.

14. The Tribunal accepts that the applicant has formed close friendships in Australia, including with an Australian permanent resident here.  She gave evidence, which the Tribunal accepts, that she relies upon the applicant’s support here and will feel loss if he has to depart the country.

15. The applicant gave evidence that he feels settled in Australia, greatly appreciates the diversity in Australia, and has established a fulfilling life for himself here. The Tribunal accepts that it will cause him substantial disruption and financial and emotional hardship to have to leave Australia.

16. The Tribunal accepts there is currently a worker shortage in the sector in which the applicant is employed in Australia. The Tribunal therefore considers it will cause the applicant’s employer some hardship if the applicant was not able to continue his work here.

17. The Tribunal notes that the applicant’s intention to pursue further study in engineering in Australia, and to work as an engineer in Australia, will also be of value here.

18. The Tribunal further notes that if the applicant’s third Working Holiday visa had not been cancelled, it would have expired in March this year.  Therefore, setting aside the cancellation will not result in the applicant continuing to hold a third Working Holiday visa. The applicant stated he intends to apply for a further Working Holiday visa which he will now be eligible for because of a change in the criteria. The Tribunal accepts that setting aside the cancellation will allow the applicant to apply for the further visa and it will then be a matter for the department as to whether or not the visa is granted.  The Tribunal considers it not inappropriate to allow this possibility to be further explored by and determined by the department.

19. The Tribunal gives each of these matters weight against the cancellation of the applicant’s visa.

    Conclusion on the exercise of the discretion

20. The Tribunal has considered the totality of the applicant's circumstances.

21. Problems meeting a central criteria for the grant of a visa do not justify falsifying information to unlawfully overcome a legal and purposeful requirement.  The Tribunal places significant adverse weight upon the fact that the decision to grant the applicant’s visa was based upon incorrect answers to substantive and critical questions, and that the applicant was not entitled to the visa, having not met a central requirement for it.

22. However the Tribunal considers the majority of the discretionary factors sufficiently counter-balance the seriousness of the applicant’s non-compliance. The Tribunal acknowledges that cancellation of the applicant’s visa will result in a high level of disruption to his life and to his employer. The Tribunal also accepts that restrictions imposed due to the COVID pandemic increased the difficulty for him to find regional specified work, to a limited extent.  Despite the applicant’s lack of acknowledgment of full responsibility for the non-compliance, the Tribunal found him sincere regarding his current and ongoing intentions to be responsible and to constructively use his time in Australia in ways that will be of value not only to himself, but also to his employer, his family in Brazil, and potential future professional career contributions in Australia. The Tribunal also acknowledges that most of the evidence indicates that apart from the one instance of very serious non-compliance, the applicant has conducted himself lawfully and responsibly in Australia.

23. The applicant presented at hearing as a person who is caring and concerned for his friends and family and otherwise responsible in his personal life.  He showed a commitment to his family in Brazil, to improve his life and opportunities for both his sake and theirs.  He appeared quite distressed by the events of his wrongful actions and his inability to visit his family while his visa status was uncertain.

24. Further, the visa is past its expiry date so the Tribunal’s decision will not result in the applicant continuing to hold a valid third Working Holiday visa on the basis of his false information.  It will however mean there are less obstacles for the applicant in making a further visa application in Australia. It will then be a matter for the department whether or not the applicant is assessed to meet the criteria of any future visa grant, including relevant public interest criteria.

25. While the applicant’s non-compliance is of a highly serious nature the Tribunal considers that his otherwise commendable behaviour, and the hardship the cancellation may cause him, his family and his Australian employer, together with the passing of the expiry date of the visa, are sufficiently in the applicant’s favour for the Tribunal to decide that the applicant’s visa should not be cancelled.

26. 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 not be cancelled.

    decision

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Melissa McAdam
    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.