Burke (Migration)

[2021] AATA 5001

Burke (Migration) [2021] AATA 5001 (13 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kelsey Catherine Burke

CASE NUMBER:  2111879

HOME AFFAIRS REFERENCE(S):          BCC2020/2727638

MEMBER:Anne Grant

DATE:13 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 13 December 2021 at 1:17pm

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 – impact of the COVID19 pandemic – employer’s offer of sponsorship – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 189, 198
Migration Regulations 1994, Schedule 2 cl 417.211; Schedule 4, Public Interest Criterion 4013; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information and because they considered that the visa should be cancelled. The issue in the present case is therefore whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 2 December 2021 to give evidence and present arguments by video conference using the Microsoft Teams application.

4. 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

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 in the following respects:

   The applicant is alleged to have provided incorrect information in her application for a Working Holiday (Extension) visa when she:

   ● answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’;
   ● provided details of claimed employment with Lincara Pty Ltd, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
   ● answered ‘Yes’ to the declaration ‘Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa’.

   The above information is incorrect, as verification checks undertaken by the
   Department have concluded that the applicant never worked at the business, Lincara Pty Ltd.  Therefore she has not undertaken three months specified work in regional Australia.

9. In her response to the Notice of Intention to Consider Cancellation (NOICC) the applicant provided the following information which has been considered by the Tribunal:

   I am writing to you with regarding a Notice of Intention to Consider Cancellation (Cancellation ID C6ZXZ7G2Q, File Number BCC2020/2727638).
   To fully demonstrate the background surrounding this issue, I will require to demonstrate my
   education and work experience from Ireland, my place of birth and subsequently what has led to me being in this position in Australia.

   In Ireland, I completed a Bachelor of Business Honours degree specialising in Economics and Finance. I completed this four-year degree graduating with a First-Class Honours. From this point, it was clear a career in Finance was both a passion and the correct path for me. I then completed professional accounting exams in Management Accounting which then led to me securing a full-time paid role as a Management Accountant for two and a half years in Ireland. At this point with the two and a half years accounting experience, I departed for Australia on a 417 Working Holiday Visa in January 2020 to continue working in this sector.

   My search to make connections in the accounting industry in Australia began long before January 2020 (dating back to mid-2019 in Ireland) in the hopes of having some interviews lined up upon my arrival in Australia. Naturally, companies and recruitment agencies I spoke to while in Ireland advised the preference of meeting while I was present in Australia yet noted their interest with me as a person and my skillset. Within my first week in Australia, I had arranged face to face meetings and interviews with companies and recruitment agencies throughout Sydney. I have a strong drive and passion for working and unlike some fellow Working Holiday Visa holders before me, I had a desire to begin work as soon as I possibly could rather than travel.

   As these interviews and meetings were unfolding with second and third round interviews emerging and prospects looking positive, COVID-19 was quickly becoming a worldwide pandemic. I secured, signed a contract, and began work in my first position in Sydney as an Accountant in a consulting firm days before Sydney went into its first lockdown in March 2020. I was in the office two days before the news hit that the office would be shutting until deemed safe to reopen and I would begin working from home. I felt very grateful to have secured this role in my area of work, days before Sydney locked down. The company was an amazing place to work and the workload of the team increased significantly due to COVID-19 which I greatly assisted with. In turn, the company expressed they were also lucky to have me during this challenging time.

   My contract was for a six-month period, in line with the requirements of a Working Holiday Visa. I expressed my strong interest to management of extending this contract in the form of an employer sponsored visa to allow me to remain within this role and Australia after my Working Holiday Visa expiration date of January 2021. This company had never sponsored an employee before due to the team consisting of primarily Australian Citizens and Permanent Residents. I was honoured the company researched and investigated legal and administrative options of providing me with a sponsored visa as they recognised my skills and good character and wanted to keep me within the business also. With my career being on the skilled shortage list and namely on the skills priority list, this was a mutually beneficial decision with myself and the company.

   As proceedings to provide me with an employer sponsored visa were progressing, a shock to the Finance team and later the wider company emerged. Due to COVID-19 and a cost cutting exercise in place due to the pandemic, the Finance team was being offshored. This meant contractors were the first to be let go, followed by the remaining members of the team over the course of the following year. This news emerged in late July 2020, six months into my twelve-month working holiday visa. I was given one weeks’ notice as per my contract whereby I would cease to be employed by this company with COVID-19 as the cause. I was devastated to lose a great accounting job and also the sponsored visa that was on the horizon. I have attached a character reference from my manager in this role confirming the circumstances stated above.

   I did not have time to waste and had to progress quickly to secure another accounting role that would provide a sponsored visa as time was ticking on my current Working Holiday Visa. I am a very determined and driven person always focused on providing meaning through my work. I secured my next accounting role within one day of being let go from the previous position. This demonstrates the quality of my outputs within the accounting industry and my character. This role was initially a three-month maternity leave contract whereby an employer sponsored visa was mentioned by the employer. It was discussed when the maternity leave woman would come back into the role, I would then move into an alternative role within the team and initiate a sponsored visa from there. The team was noted to have constant movement and turnover whereby filling another role in the accounting team would be the way forward. Three months passed and the maternity leave woman came back to the business and unfortunately and unexpectedly to the business, there were no vacant roles within the accounting team for me to move into. The historical turnover and movement within the team was again impacted by COVID-19. Understandably, individuals within the team were afraid to move from secure roles as they previously would have pre pandemic. I was in the same
   position once again, being left with the prospect of an employer sponsored visa being removed again due to COVID-19.

   The panic once again set in as to how to lengthen my time in Australia working as an accountant. This take us up to mid-November. There was approximately sixty days remaining on my Working Holiday Visa due to expire in January 2021. This is where I became a victim of fraud whereby false or misleading documents were provided to the Department of Home Affairs by an individual in order to provide me with a second year Working Holiday Visa.

   This fraudulent individual preyed on my vulnerability. In my vulnerable state battling visa timeframes and overall COVID-19, I made a mistake and became a victim of fraud. I understand the grounds for the Department providing this notice of intention to consider to cancel my visa but I plea for you to understand where emotionally and mentally I stood at this time in my life due to COVID-19 and the benefits I have stated I believe I bring to Australia.

   I beg for the Department to consider the skills and qualifications I offer the Australian workforce. From March 2020 onwards, I have been employed by Australian employers in an occupation (Management Accountant) that is on the skills shortage list and the skills priority list. More recently I have been working in Internal Audit which is also mentioned on these lists. I believe my work and skills are assisting the Australian workforce in these challenging times brought to us by way of COVID-19.

   I work in an occupation that is currently in demand for workers. I believe I am assisting Australia fill that gap by providing my skills across the management accounting and internal audit sectors. In terms of my character, I have never been involved with the Police either here in Australia or in Ireland. I have attached both current police certificates to confirm this. Additionally, the only other visa I have held in Australia (417 Working Holiday Visa) has never been breached and I have adhered to all clauses on this visa such as not working longer than six months with one employer.
   [8828201] CLD202123520946 - NOICC Response - 23 08 2021 - B
   I am a hard-working and educated professional wanting to give my full ability and skillset to the Australian workforce in these challenging times. I have attached a further character reference by a housemate who has lived with me my entire time in Australia who has witnessed my work ethic, delivery and general character. By nature of my work, I am filling gaps where companies have shortages and therefore, I am helping with the economic activity of business within Australia. In a recent role, there was an area of development being pursued within the industry of FMCG/Commercial which is new to the business and skill sets were not present in the team to deal with this development. This was partly the basis I was employed as FMCG and Commercial businesses of the same nature of the opportunity are the industry I trained in as a management accountant in Ireland. I offer insights to these areas to help develop this Australian business that was not seen in the team previously, I am also filling this gap and shortage.

   A visa cancellation during this pandemic would be extremely devastating and negatively impacting both mentally and emotionally, while knowing I have so much to offer in terms of skills, economic benefits, and positive character to Australia.

   Additionally, I have family ties here in Sydney. My uncle who is now an Australian Citizen has lived in Sydney for fifteen plus years. He has now children that were born as Australian Citizens. I am the only connection to family that his family have. His wife is German with no siblings so there are also no family ties on her side here. Due to COVID-19 and the international borders being closed, there are no opportunities for my uncle or his family to visit family and have a close support network. On compassionate grounds, I am the one source of family available here to my uncle, his wife and their children who are separated from family in these challenging times.

   With all the above factors combined, I plea for the Department to see the benefits I bring to
   Australia in terms of good character, a professional skill set in demand and the family compassionate grounds mentioned. With these attributes in mind, I plea for a waiver to be granted on the cancellation of my visa.

   If there is any further information to assist your decision, please do not hesitate to contact me with further queries and requests to strengthen any areas in question.

   Thank you and kind regards,

   Kelsey Burke.

10. The applicant also provided supporting letters and documents to the Department and to the Tribunal as follows, which have been considered by the Tribunal:

    ·Irish Police Certificate of Character confirming that the applicant has not been convicted of any crime relating to the Republic of Ireland.

    ·Character reference from Elaine McCarthy, the applicant’s house mate in Sydney since January 2020, confirming she is intelligent and dedicated to her occupation, and that she is reliable hard working and dedicated to providing a ‘value add’ business to Australia’s economy. 

    ·Australia Federal Police National Police Certificate confirming that the applicant has no disclosable court outcomes recorded against her.

    ·Letter in Support from Mr Benjamine Rocke, who was the Project Finance Manager for Worley Services (Advisian) where the applicant worked from January 2020.  Mr Rocke says that the applicant is trustworthy, hardworking and of good character.  He reports that she was a star performer of the team.  He also confirms that the company was considering providing visa sponsorship for the applicant and renew her contract but then a hiring freeze was enacted as part of policy directions for COVID19.  Mr Rocke suggests that the applicant deserves an ongoing place in the Australian community. 

    ·A further statement from the applicant in which she asks for mercy due to her past and current circumstances.  In this statement, the applicant declares her apologies for the circumstances she has been involved in that lead to the non-compliance.  The applicant notes that she made a mistake she will spend the rest of her life regretting, and hopes she can somehow rectify it.  The applicant states that the act of non-compliance was out of character but the effects of COVID19 left her in a position she has never been in before where she panicked and ultimately let herself and Australia down.   At that time she was surrounded by fear and anxiety and she ‘fell victim to an act of noncompliance that was offered before her’.  She is passionate about her work and is filling a skilled shortage gap as an accountant in Australia and contributed to the workforce in a time where accountants were in high demand and low supply.   The applicant reiterates the circumstances surrounding her work and visa issues and the effect of COVID19 as noted in her COISS, included above.     The applicant notes that the falling through of various jobs has placed her under mental pressure, stress and anxiety, and now the impacts of visa cancellation have heightened that stress and anxiety even further.  She refers to assisting an elderly neighbour during the lockdowns, and that she continues to do so.  The applicant also states that she is very remorseful.

11. At hearing, the applicant confirmed the information in the documents and COISS reply noted above that she knew that false information was to be included in an application for a new working holiday visa but she was desperate, because she had been unable to secure and finalise sponsorship as an accountant on an employer sponsored visa due to the pandemic.

12. The applicant has therefore conceded that she has failed to comply with s.101 because she provided false information in the application for a visa, completed by an agent on her behalf. She did not complete any regional work which would have met the criteria as ‘specified work’.

13. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

14. 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).

15. 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. 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.

16. While these factors 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.

    The correct information

1. At hearing the applicant generally confirmed the information in her COISS response and in the statement she provided to the Tribunal.  She gave evidence that she had worked in various management accounting jobs in the Sydney area since arriving in Australia.  Her goal was always to find a long term employer and apply for a sponsored employee visa.  As detailed in the submissions she had made, she confirmed that on a number of occasions, she got close to a sponsorship but then, due to the effects of the pandemic, the applications  failed to materialise or progress. She confirmed that she did not work in regional areas or in any prescribed role.  Because the applicant did not complete other, ‘specified work’ in regional Australia, consideration of the correct information actually weighs in favour of cancelling the visa.

   The content of the genuine document (if any)

2. There is no genuine document being considered in this review. 

   Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on the incorrect information

3. As conceded by the applicant at hearing, the decision to grant the visa was wholly based on the incorrect information which was provided.  The requirement to perform at least 3 months specified work in regional Australia is a prerequisite to the grant of the visa in regulation 417.211.  Without the incorrect information, the visa would not have been granted.  Consideration of this factor weighs heavily in favour of cancelling the visa.

   The circumstances in which the non-compliance occurred.

4. As noted above, in her NOICC and in evidence before the Tribunal, the applicant explained that she had always hoped and intended to find a permanent sponsored employment visa in Australia and had made every effort to finalise an appropriate visa prior to the expiration of her first working holiday visa.  However, the effects of the pandemic worked against her and the last plausible option she had collapsed around two months before the end of her visa, meaning she didn’t have time to find ‘specified work’ in regional Australia before the expiration of her visa.  At that time, she was desperate to continue her search for a sponsorship in Australia and did not want to return to Ireland.

5. The applicant gave evidence that she was from a rural part of Ireland (Waterford) and had no professional work connections there.  She suggested that the Irish job market for accounting was very ‘closed’ and relied on who you know, not what you know, even in large urban centres like Dublin.  In Australia she had been able to perform well and has been given opportunities for advancement based on her skills and performance, rather than her connections.  She desperately wants to continue her career in Australia. It was when she was in that state of desperation that she contacted a person online that her friends had referred her to as being able to help people in her situation.  She confirmed that she knew that this person (known only through an email as “goldenfish”) would lodge an application on her behalf for an extension to her 417 visa based on incorrect information; because she was aware that she was not qualified for that visa. 

6. The applicant gave evidence that she did not contact a more reputable or legitimate agent because she felt she was running out of time.  She did not contact the Department to enquire about COVID19 arrangements or visas.  She felt that such visas would be too unpredictable for her to reliably find work and a sponsorship.

7. Although the applicant claimed in her written submissions that she was ‘the victim of fraud’,  and had fallen victim to ‘an act of non-compliance’ as discussed with her at hearing, this is not accepted as a fair assessment of her situation.  In fact, she got exactly what she paid for.

8. Consideration of the circumstances in which the non-compliance occurred weighs heavily in favour of cancelling the visa because the applicant was aware that false information would be used to apply for the visa, that she was not qualified for the visa, and because she made no effort to extend her stay by legitimate means, for example by enquiring about other visas or arrangements which she might have been entitled to. 

   The present circumstances of the visa holder

9. The Tribunal accepts the applicant’s evidence that she has ongoing work and had located an employer who was willing to sponsor her on a 482 visa over the past year.  The application was actually commenced in 2021 but she had to withdraw it on legal advice due to the effects of the cancellation.  She has relatives in Ireland, but also has an uncle in Australia who she is close to, and she represents the only family he has here in Australia, apart from his wife and children.  She has made friends in Australia and includes the elderly neighbour referred to in her statement (who she has become close to over  the past two ‘pandemic’ years and who she assists however she can) among those friends. She has also made friends at each of the workplaces she has worked in and knows she has a lot to contribute to Australian businesses and the economy with her accounting skills.

10. However it must be noted, as discussed with the applicant, that this employment and contributions to the Australian economy, and also her friendships, have been developed at least partially during a period where she was in Australia on a visa for which she was not qualified.  

11. Consideration of the present circumstances of the applicant weigh lightly against cancelling the visa.

    The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958

12. The applicant has behaved in accordance with her obligations by responding to the NoICC and has acknowledged the circumstances of the non-compliance.  This consideration will be given a little weight against cancelling the visa. 

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

13. The information and evidence before the Tribunal does not suggest that there are any other instances of non-compliance by the applicant, and this will be given a little weight against cancelling the visa.

    The time that has elapsed since the non-compliance

14. There has been 13 months since the incorrect information was provided and the visa granted on that basis.  The Tribunal notes and accepts that those 13 months have been extraordinary and challenging for temporary visa holders in Australia, with ongoing uncertainty and incapacity to return to family, a fear of contracting the COVID19 virus and also an unstable job market.    The applicant has provided letters of support from a previous employer and  a friend which attest to her strong work ethic and good character and the Tribunal accepts those letters as genuine.  The Tribunal accepts also that the applicant has assisted elderly neighbours during the pandemic by assisting with chores and shopping as necessary, and has made new friendships as a result.  The Tribunal accepts that the applicant is a committed and diligent employee and friend and that she has contributed to Australia’s society during the global pandemic.  Consideration of the time that has elapsed since the non-compliance weighs moderately against cancelling the visa.

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

15. There is no information or evidence before the Tribunal which suggests that the applicant has breached any law in Australia at any time.  This will be given some weight against cancelling the visa.

    Any contribution made by the holder to the community

16. As noted above and in the applicant’s COICC the applicant has worked consistently in Australia in a field which is on the skills shortage list and the skills priority list during a global pandemic and has assisted elderly neighbours during that time also.  These contributions will be given some weight against cancelling the visa.   

    Whether there are persons in Australia whose visas would or may be cancelled consequentially

17. There are no persons whose visa would or may be cancelled consequentially on the cancellation of the applicant’s visa.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

18. The information and evidence before the Tribunal does not suggest that there are any obligations under international agreements that would or may be breached as a result of the visa cancellation in this case. 

    Whether there are mandatory legal consequences to a cancellation decision

19. If the visa is cancelled, the visa holder will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart Australia, as she would no longer hold a valid visa.

20. A bar under section 48 of the Act will also be imposed, limiting the visa holder’s options to apply for further visas from within Australia. Furthermore, she will also be affected by Public Interest Criterion 4013, where she may be prevented from being granted certain types of visas for a period of three years from the date of visa cancellation. 

21. The Tribunal has borne in mind the applicant’s drive and professional career aspirations in Australia and that cancelling the visa is likely to delay any possibility for her to pursue those aspirations in the short term.  However it must also be noted that the applicant has had the benefit of an additional13 months of valuable work experience in Australia to which she was, objectively, not entitled - due to the incorrect information which was provided.  This factor will be given a little weight against cancelling the visa.  

    Any other relevant matters

22. It is acknowledged that the cancellation of the visa will cause the applicant significant distress, because it will delay (and may potentially prevent) her from pursuing her long time dream of living and working in Australia permanently.  The Tribunal acknowledges also that the applicant has repeatedly expressed genuine regret for providing incorrect information here under consideration, and that she did so at a time when she felt she had no other alternative.  These factors will be given some weight against cancelling the visa.

    Conclusion

23. The Tribunal found the applicant to be a frank and credible witness and accepts her genuine remorse for the incorrect information being provided, and the circumstances in which it occurred.  Nonetheless, the Tribunal considers that, after weighing the various factors outlined above, the fact that the applicant knowingly employed an agent who would assist her to lodge an application which was based on false information and gained a visa for which she was not qualified weighs heavily toward cancelling the visa, along with the fact that the visa would not have been granted without the incorrect information.  The Tribunal considers that the matters and considerations that weigh towards cancelling the visa significantly outweigh those that weigh against doing so.  Having taken all of the factors noted above and as required into consideration, the Tribunal considers that the visa should be cancelled.

24. 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

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Anne Grant
    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.