Cahill (Migration)

Cahill (Migration) [2022] AATA 110 (11 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rossa Cahill
CASE NUMBER:  2109794
HOME AFFAIRS REFERENCE(S):          BCC2020/2401562
MEMBER:Melissa McAdam
DATE:11 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 11 January 2022 at 10:52am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in second extension application – 6 months of specified work in regional area while holding first extension – verification checks showed applicant never worked at claimed business – discretion to cancel visa – non-compliance conceded – mental health after death of partner – paid third party to prepare and lodge application – steady non-specified work and strong support network – intention to apply for permanent residency – no approach to department – incorrect answers also given in first extension application, through another third party – hardship if visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211(6)
CASE
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with obligations under 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
On 13 July 2021 the delegate sent a notice under s.107 of the Act of intention to consider cancellation of the applicant’s visa (the NOICC). In the NOICC the delegate set out the following:
Particulars of the possible non-compliance:
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 06 September 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 while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’ you answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, you provided the following answers (in part):
Employer Details
Legal registered name: Banana Exchange Pty Ltd
Trading name: Banana Exchange Pty Ltd
Australian Business Number (ABN): 86052441139
Employer business address
Address: Banana Exchange Pty Ltd
PO Box 442
Suburb / Town: Tully
State / Territory Queensland
Postcode: 4854
Work conditions
Employment type: Direct employment
Industry type: Agriculture, forestry and fishing
Industry type sub-group: Plant and animal cultivation
Description of duties Generally we could get to the farm at 6.30am. Then throughout
the day I was generally in the factory where I would undertake a variety of different roles ranging from hanging, clustering, sorting and packing Bananas until 3.30pm with 2 x 15 minute cigarette breaks and 1 x 30 lunch break
Date from: 09 March 2020
Date to: 30 August 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 while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’, you answered ‘Yes’.
Based on the above information, as well as meeting other relevant criteria, you were granted your Working Holiday (Extension) visa on 06 September 2020.
Subsequent information received by the Department
The Department initiated employment verification checks with Banana Exchange Pty Ltd, the business registered under ABN 86052441139 to verify your employment claims. On 25 September 2020, Banana Exchange Pty Ltd contacted the Department and advised that you never worked at their business for 190 days, from 09 March 2020 to 30 August 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 while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’;
● provided details of claimed employment with Banana Exchange Pty Ltd at the section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’.
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, Banana Exchange Pty Ltd. Therefore, you have not undertaken six months specified work in regional Australia.
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
On 26 July 2021 the applicant provided a written response to the NOICC by email. In her response she outlined the following:
I am writing this email in response to the NOICC I received on July 13th.
The NOICC stated I breached section 101 (b) of the 1958 Migration act in response to
this allegation it is correct and I have not completed my regional work.
I am sincerely apologetic and hope this email sheds some light on the circumstances
which led me to make this decision.
When I first arrived in Australia I came over with my partner of three years to start a new life together. However in February 2019 he suddenly passed away due to morphine toxicity. As a result my whole life was changed.
It had a detrimental effect on my mental health as I was devastated. I didn’t want to
return to Ireland as I had no where to live, I lived with Mark at home and I don’t have
relationship with my mother.
When researching regional work and what I’ve heard from word-of-mouth it wouldn’t be a viable option for me to go. I think it would have negatively affected my mental health and made me much worse as i heard it involves heavily partying with alcohol and narcotics. The choice to stay in Sydney seemed much more safe and secure.
From this I paid someone I thought could help me $2000 to lodge my Visa. As I was in a bad headspace I did not think it through and just wanted security. In hindsight I really regret my decision to lie and I am truly sorry. This is out of character for me as I have high moral standards normally. I can only put this down to extreme stress.
At the moment I am still suffering with depression but I believe that staying in Sydney
has helped me, as I have a strong support network now and a steady job. I am also Seeing a counsellor weekly to help me process everything.
I have attached below a copy of my late partners death certificate and the coroners report of cause of death.
I hope this email has helped clarify why I made the decisions I did. If my Visa were to be cancelled It would be devastating to me and my mental health As I have built a life here which has helped me overcome what has happened.
Information to the Tribunal
Pre-Hearing Submissions
On 16 November 2021 the applicant provided the following written materials to the Tribunal:
-A letter from the applicant’s counsellor that the applicant suffers from depression, has no support from her parents in Ireland and that it would help her mental well-being to stay in Australia.
-A reference letter from a friend who worked with the applicant at a hairdressing salon in the past, stating that the applicant has support in Australia and it would help her to stay.
-A letter from a psychotherapist in Dublin stating that the applicant attended her professionally in December 2019 suffering from PTSD.
Hearing
The applicant appeared before the Tribunal on 23 November 2021 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.She is living in Bondi. Since coming to Australia she has never lived outside of Sydney, even for a short period of time.
b.She works as a hair stylist in Bondi.
c.She did not complete specified work for 6 months in regional Australia. She did provide incorrect answers in her visa application.
d.She has not returned to Ireland because she has no home there. She moved to Australia with her partner and two other couples who are her main support. She has a good support system in Australia. She has no relationship with her parents in Ireland.
e.She paid $2000 to a person whose name was Lee Hansol to get her third working holiday visa. ‘Lee Hansol’ might not be the person’s real name. She was given Lee Hansol’s name and details by a friend of friend as word was going around about Lee Hansol and everyone was doing this.
f.The applicant was in contact with Lee Hansol by email. She may still have copies of their email communication. She first contacted Lee Hansol in June or July 2020. At the time she understood that she did not meet the central criteria for the grant of a third working holiday visa.
g.If her non-compliance had not been discovered she intended to apply for permanent residence in Australia as hairdressing is listed as one of the skill shortages for the grant of a visa. She has been saving up for the visa application fee.
h.She did not contact the department to discuss her difficulties and possible visa options before she applied for the third working holiday visa. She did try to see if she could go on a COVID visa but she did not meet the criteria.
i.She did not make any attempts to obtain specified work in regional Australia. She was suffering very badly with her mental health and panic attacks. She heard worrying stories about what people were doing.
j.She also did not complete specified work in regional Australia to obtain her second Working Holiday visa. She also provided incorrect answers in that application for her second Working Holiday visa. She did not do this through Lee Hansol but through a different person. At the time she was supposed to be sponsored for a visa by her employers, Toni & Guy, but they let her down at the last minute and she did not want to go home. She provided incorrect answers in her second Working holiday visa application as she had not completed any specified work in regional Australia. At the time she knew she was doing the wrong thing but did not realise how serious it was. She did not realise the extent of how bad it was because everyone was doing it.
k.After her partner passed away in February 2019 she flew back to Ireland for two weeks to take his body there and to bury him.
l.She also travelled back to Ireland for three weeks over Christmas 2019 to spend time with her partner’s family in Dublin and to visit his grave.
m.She apologises for providing incorrect information in her visa application. In hindsight she completely regrets it. It was due to the unforeseen circumstances and because she did not want to go home. She wishes she hadn’t done it. If she hadn’t she would probably be back in Ireland and unsure of her mental state. She did not have money at the time for a Student visa.
n.She and her partner Mark had wanted to go off and do regional work together. They talked about it but unfortunately he passed away.
o.She currently has a good job and somewhere to live and a good support system around her. Back home she would not have anywhere to live. COVID is also bad in Ireland. She could find somewhere to live in Ireland but could not afford to live on her own as the rents are very high and the wages are low. She has no family home in Ireland. She can afford the high rent in Bondi because her salary is good.
p.She has not breached any laws in Australia.
q.She has not made any contributions to the community in Australia because she has been very focussed upon getting her mental health better. She did do some fundraising for the foundation which helped pay for her partner’s body to be taken back to Ireland.
r.She has not formed any relationship with any children in Australia.
s.She thinks that returning to Ireland will affect her mental health a lot. She suffers from depression and panic attacks and has nowhere to live in Ireland. She does not know what she would do there. Her partner’s family would be able to give her emotional support but she would not be able to live with them. They are all moving on with their lives.
t.She is seeing a counsellor in Australia. She is not receiving treatment from any other professional. She is not on any medication. She keeps a journal and practices meditation to improve her mental health. This helps her during panic attacks.
u.If her visa is not cancelled she plans to apply for permanent residence through her work as a hairdresser. She has met with a migration agent about this. She does not know if she can apply for the visa off-shore.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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?
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) of the Act in the following respects:
That the applicant provided incorrect information in her application for a Working Holiday (Extension) visa when she:
● 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 while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’;
● provided details of claimed employment with Banana Exchange Pty Ltd at the section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’.
The above information was considered incorrect, as verification checks undertaken by the Department concluded that the applicant never worked for 190 days at the business, Banana Exchange Pty Ltd. Therefore, she had not undertaken six months specified work in regional Australia.
Based on the above information, it appeared the applicant provided incorrect answers in support of her Working Holiday (Extension) visa application and had not complied with sections 101(b) of the Act.
The applicant has confirmed that she did not work for Banana Exchange Pty Ltd or complete six months of specified work in regional Australia. On the evidence before it the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
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.

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
The correct information is that the applicant had not completed six months, or any, specified work in regional Australia at the time of her third subclass 417 visa application.
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)
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
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.
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.
The Tribunal therefore considers that the grant of the second 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
The applicant gave evidence that the non-compliance occurred because she did not want to return to Ireland. She was aware she did not meet the central requirement for the grant of the visa so used the services of a person to make the visa application on her behalf using incorrect information, because ‘everyone was doing it’.
She stated she was in poor mental health at the time so had not completed, or tried to complete, specified work in regional Australia.
The Tribunal accepts that the applicant is struggling with mental health issues and that the death of her partner would have deeply and adversely impacted her. However this is not a defensible reason to provide false information to obtain a visa she was not entitled to. The applicant gave evidence that she made little effort to explore alternative lawful ways to remain in Australia or to depart before the expiration of her visa.
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
The applicant gave evidence that she is employed in the hairdressing industry and may have a pathway through her skills to permanent residency in Australia. She is also receiving counselling and has established a good support network of friends in Australia.
The Tribunal accepts that the applicant’s current circumstances show a level of establishment in, and connection to, Australia. The Tribunal accepts that the cancellation of her visa will be disruptive to her current circumstances. The Tribunal gives this factor some weight against the cancellation of her 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
There is no adverse information before the Tribunal regarding the applicant's subsequent behaviour concerning her obligations. This factor weighs against the cancellation of her visa.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant gave evidence at hearing that she has a previous instance of non-compliance in relation to her application for a second working holiday visa. She stated that she did not complete the required three months of regional specified work but had stated, incorrectly, in the visa application that she had completed this. The applicant did not comply with her s.101(b) obligations in respect of her second working holiday visa application.
The Tribunal therefore considers this a matter which weighs in favour of cancellation of the visa.
The time that has elapsed since the non-compliance
It has been approximately 15 months since the applicant’s non-compliance. The Tribunal does not consider this to be a significant amount of time and accordingly considers this factor neutrally.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence or indication before the Tribunal that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal gives this factor weight against the cancellation of her visa.
Any contribution made by the holder to the community
The applicant gave evidence that she has been unable to contribute to the community because of her poor mental health. She did state she raised money for a charity organisation. The Tribunal accepts this evidence and gives this factor some weight against the cancellation of her visa.
Whether there would be consequential cancellations under s.140
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.
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
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. She may also face difficulties in being granted further visas in Australia and could be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion (PIC 4013).
While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if her visa is cancelled, she has benefited from holding a visa with respect to which she did not meet the central requirement.
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
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
The applicant has presented evidence of wanting to stay in Australia to continue to work and be with her friends here. She stated that there is nothing for her in Ireland as she does not have a home or work there.
The Tribunal accepts it will be emotionally hard upon the applicant and disruptive to her life if she is required to depart Australia. The Tribunal accepts that it will take some time to re-establish herself securely in Ireland.
The Tribunal therefore gives this factor weight against the cancellation of her visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the totality of the applicant's circumstances.
The Tribunal acknowledges that the applicant has experienced adversity in Australia with regard to her mental health and the death of her partner. The Tribunal also acknowledges that cancellation of the visa will result in disruption to the applicant’s life and some hardship for her if she returns to Ireland. However the Tribunal places greater weight on the fact that the decision to grant the 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. Her actions were deliberate with the intent to obtain a visa based upon false information.
In the Tribunal's view, the fact that the decision was based on the incorrect answers and the circumstances of the non-compliance outweigh the other considerations.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 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.

[2022] AATA 110

11 January 2022

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