Coates (Migration)

Coates (Migration) [2022] AATA 2588 (27 July 2022)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr James Andrew Coates
REPRESENTATIVE:  Mr Adeel Khan
CASE NUMBER:  2204397
HOME AFFAIRS REFERENCE(S):          BCC2021/1107511
MEMBER:Mark Bishop
DATE OF DECISION:  27 July 2022
DATE CORRIGENDUM
SIGNED:5 August 2022
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
- In paragraph 9, replace ‘Mat Mining Pty Limited’ with ‘Stone Axe Pastoral’

Mark Bishop
Senior Member
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr James Andrew Coates
REPRESENTATIVE:  Mr Adeel Khan
CASE NUMBER:  2204397
HOME AFFAIRS REFERENCE(S):          BCC2021/1107511
MEMBER:Mark Bishop
DATE:27 July 2022
PLACE OF DECISION:  Melbourne
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 27 July 2022 at 10:53am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information provided in second extension application – six months of specified work in regional area while holding first extension – verification checks – discretion to cancel visa – physical and mental health – COVID restrictions and concern for family and returning to home country – paid third party to complete and lodge application – unaware of contents of application – acknowledgment of responsibility – current work on major infrastructure project and employer’s interest in sponsoring him – relationship with visa holder from another country – hardship if visa cancelled – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41
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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information in the Working Holiday (Extension) visa application as he did not work at the named employer. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 27 July 2022 to give evidence and present arguments. The applicant’s partner also gave evidence to the Tribunal. At the conclusion of the hearing the applicant’s lawyer provided additional oral submissions to the Tribunal. The applicant provided a copy of the decision record to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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 the following section 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.
·The applicant provided employer detail, employer business and address, work conditions and period of employment.
·The department initiated employment verification checks with Stone Axe Pastoral, the business registered under ABN 14603641372, to verify the visa holder’s employment claims. On 18 May 2021, Stone Axe Pastoral contacted the department and advised that the visa holder had never worked at the business, from 06 April 2020 to 11 October 2020.
The department made a finding the information provided by the applicant was incorrect, as verification checks undertaken by the department concluded that the applicant never worked at the business, Mat Mining Pty Limited. Therefore the applicant did not undertake six months specified subclass 417 work.
For these reasons, the Tribunal finds that there was non-compliance with s 101 of the Act 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 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.
In response to the NOICC (Doc ID number 9597798 ) the applicant provided a written response (Doc ID number 9597800). In summary the applicant advised as follows:
·The visa holder claims that he provided the relevant details to the third party who lodged his visa application on his behalf.
·The visa holder is apologetic that he did not verify the documents before it was submitted to the Department.
In response giving reasons as to why the visa should not be cancelled the applicant advised (in addition to the summary provided in paragraph 13 above) as follows:
·The visa holder was worried and stressed with the date his visa was due to cease getting closer.
·After speaking with some friends, he was put into contact with a third party who helped him submit an application on his behalf. He was required to fill out a questionnaire and also provide a payment.
·The visa holder states that he was not in the right state of mind and made the decision to proceed with submitting the visa application to the Department.
·Visa holder claims that at the time of the application he was struggling with mental health due to his concern for his family in England during the pandemic.
·The visa holder states that he was impacted by the COVID-19 pandemic and New South Wales lockdowns.
·He admits that it was his fault for not verifying his visa application before it was submitted and apologises for his actions.
·The visa holder’s mother’s death anniversary further impacted his mental health.
·The visa holder is currently employed as a bricklayer on the WestConnex project and that the employer has expressed an interest in sponsoring him.
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 Tribunal is also required to consider both the prescribed matters, where relevant or indicate where not relevant; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:
·whether there would be consequential cancellations under s 140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
On 25 July 2022 the applicant provided written submissions to the Tribunal. The Tribunal summarises these submissions as follows:
·The correct information is that the applicant was not employed by Stone Axe Pastoral. The grant of the Working holiday Visa (Extension) was based on the incorrect information provided. The applicant acknowledges he had not undertaken any specified work in regional Australia at the relevant time.
·The applicant failed to undertake the required work in the context of Covid-19. The applicant struggles to find employment during the requisite period, noting the limited employment opportunities during such time, widespread uncertainty, border closures an ongoing restrictions in place.
·The applicant’s circumstances and lack of sound decision making was exacerbated not only by Covid-19 but also the personal circumstances of the applicant. In addition the applicant had previously had a traumatic experience when undertaking regional work on a banana farm in Cairns whereby he suffered from a seizure while working, as a result of the heat.
·The applicant suffered from anxiety, which was exacerbated by the Covid-19 climate, difficulties securing employment, financial hardship, concerns for his family in the UK, and fear of returning to a country where Covid-19 was rampant and unemployment rated were high. The applicant’s mental health continued to decline.
·At the time of lodgement of the application the applicant was not in the right state of mind and had reduce capacity to think clearly and make appropriate decisions. The adverse behaviour of a person who is affected by mental illness and whose mental health contribute to his offending in a material way should be regarded as less culpable than an ordinary person.
·The applicant engaged an agent, the applicant was not aware of the detail of the application, he never met the agent, he placed too much trust in his agent and with hindsight this was a regrettable decision. The applicant acknowledges he did not take an adequate level of responsibility.
·The applicant outlined his present circumstances as a bricklayer working on a large scale civil engineering project. He has worked for many years in this field and will continue to do so. The applicant is known to be a highly valued and skilled employee.
·The applicant has formed a long term relationship with a citizen of Colombia who resides in Sydney. The applicant and his partner have been in a de facto relationship for 20 months. The applicant’s partner intends to remain in Sydney and the departure of the applicant would lead to a breakdown in their relationship.
·Departure from Australia will cause the applicant to be dependent on his family in the UK and will cause significant hardship.
In addition to the above background summary the applicant addressed other relevant requirements set out in reg 2.41 of the Regulations. The applicant provided significant supporting documentation to the Tribunal.
The Tribunal now turns to consider the above as follows:
(a) the correct information
The correct information is the applicant did not undertake specified work in regional Australia as defined in the legislative instrument in effect at the time for a period of six months; and he did not work for Stone Axe Pastoral (ABN 14603641372) between 06 April 2020 and 11 October 2020. The correct information is significantly different from the information provided by the visa holder.
The Tribunal gives this aspect weight in favour of cancelling the visa.
(b) the content of the genuine document (if any)
No genuine document is being considered. As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration.
(c) 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 applicant’s employment details related to his regional work experience was central to the grant of his Working Holiday (Extension) visa. As the applicant has confirmed he provided incorrect information regarding his employment at Stone Axe Pastoral in his application for the Working Holiday (Extension) visa, the Tribunal considers the delegate made the decision to grant the visa based, in part, on this incorrect information, and the visa holder may have received an immigration benefit to which he may not have been entitled.
The Tribunal give this consideration some weight in favour of cancelling the visa.
(d) the circumstances in which the non-compliance occurred
The Tribunal has given consideration to the circumstances and background in which the applicant caused the lodgement of his application for a Working holiday visa. The Tribunal has considered detail and supporting documentation setting out the applicant suffered from anxiety, which was exacerbated by the Covid-19 climate, difficulties securing employment, financial hardship, concerns for his family in the UK, and fear of returning to a country where Covid-19 was rampant and unemployment rated were high.
The Tribunal considers each of the above circumstances with the exception of the period of Covid-19 considered alone to have only minimal weight.
The period of Covid-19 requires more detailed consideration.
Covid-19 was a period of immense societal dislocation in Australia. Draconian measures were imposed by various state governments in the name of sound public policy. The impact of many of those measures are still being felt in different parts of Australia. In particular in the case of immigrants and those holding temporary visas separated from family and loved ones there were critical concerns that many did not know how to address. Locking up borders, denying individuals and families the right to leave, restricting access to work, confining individuals and their families to home, imposing stringent public health obligations and requirements were clearly a feature of the Covid -19 period. Those measures were largely justified by the desire to seek optimum health incomes for the larger population. Different individuals react to strange circumstances or new circumstances in varying ways. It is not surprising to the Tribunal that the applicant felt isolated, remote, alone and that these feelings may have materially affected his decision making to the extent that he acted in a most unwise manner.
The applicant was responsible for the provision of false information to the department. In evidence to the Tribunal the applicant advised he was referred by a friend of a friend to an organisation called ‘Golden Fish’. He contacted them and filled out a questionnaire online. He provided personal detail only and paid a total fee of $2,500. He never attended the office of ‘Golden Fish’ and never met any person at that organisation. After providing detail sometime later he received advice his visa had been granted. He was not aware ‘Golden Fish’ provided false information. He did not seek out any independent advice during this advice and did not go online to other forums to seek advice.
The applicant advised he was desperate to remain in Australia and not return to the UK. This was because the extent of spread of Covid in England was much wider in that country than Australia and he was desperate to remain in a relative safe healthy environment and not get exposed to higher risk in the UK. He was aware the death rate from Covid in the UK was significantly higher than in Australia and did not wish to be exposed to that heightened risk.
However times of change with restrictions and limitations placed upon all is not sufficient reason not to comply with the law and seek appropriate advice. All during the period of Covid the relevant department continued to operate and provide service and advice to the wider public. All during the period of Covid institutions like the AAT continued to operate and provide service to visa holders and the like. All during the period of Covid online access to obtain information from the department was readily available. All during the period of Covid the applicant had the ability to obtain and put into practice the correct advice.
The Tribunal has considered the applicants submissions and has some sympathy for him in the circumstances.
The Tribunal considers the provision of incorrect information in an application for a visa to be a very serious matter.
The Tribunal gives little weight to the fact ‘Golden Fish’ acted unilaterally in an arguably unlawful manner and without instructions in providing false information to the department. The applicant is responsible for the provision of correct information at all times. This responsibility cannot be delegated or transferred to other persons or organisations.
However the Tribunal is sympathetic to the then circumstances of the applicant. It was entirely natural for the applicant to have major health fears about the spread of Covid in his country of origin. The spread of Covid in Australia was much more limited and controlled than elsewhere. Millions of Australians were prohibited from leaving their homes except in the direst of circumstances. In some states army personnel with weapons patrolled their streets to ensure enforcement of the law. It is not surprising non-citizens temporarily resident in Australia might be aware of the possible health ramifications of leaving Australia (if that was possible during the period of lockdown).

The Tribunal gives the existence of Covid-19, the applicant’s heed to public health warnings at that time and the applicant’s fear of contracting the virus if he should remove himself to a more unsafe environment significant weight in favour of not cancelling the visa.
(e) the present circumstances of the visa holder
The applicant acknowledges that it was his mistake for not verifying his documents before it was submitted to the Department. The applicant was apologetic about his actions and wishes to remain in Australia with the intention to continue working in his current occupation. The applicant has provided the background to his retention of an agent who acted improperly. The Tribunal has considered the lengthy period since the decision of the delegate. The Tribunal has considered the applicant’s submissions that address his continuing employment, his value as an employee, his personal connections and relationship and degree of personal support and psychological support from his partner.
The applicant has established for himself a relatively normal life in Australia. He is employed, earns a good income lives in a de facto relationship and provides and receives support from his partner. The applicant as a full time worker earning approximately $100,000 net per year is the major financial contributor to his family in Australia. There is nothing unusual about these circumstances. They are the circumstances of a young man of marriageable age with a good job earning a more than useful income.
The Tribunal gives these circumstances minor weight in favour of the applicant.
(f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
The Tribunal has considered paragraphs 41 to 45 of his submission. The applicant is now aware of his responsibility to act in a manner consistent with the law. The Tribunal accepts the applicant has not demonstrated any further behaviour of concern. In essence the applicant made a serious mistake, he regrets that mistake, he regrets the consequences of his own poor decision making and he now advises he will abide by the law going forward. The Tribunal accepts this position of the applicant. It is logical and sensible. To say otherwise would be absurd. The applicant now complies with the law and his subsequent behaviour is consistent with that of a person holding a temporary visa. It is the behaviour of expected of law abiding citizens and non-citizens alike.
The Tribunal gives this aspect no weight in favour of the applicant.
(g) any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is not aware of any further instances of non-compliance. The Tribunal gives this aspect neutral weight.
(h) the time that has elapsed since the non-compliance
The instance of non-compliance was 17 months ago. The applicant has continued to live and work in Australia. He has maintained his relationship. There is no evidence before the Tribunal to suggest the applicant has been anything other than a law abiding non-citizen in this period of time. This standard of behaviour is expected by all residents of and in Australia. It is not the exception. It is the norm.
The Tribunal gives no weight to the elapse of time.
(Note: there is no consideration (i) in the current legislation)
(j) any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant has not engaged in any further breaches of the law and there is no evidence of any further or additional non-compliance. Temporary visa holders or those seeking preferment in Australia (like all others) are expected to conform to the law at all time.
The Tribunal gives no weight to this aspect.
(k) any contribution made by the holder to the community
The applicant has maintained employment as a bricklayer in Sydney. This is a high wage job in Sydney. The applicant has continued to work for and enjoy a high income. The applicant works on important civil projects. The application’s work is no more or less important than numerous other instances of work in Australia. The applicant makes the same contribution as any other worker in Australia.
The Tribunal gives this aspect no weight.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
The Tribunal is not aware of any persons in Australia whose visas would, or may, be cancelled consequentially.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
The applicant advised the Tribunal he does not have any children.
The applicant has not made the Tribunal aware of any circumstances under this heading. The delegate made a finding “Departmental records indicate that no other person's visa would, or may, be consequentially cancelled under section 140 of the Act.” The applicant did not challenge this finding.
The Tribunal gives this aspect no weight.
Whether there are mandatory legal consequences to a cancellation decision.
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 he does not voluntarily depart Australia, as he would no longer hold a valid visa.
According to departmental records, the visa holder lodged an application for a Working Holiday (subclass 417) visa on 22 March 2022. When the visa holder lodged his application, he was granted an associated Bridging A (subclass 010) visa (BVA). If the Tribunal decides to cancel this visa, the BVA will be automatically cease as a result. The visa holder may be eligible to apply for a Bridging E (subclass 050) visa, which would allow him to remain lawful in Australia until the outcome of his pending application.
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, he will also be affected by Public Interest Criterion 4013, where he may be prevented from being granted certain types of visas for a period of three years from the date of visa cancellation.
The applicant has created the circumstances where there may be consequences to his own unwise decision making. Conditions of entry into Australia and conditions often attached to temporary visas are imposed in a lawful manner consistent with the dictates of the parliament. Whilst resident in Australia temporary visa holders are expected to conform with conditions attached to their visa and in accordance with the law. Sources of advice are many and varied. Any of the consequential and mandatory legal consequences as outlined above will occur only because of the actions of the applicant.
The Tribunal accepts that if the applicant’s visa is cancelled he could be liable to detention and subsequent removal from Australia. However, there is no information before the Tribunal to indicate the applicant would be unable or unwilling to voluntarily depart Australia.
The applicant’s lawyer advised the Tribunal that if his visa was cancelled he would have to go offshore and this would materially impact future opportunity for his employer to lodge a s 186 application.
This period of relocation offshore would materially impact his relationship.
As discussed with the applicant during the hearing he may not be prevented from making an application for a partner visa onshore. During the hearing the applicant’s representative submitted and the Tribunal accepts that the couple may face challenges in respect of their ability to meet Schedule 3 criteria.
The Tribunal gives this aspect minor weight in favour of not cancelling the visa.
Any other relevant matters including the degree of hardship that may be caused to the visa holder and any family members.
The Tribunal appreciates that the cancellation of the applicant’s visa may cause financial, psychological and emotional hardship to the applicant and his Colombian non-citizen temporary student holder partner and family who currently reside in the UK. The Tribunal notes the applicant’s partner advised she had not yet made a decision as to her future if the applicant is required to leave Australia. The Tribunal notes the applicant’s partner spoke in very strong terms as to the genuineness and permanence of their de facto relationship.
The Tribunal affords this consideration minor weight in favour of the visa not being cancelled.
There are no other relevant matters before the Tribunal.
Thee will not be any consequential cancellations under s 140.
There are not any children whose interests might be affected.
The applicant’s removal from Australia (should it occur) would be lawful and not give rise to consideration of Australia's non-refoulement or family unity obligations.
CONCLUDING PARAGRAPHS
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.
As set out above the regulations require the Tribunal to have regard to many considerations. Those considerations are detailed above. The Tribunal does not take a mathematical or arithmetical approach to resolving this issue. The Tribunal has regard to the relevant period of time. Clearly the existence of Covid in Australia and elsewhere is not a licence to be ill-prepared, delegate routine responsibilities or break the law. If the facts were the same in a period of non-Covid the Tribunal would have little hesitation in cancelling the visa.
However the Tribunal for the reasons set out above gives significant weight to the circumstances of Covid and weight to other matters as set out above.
CONCLUSION
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Non-compliance involving the provision of incorrect information is in the Tribunal’s view a serious matter.
The Tribunal has considered all the information before it. The Tribunal is satisfied that the evidence weighs in favour of the visa not being cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Mark Bishop
Senior 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 2588

27 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal

Natural Justice