Coffey (Migration)

[2021] AATA 5393

Coffey (Migration) [2021] AATA 5393 (26 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel COFFEY

CASE NUMBER:  2106786

HOME AFFAIRS REFERENCE(S):          BCC2020/2243140

MEMBER:Nathan Goetz

DATE:26 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2021 at 5:59pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417–– applicant had provided false information – applicant had not worked for at least three months in specified work in regional Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 107, 109, 359, 360
Migration Regulations 1994, r 2.41, Schedule 2

CASES
Hasran v MIAC [2010] FCAFC 40

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).

   BACKGROUND

2. The applicant identifies as 26-year-old male citizen of Ireland. On 13 December 2019 the applicant was granted a working holiday visa. On 27 February 2020 he arrived in Australia holding that visa. On 27 February 2021 that visa ceased.

3. On 16 July 2020 the applicant applied for the visa that is the subject of this decision record. The same day the applicant was granted the visa. That visa was to cease on 27 February 2022.

4. On 27 April 2021 the delegate notified the applicant of the delegate’s intention to consider cancelling the visa (‘NOICC’) under s.109 of the Act. The applicant was given 14 days to respond. On 10 May 2021 the applicant wrote to the delegate and asked for an extension to the timeframe for responding to the notice. On 11 May 2021 the delegate wrote to the applicant and advised there was statutory provision to allow an extension to the timeframe but indicated the delegate would consider anything the applicant submitted prior to a decision being made about whether the cancel the visa. That same day, the applicant responded to the notice of intention to consider cancellation of the visa.

5. On 18 May 2021 the delegate cancelled the visa. Following the cancellation decision, the applicant wrote to the delegate and put further information to the delegate. On 20 May 2021 the applicant applied to the Tribunal for review of the decision to cancel the visa.

6. On 6 September 2021 the Tribunal wrote to the applicant under s.359(2) of the Act to request information from the applicant. On 18 September 2021 the applicant responded to the request for information.

7. On 27 October 2021 the Tribunal wrote to the applicant under s.360(1) of the Act to invite the applicant to appear at a Tribunal hearing commencing at 10:00am on 12 November 2021 to give evidence and present arguments relating to the issues arising in relation to the issues under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal had considered the material it had and was unable to make a decision on the review application that was favourable to the applicant.

8. On 5 November 2021 and 11 November 2021, the applicant provided additional information to the Tribunal.

9. On 12 November 2021 the applicant appeared at the Tribunal hearing by telephone. The Tribunal was satisfied that a telephone hearing was appropriate given the COVID-19 pandemic.

   THE STATUTORY REGIME FOR CANCELLATION OF THE VISA

10. 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.

11. 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.

12. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant information from the visa application form

13. The applicant identified that he is currently in Australia and was applying for a second working holiday visa.

14. He declared that he had undertaken three months’ worth of specified work as the holder of a first working holiday visa. He declared the specified work undertaken as direct employment in the construction industry and described his duties as ‘form work – forming bridge columns and decks, pre-cast culverts, waterproofing culverts, stripping form work.’ The employer details were provided as ‘EKC’ which was both the legally registered name and trading name. The applicant provided the Australian Business Number 52607542503.

15. He provided contact information for a person who was identified as the manager of that company. The applicant provided Nowra, New South Wales as the business address of that company. He declared that he had worked 760 hours worked / 90 total days worked between 2 March 2020 and 5 July 2020. He was paid an hourly rate of pay of $35.00.

16. The applicant declared that provided complete and correct information in every detail on the visa application form.

    The delegate’s notice of intention to consider cancellation of the visa

17. The delegate provided the particulars of the grounds for cancellation in the NOICC. The delegate detailed the claimed employment with EKC. The delegate noted that on this information, as well as meeting other relevant criteria, the applicant was granted the visa.

18. The NOICC detailed that employment verification checks with EKC were conducted to verify this claimed employment. On 28 August 2020, that employer contacted the department and advised that the applicant had never worked for that employer.

19. The delegate considered that the applicant had provided incorrect information in the visa application when the applicant:

    ·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 EKC in the section of the visa application form titled ‘Details of specified work undertaken; and

    ·Answered ‘Yes’ to the declaration ‘Are you applying for a second working holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa?’

20. The delegate considered the information to be incorrect due to the subsequent verification checks undertaken by the department. The delegate concluded that the applicant never worked for EKC and had therefore not undertaken three months specified work in regional Australia. Based on this information, it appeared to the delegate that the applicant provided incorrect answers in support of his visa application, and therefore the applicant had not completed with section 101(b) of the Act, meaning that his visa may be cancelled under s.109 of the Act.

21. The delegate invited the applicant to provide a written response detailing reasons why the visa should not be cancelled.

    The applicant’s response to the notice of intention to consider cancellation of the visa

22. The applicant responded to the NOICC writing that “I am currently making efforts to provide screenshots of my attempts to secure regional work, the work I have undertaken and currently undertake in Australia, and documents pertaining to my medical health.

23. The information provided in my application regarding my work at EKC is incorrect, however, I believe that had this incorrect information not been provided I still would be eligible for the working holiday visa I was granted.

24. I last entered Australia on 27 February 2020 before the border closure but at a time when the covid cases were fast rising both here and abroad. At that point it was my understanding that to be eligible for the 2nd working holiday visa, I would have to complete regional work.

25. Despite my many attempts to contact potential employers through seek, Facebook, direct calls, and through colleagues, I was unable to find regional work. It seemed to me that there was a general hiring freeze to curb the spread and such work was now non-existent. Coupled with this chaotic state of affairs, was the lack of information on what was considered critical work and whether it would make you exempt from working regionally in applying for a 2nd WHV.

26. I began working in the entertainment industry and was contacted by an individual who informed me that he could apply for my 2nd WHV visa without my regional work having been completed.  I could not find the relevant information on whether I was eligible for a 2nd WHV grant on the basis of my critical work (despite it not being in a regional area)

27. I realize now, since receiving the correspondence from the department that I may have made a mistake in trusting this particular individual and accepting his assistance. I took this path not out of desperation and necessity but because I thought it was a suitable option available to me (as I had six months remaining on my then current WHV).   I made a decision to secure a pathway going forward and to avoid complications such as having to go to a country with a lockdown in effect.

28. But since being granted my visa I have not only enjoyed Australia and continued to grow with it, I have worked in the entertainment industry, with the Australian Human Rights commission. and with the Sydney Metro in construction. I am aware of the shortage of workers in Australia at the moment and have felt a great need to form community ties by working and helping where I can.

29. It has been hard being away from family but Australia has been good to me and I have respected that at every turn. I sincerely hope I can finish this journey safely before returning home.”

    The delegate decision to cancel the visa

30. The delegate decision record indicated that the delegate had taken into account what the applicant had written and decided that incorrect information had been given. The delegate then considered the discretion to cancel the visa, and ultimately decided to do so for the reasons detailed in the decision record.

    Subsequent response from the applicant to the decision to cancel the visa

31. In response to the decision to cancel the visa, the applicant wrote to the department, claiming “I read the document I can see how some reasons were in favour of canceling but I need to show some documents regarding some of the points you made,

32. It said I have made no contribute to the community, but I have made many here are screenshots of my contracts I have worked in during my time here, I have contributed to a variety of roles here in Australia, a payslip from my work on Sydney metro also showing high amounts of tax paid to this government,

33. Also some screenshot examples of when I was trying to secure regional work during Covid which was unsuccessful, that time was very uncertain for everyone and farmwork was impossible to get,

34. Im unsure if this can be reviewed anymore but I just wanted to prove myself a small bit more as I am devastated it has came to this.”

    Tribunal request for information under s.359(2) of the Act

35. As detailed earlier, the Tribunal wrote to the applicant under s.359(2) of the Act to request he provide information. The Tribunal requested information to address the following:

    ·Did you complete the visa application form by yourself or with the assistance of another person? If another person assisted you, you are directed to provide the name, address, telephone number and email address of the person who assisted you to complete the visa application form.

    ·In your response to the department’s notice of intention to consider cancellation of your visa, you wrote about your work in Australia. You are directed to detail this work history in chronological order, and provide a telephone contact number for a person with each employer as the Tribunal may wish to speak to them about the circumstances of your employment with them.

    Applicant’s response to the Tribunal’s request for information under s.359(2) of the Act

36. The applicant provided a statutory declaration made on 18 September 2021, although the Tribunal notes that this was not witnesses by an authorised person. In the undeclared declaration, the applicant wrote that:

37. “I did not complete my visa application myself. After being unable to secure regional work during the COVID pandemic due to travel restrictions and a hiring freeze across farms I decided to look at other visa options. A visa agent whom I never met in person and only communicated through email informed me I was eligible for a second year working holiday visa. The agent asked me to provide certain details and then submitted my visa application for a fixed price. The visa agent’s name was Lee Hansol and email address was [email protected]. After corresponding with the department ten months later after the visa was granted and receiving a NOICC I realised I should not have trusted this individual. I sent the agent emails to try and get in contact and get an explanation what had happened by got no response. I can provide more evidence on this if required.”

38. The applicant detailed his work history in Australia as listed below. He also provided contact information for a person for each employer, which the Tribunal has not repeated:

    ·     Finance Associate – Nine Entertainment – March 2020 to June 2020

    ·     Labourer / Trade Assistant – RJC Group – June 2020 to September 2020

    ·     Procurement and Assets Officer – Australian Human Rights Commission – September 2020 to December 2020

    ·     Labourer / Trade Assistant – Cono Services – January 2021 to present

    Additional information provided to the Tribunal prior to the Tribunal hearing

39. The applicant provided what described as ‘attempts to secure regional work,’ work / character references, client reviews for his dog minding service, donations that he has made to the community, a suggestion that his tag rugby team regularly competes in charitable events, an email from his mind coach concerning his mental health, a police clearance check and certificate, advice concerning travel to Ireland, and photographs of the applicant travelling and enjoying Australia.

    Discussion at Tribunal hearing

40. The applicant was asked how he applied for the first working holiday visa to come to Australia. The applicant said he went onto the department website and understood the requirements for this visa as it was pretty straightforward. The Tribunal asked the applicant whether he intended at that time to make a future working holiday visa application. He said he did as he wanted to spend at least three years in Australia.

41. The Tribunal asked why the applicant falsely claimed he worked at EKC. The applicant said that when he arrived in Australia in March 2020, he flew into lockdown. He said he was working for Nine Entertainment but could not find any regional jobs. He saw an online post directed to people who could not find regional work by Lee Hansol. The applicant emailed him and this person submitted the visa application for him. The applicant said that he was unsure what this person was going to do but looking back, this was a stupid thing to do, but the applicant felt he had no other options. The applicant said that Lee Hansol told him the applicant would be able to get a visa based on the information the applicant provided. The applicant told the Tribunal that he understood he was required to do regional work to qualify for the visa but that he thought his work with Nine Entertainment might qualify as critical work which could be undertaken instead of regional work.

42. The Tribunal understands that ‘Working Holiday Makers (WHMs) can now count critical COVID-19 work in the healthcare and medical sectors undertaken anywhere in Australia after 31 January 2020 as ‘specified work’ to apply for a 2nd or 3rd WHM visa.[1]

    [1] >

    The Tribunal explored the idea that Nine Entertainment would be critical work that could be used to substitute the regional work requirement. The applicant said he knew about critical work being used as a substitute because he was reading a lot about this due to the pandemic. The applicant said he thought that Lee Hansol would submit the applicant’s work at Nine Entertainment as critical work. Given the applicant had previously told the Tribunal that he applied for the first visa himself, the Tribunal queried why the applicant would need Lee Hansol to submit this second visa application form him. The Tribunal thought that if the applicant was of the view that Nine Entertainment was critical work, he would disclose that employment and then submit the visa himself. The applicant then told the Tribunal that he got Lee Hansol to do this because he was unsure about how to lodge the visa. When the Tribunal noted to the applicant that he applied for the first visa himself, the applicant then said that he did not know how to submit a visa application that suggested that his work at Nine Entertainment was critical work.

43. The Tribunal was perplexed by this, as it seemed to suggest that the applicant was saying that he thought Lee Hansol was lodging a visa application with legitimate information. The Tribunal asked if that was the case. The applicant said he did not think it was legitimate, and repeated that he thought Lee Hansol was going to submit a visa application on the information the applicant provided. The applicant paid Lee Hansol $490 to lodge the visa application and $1000 once the visa was granted. The applicant did this through a bank transfer.

44. The Tribunal asked the applicant about the information the applicant provided to Lee Hansol. The applicant said Lee Hansol requested that he provided answers to 30 questions, including passport information, work history and education, among other things. Lee Hansol advised the applicant that he would start working on the visa application and a week later advised the applicant he had been granted the visa. The Tribunal asked the applicant if he knew that Lee Hansol was going to submit false information in the visa application form. The applicant said he did not know this, and then advised the Tribunal that the work with EKC that Lee Hansol submitted was not regional construction work, and queried how he could have been granted the visa on that information in any event. The Tribunal asked the applicant how he knew this. The applicant said he knew this because of the NOICC.

45. The Tribunal asked the applicant why he did not leave Australia when he was unable to obtain regional work.  The applicant said there were many reasons. COVID was particularly bad in Ireland, and he felt happier in Australia. He described ‘doing well for myself’, making friends, and the fact that he did not get the chance to experience Australia due to the pandemic. He noted he had mental health problems and suffered anxiety and panic attacks in Ireland and felt his mental health was better in Australia.

46. The applicant told the Tribunal that started working for a new company a few weeks prior to the Tribunal hearing. They did construction work on WestConnex in Haberfield, New South Wales.

47. The applicant told the Tribunal that it should not cancel the visa because he was desperate when he applied for the visa. He repeated that he was doing well for himself, that he was a good asset to Australia, is happier in Australia, has made great friends, and noted his previous employment. In fact, he said that a lot of employers seek him out for employment, but he has difficulty getting employment because he is presently on a bridging visa. Apparently, employers do not like to employ people on bridging visas because these type of visas do not have a defined end date, which provides uncertainty, and they are not conductive to long term employment.

1. The applicant also cited his relationship with Michelle Doran, who he identified as being born on 13 December 1995, as a reason to not cancel the visa. They do not live together but are in a relationship. She is not an Australia citizen. He indicated that she is a United Kingdom citizen who is in Australia on a temporary visa and currently works at a hotel providing hotel quarantine.

2. The applicant said that he made contributions to the Australian community through collection donations for the homeless/refugee/asylum seekers who are in the hotel where his girlfriend works. He also noted that he plays in a rugby team and they participate in charitable events. He confirmed that he is the only applicant connected with the visa. He is one of three siblings. His family all live in Ireland.

3. The applicant indicated that if the visa cancellation is set aside, he plans to apply for a visa that will allow him to work in Australia. In the event that the Tribunal upholds the cancellation decision, the applicant said he will return to Ireland and live with his parents and go back to working in finance. He noted he has some subjects to pass in Ireland in order to be qualified.

4. The applicant understood that if the visa cancellation was upheld the bridging visa he currently held would cease after 35 days and he would be liable to immigration detention. He said he was keen to avoid this and would book a flight to Ireland and apply for a bridging visa on departure grounds, because he does not want to be an unlawful non-citizen in Australia.

   FINDINGS AND REASONS

5. The issue in this case is whether there was non-compliance as detailed in the s.107 (NOICC) notice. If so, the next question is whether the visa should be cancelled.

   Was there non-compliance as described in the s.107 notice?

6. The non-compliance identified and particularised in the s.107 notice was non-compliance with the requirement that no incorrect answers are to be given as required by s.101(b). It is clear that incorrect information has been provided, namely that the applicant has completed 3 months of specified work completed work with EKC.

7. The evidence from both the department employment verification check and the applicant himself is that he did not complete this work.

8. For these reasons, the Tribunal finds that there was non-compliance with s.1010(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

9. 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).

10. 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.

11. 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.

12. The Tribunal considered all the information it had concerning the discretion to cancel the visa, including what the applicant told the Tribunal at the Tribunal hearing. Ultimately, the Tribunal concludes that the visa should be cancelled for the following reasons.

13. The correct information is that the applicant did not undertake the work that was detailed in the visa application form. The Tribunal is satisfied that the applicant would not have been granted the visa application had he noted claimed to have worked for EKC, which was based in the regional postcode of Nowra, New South Wales. The Tribunal notes that construction work in this postcode qualifies as specified work for the purpose of the visa. The applicant’s assertion that this work would not qualify is without substance. While the delegate decision notes that the visa was granted on the basis of the applicant undertaking the specified work claimed and meeting other relevant criteria, these other relevant criteria would be conditional on the applicant satisfying the work requirement. The Tribunal is satisfied that without falsely claiming to have undertaken the work with EKC, the applicant would have had the visa application refused. The Tribunal has considered this in the exercise of its discretion to cancel the visa.

14. The Tribunal accepts that the non-compliance occurred at a time when employment in regional Australia was difficult. However, a person who cannot meet the relevant criteria for a visa has the obligation to depart Australia or apply for a visa for which they can satisfy the relevant criteria. The Tribunal does not accept that the applicant’s only choice was to fabricate employment in order to get a visa. The Tribunal has considered this in the exercise of its discretion to cancel the visa.

15. The Tribunal accepts that the applicant is employed in Australia, is in a relationship, plays sports, has collected donations for the people in hotel quarantine, has participated in sporting activity that has involved a charitable character, that his mental health is better in Australia, and that the applicant prefers life in Australia to that in Ireland. The Tribunal has considered this in the exercise of its discretion to cancel the visa.

16. The Tribunal has considered the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act. While the applicant conceded to both the delegate and the Tribunal that he had not undertaken the specified work, the Tribunal highlights the fact that the incorrect information did not come to the attention of the delegate by the applicant reflecting on what he had done, but because the delegate had undertaken relevant verification checks concerning the employment. As such, the Tribunal is satisfied that had the delegate not undertaken the relevant employment checks, the applicant would have continued to benefit by holding a visa that was obtained through a false declaration of employment. The Tribunal has taken this into account in the exercise of its discretion to cancel the visa.

17. The Tribunal is not aware of any other instances of non-compliance with the Act or Regulations by the applicant, nor is the Tribunal aware of any breaches of other laws during the applicant’s time in Australia. The Tribunal also accepts that the non-compliance occurred almost 18 months ago. The Tribunal has taken this into account in the exercise of its discretion to cancel the visa.

18. However, the Tribunal did not find the applicant to be a very sympathetic character during the course of the Tribunal hearing. The Tribunal assessed him as wishing to put a rather innocent complexion on the fact that this false information had been included in his visa application form by insisting that he thought that Lee Hansol would claim in the visa application that the applicant’s work for Nine Entertainment was ‘critical work.’ The Tribunal does not accept that this was true, given the applicant had:

    ·Been able to apply for the first working holiday visa himself online, demonstrating an ability to navigate department forms, and therefore there being no need to have someone complete a form on his behalf

    ·Told the Tribunal that he was aware of the critical work exemption for the working holiday visa, meaning that he could have applied for the visa himself detailing his employment with Nine Entertainment; and

    ·Disputed that he thought Lee Hansol would make a legitimate visa application on his behalf which was inconsistent with the applicant believing that this person was going lodge a visa application that contained work history with Nine Entertainment and identifying this work as critical work.

19. The applicant was evasive and not forthcoming with the Tribunal about his dealings with Lee Hansol. The Tribunal is satisfied that the applicant was evasive about this because, although he may not have known that Lee Hansol would provide the particulars of the employer or work undertaken, the applicant was aware that Lee Hansol would falsely claim that the applicant had completed specified work in regional Australia for the required period. The fact that the applicant was not upfront with the Tribunal about this demonstrates to the Tribunal that the applicant has a rather entitled approach to his presence in Australia.

20. It is obvious that the applicant should not have been granted the visa. He was granted the visa through the provision of false information. The Tribunal is satisfied that it is general public knowledge that the department would not have the resources to check in detail every single employment claim made in a working holiday visa, and the working holiday visa system operates on a great degree of the department accepting at face value what people put in their visa application forms. The Tribunal cannot overlook that as a result of the applicant’s dishonest conduct, he was allowed to remain in Australia on a visa to which he was not entitled.

21. The Tribunal is satisfied that when the applicant realised he was unable to complete regional work in Australia and he would be unable to meet the requirements of the working holiday visa, he failed to make arrangements to depart Australia because he is prepared to ignore migration laws if he feels he benefits in doing so. Just because the applicant prefers his life in Australia to that of his life in Ireland should not lead to a conclusion that the requirement to be truthful in visa application forms should be readily discarded.

    CONCLUSION

22. 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

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

    Nathan Goetz
    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.