Dignam (Migration)

[2022] AATA 2046

Dignam (Migration) [2022] AATA 2046 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Patrick Sean Dignam

REPRESENTATIVE:  Mr Samuel Brouff

CASE NUMBER:  2112338

HOME AFFAIRS REFERENCE(S):          BCC2020/2706158

MEMBER:K. Chapman

DATE:21 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 21 June 2022 at 8:06pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information in the visa application – specified work in regional Australia – working on infrastructure projects – impact of the COVID19 pandemic – mental health issue – employment prospects – decision under review affirmed          

LEGISLATION

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

CASES

Botha v Minister for Immigration and Border Protection [2017] FCA 362
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 (Cth) (‘the Act’).

2. The delegate cancelled the visa on the basis the applicant had not complied with sub-section 101(b) of the Act, in that he incorrectly declared in his visa application he had performed 6 months of specified work in a regional area, when integrity checks confirmed he had not done so. It is worth pausing to reflect that generally an applicant is not entitled to the grant of a third Subclass 417 visa without having performed 6 months of specified work, commonly required to be in a regional area.

3. On 2 August 2021, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 417 visa, on the basis that he failed to comply with sub-section 101(b) of the Act. He responded to the NOICC on 16 August 2021. On 30 August 2021, the delegate cancelled the applicant’s Subclass 417 visa. On 14 September 2021, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with his application.

4. The Tribunal initially scheduled a review hearing for 19 May 2022. However, the applicant (through his solicitor, ‘the representative’) requested an adjournment as he had returned to Northern Ireland in January 2022. The Tribunal granted an adjournment and relisted the hearing by video means for 2 June 2022. Submissions and evidence were submitted shortly prior to, and during, the review hearing on 2 June 2022. They included a psychologist report dated 9 August 2021, that was submitted in response to the NOICC, and a NSW Police clearance. All submitted material has been duly considered by the Tribunal.

5. The applicant appeared by video before the Tribunal on 2 June 2022 to give evidence and present arguments. He was located in France, where he was taking a short break before returning to Northern Ireland. The applicant confirmed he was comfortable participating in the hearing by video. The representative also appeared by video link from Sydney. The Tribunal is satisfied the video method of hearing was fair and appropriate, utilising a clear video link.

6. The representative requested time for post-hearing material to be submitted, indicating the applicant would attempt to provide material regarding his employment in Australia and potential future employment opportunities. The representative noted the applicant had a falling out with his most recent employer and may not be able to furnish material from them. The Tribunal granted until 16 June 2022 (two weeks post-hearing) for the submission of such material.

7. At the time of this decision, no further material has been received by the Tribunal following the review hearing, nor has any further contact with it been made by the representative or the applicant. Following careful consideration, the Tribunal is satisfied a reasonable opportunity has been provided to the applicant to submit material in the review. Therefore, the Tribunal has determined to proceed to decision having regard to the material before it.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   ISSUES AND LAW

9. The issues in the present case are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

10. Sub-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, 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence at the review hearing

12. The applicant’s evidence to the Tribunal at hearing may be summarised as follows. He completed a Degree in Business at university in The United Kingdom. The applicant referred to a friend passing away in an accident in The United Kingdom, which caused him difficulties. He travelled to Australia with a mutual friend of the deceased. That friend spent around one year in Australia. The applicant worked in construction on public infrastructure projects in Australia, including the light rail in Sydney. He has approximately four years’ experience working in construction. The applicant mixed with many other Working Holiday visa holders in Australia. The applicant returned to Belfast in Northern Ireland in January 2022, due to a family requirement. He took part in the hearing by video means from France, where he was taking a short break with his girlfriend.

13. The applicant agreed that he received the NOICC and responded to it. He had no further evidence to add regarding the NOICC or his response. The applicant indicated he had read and understood the delegate’s visa cancellation decision. He agreed the Department was correct to cancel his visa.

14. The Tribunal canvassed with the applicant the information contained in the delegate’s visa cancellation decision, regarding his alleged provision of incorrect information concerning regional employment with Quenby Viticultural Services in Western Australia. The applicant admitted incorrect information was provided, by a third party, concerning the claimed specified work in his visa application. The applicant indicated he knew of the requirement to perform regional work to obtain the third Subclass 417 visa. He explained that he didn’t directly provide the incorrect information to the Department, rather a person using the email ‘Goldenfish777’ did so. The applicant agreed he engaged ‘Goldenfish’ to prepare his visa application, although he didn’t know the specifics submitted. The applicant ultimately paid ‘Goldenfish’ $3,000 to lodge his visa application.

15. The Tribunal canvassed with the applicant the particulars of s.98 of the Act pertaining to responsibility for information contained in visa applications. He took responsibility for the visa application, although he continued to refer to ‘Goldenfish’ preparing it on his behalf. He conceded to the Tribunal he knew there was ‘something wrong’ with the way in which he approached the visa application. He also knew about the requirement for regional work to be completed to qualify for the visa.

16. The Tribunal raised with the applicant that the evidence before it might tend to suggest the ground for cancellation of his visa exists in that incorrect answers have been given or provided in the manner outlined by the delegate. He was invited to comment and conceded this matter. The Tribunal raised with the applicant that his failure to provide correct information in relation to his third Subclass 417 visa application might tend to weigh in favour of cancelling his visa. The applicant was invited to comment and indicated he was wrong and did break the law. He advised that at the time everything was messed up in the world. He acknowledged it was the wrong decision and he regrets it. He had friends and family in Australia, a good life, he’s upset with himself and he threw everything away by making a stupid decision in the moment.

17. The Tribunal raised with the applicant that the failure to provide correct information in relation to his third Subclass 417 visa application might tend to suggest that the decision to grant him that visa was based wholly or partly on incorrect information and this might tend to weigh in favour of cancelling his visa. The applicant was invited to comment and replied that the submitted evidence for the visa application was incorrect and he agreed the visa should have been cancelled.

18. The Tribunal canvassed the applicant’s current circumstances. He arrived back in Belfast in January 2022 due to a family matter. His father owns an investment property and the applicant with his brother (an electrician) are renovating it. The applicant resides with his parents in Belfast and then works on the investment property renovation each day. The applicant hopes to return to Australia as he has many friends in this country. He feels lost being outside of Australia. The Tribunal canvassed the applicant’s health with him, including his mental health, noting the submission of a psychologist report dated 9 August 2021. The applicant explained his health is perfect and his mental health is not too bad given he is at home. He confirmed he does not see a mental health practitioner. The applicant confirmed he had no further information to provide regarding his present circumstances.

19. The applicant indicated he had not breached any Australian laws or other visa requirements. He advised the Tribunal that he had made a contribution to the Australian community by working on infrastructure projects, such as the Sydney light rail. The applicant also confirmed he had no children in his care. The Tribunal canvassed the mandatory legal consequences of visa cancellation with the applicant. In response he advised that he is outside of Australia, so he doesn’t have to worry about most of them, however he is trying to get back in but it is impossible because of his current circumstances. He added that he doesn’t need to worry about being thrown out of Australia because he has already departed. The applicant confirmed that no international obligations are relevant to his case.

20. The Tribunal canvassed issues of hardship with the applicant. He advised that he had nothing further to raise. When asked by the Tribunal if there was any reason he could not remain in The United Kingdom, specifically Northern Ireland, the applicant advised he can stay there, but he doesn’t have a good life there and in Australia life was better. He stated he had messed it up.

21. Towards the conclusion of the review hearing, the applicant submitted that he was stuck in a corner when he applied for the third Subclass 417 visa due to the situation with COVID-19 and he made a bad decision to apply for the visa. He explained he couldn’t leave Sydney to perform the necessary regional work, so he took the easy way out. It was a bad decision, but he felt he had no other choice.

22. When asked by the Tribunal if he contacted the Department about his visa when the height of the COVID-19 pandemic took hold in Australia, the applicant advised he never thought about doing so. Rather, he relied upon the Irish community to guide him. The Tribunal raised with the applicant that it might have difficulty accepting he wasn’t able to contact the Department at that time, inviting his comment. He replied that he never knew it was an option. In sum, the applicant wishes to return to Australia where life is better in his view. At the conclusion of the hearing, he confirmed to the Tribunal that he had no further evidence to submit.

23. The representative was invited to make submissions. He recapped that the applicant left Australia at short notice in January 2022 regarding a family matter. Given he departed employment at short notice, he had a falling out with his former employer and had not yet obtained a statement about his work with them. He requested further time for the applicant to attempt to source material regarding his former employment performance and prospective employment opportunities. This was granted by the Tribunal. He added he prepared the response to the NOICC for the applicant. The representative referred to his written submissions. They have been duly considered by the Tribunal.

    Did the notice comply with the requirements in s.107?

24. Section 107 of the Act is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

25. The Tribunal notes that the NOICC dated 2 August 2021 was properly despatched by the Department to the applicant. He responded to the NOICC with contentions and a psychologist report dated 9 August 2021. In sum, the applicant contended he suffered from a mental health issue arising from his fears of catching COVID-19 and this influenced his decision making process. The Tribunal has duly considered the response to the NOICC. The Tribunal has also considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage the provisions of s.107 of the Act.

26. Therefore, in the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.

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

27. The Tribunal must consider 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 is non-compliance with s.101(b) of the Act.

28. The s.107 notice particularises non-compliance with s.101(b) of the Act by the applicant in relation to his third Subclass 417 visa application. It indicates the applicant incorrectly answered questions in that visa application in relation to having performed 6 months specified work in a regional area.

29. It is not in dispute that the applicant’s visa application incorrectly declares the performance of 6 months specified work in a regional area. He admitted to seeking the assistance of ‘Goldenfish’, paying this individual the sum of $3,000 in return for lodging the visa application. The applicant took responsibility for engaging ‘Goldenfish’ and for knowing that he had not performed the requisite regional work to obtain the third Subclass 417 visa.

30. Following careful consideration, the Tribunal finds that the untruthful answers, regarding the applicant’s performance of 6 months of specified work in a regional area, constitute the provision of incorrect answers in the manner particularised in the s.107 notice. On balance, the Tribunal is satisfied that the answers provided by the applicant as particularised in the s.107 notice are incorrect.

31. Therefore, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

32. 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).

33. 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; and

    ·     any contribution made by the holder to the community.

34. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

35. The Tribunal has duly considered the applicant’s response to the NOICC. This response covers material that has been canvassed in greater detail during the review hearing. On balance, the Tribunal finds that the response of the applicant to the NOICC weighs neither in favour of, nor against, cancellation of his visa, given that more contemporary evidence is before the Tribunal.

36. The correct information in relation to the questions in the relevant visa application, previously outlined, is that the applicant did not perform 6 months specified work in a regional area. The false information submitted in his visa application regarding this topic is, in the view of the Tribunal, a very serious matter. This is particularly so given the applicant knew he was not entitled to be granted the third Subclass 417 visa without performing the relevant work, and he was already familiar with the requirements to perform specified work to obtain his second Subclass 417 visa but chose to pay ‘Goldenfish’ the sum of $3,000 to proceed with the visa application. These circumstances weigh strongly in favour of cancelling the applicant’s Subclass 417 visa, given the untruthful nature of the incorrect information submitted. For completeness, the Tribunal finds that there is no circumstance in the present matter regarding the content of a genuine document and therefore no weight is given to that prescribed circumstance.

37. The Tribunal forms the view that the decision regarding the applicant being granted the third Subclass 417 visa was based wholly or partly on incorrect information. That is, the applicant’s visa application incorrectly submitted that he performed 6 months specified work in a regional area. Given that this topic is central to the grant of a third Subclass 417 visa, had the true information been known to the Department the applicant would not have been granted the visa. Following careful consideration, the Tribunal finds that the circumstances in relation to the grant of the third Subclass 417 visa to the applicant weigh strongly in favour of cancelling his visa.

1. The Tribunal finds that the applicant engaged in a deliberate course of conduct to pursue a third Subclass 417 visa application, in the knowledge that he had not performed 6 months specified work in a regional area. That he chose to pay $3,000 to ‘Goldenfish’ to lodge the application on his behalf reflects poorly upon him. Whilst the Tribunal has paid due regard to the psychologist’s report dated 9 August 2021, outlining the applicant’s acquisition of depression and anxiety arising from the onset of the COVID-19 pandemic, it is noted that report is based upon a single presentation of 6 August 2021. Therefore, less weight is afforded to that report given the brevity of the therapeutic relationship. Furthermore, whilst the Tribunal accepts the applicant was affected by these issues at the time he engaged ‘Goldenfish’ to prepare his visa application, there is no persuasive evidence to suggest he was afflicted by mental health illness to a degree that inhibited his conscious decision making ability.

2. The Tribunal understands the applicant felt under pressure when the COVID-19 pandemic struck, however, at no stage did he contact the Department during 2020 to discuss his options in light of the unfolding situation. Rather, he made the conscious decision to pursue a pathway that would submit incorrect information on his behalf in his third Subclass 417 visa application. It is worth pausing to reflect that the incorrect information only came to light when the Department conducted integrity checks and the applicant never volunteered the true information to the Department. Following careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh strongly in favour of cancelling the applicant’s Subclass 417 visa.

3. The applicant submitted that his present circumstances weigh against the cancellation of his visa. He contends life is not as good in Belfast for him as it was in Australia. He hopes to return to Australia and obtain further employment in this country. The Tribunal accepts the applicant perceives his opportunities to be better in Australia than in The United Kingdom. However, the Tribunal also notes the applicant gave evidence of his good health (including mental health) since being back home and of him performing important work renovating his father’s rental property, which points to him smoothly re-integrating to life in The United Kingdom. The Tribunal also notes the applicant has admitted to wrongdoing by engaging ‘Goldenfish’ to prepare his visa application and acknowledged his mistake. On balance, the Tribunal finds that the applicant’s present circumstances weigh moderately against the cancellation of his visa. This is primarily due to his demonstrated work experience in Australia, his desire to return to this country and his admission of wrongdoing.

4. The Tribunal has carefully considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act and also whether there are any other instances of non-compliance by the visa holder. There are no adverse matters before the Tribunal with regard to these matters. Therefore, on balance, the Tribunal finds that these matters weigh moderately against the cancellation of the applicant’s Subclass 417 visa.

5. The time that has elapsed since the non-compliance with s.101(b) has been carefully considered by the Tribunal. The applicant made the application for the third Subclass 417 visa on 3 October 2020, approximately 20 months prior to the time of this decision. Given this period of time is not lengthy, on balance, the Tribunal finds that the time that has elapsed since the non-compliance weighs neither in favour of, nor against, cancellation of the applicant’s visa.

6. There is no evidence of any breaches of the law since the applicant’s non-compliance and the Tribunal affords this circumstance moderate weight against cancellation of his Subclass 417 visa. The applicant expressed that he has made a contribution to the Australian community by working in construction on infrastructure projects, such as the Sydney light rail. The Tribunal accepts his past employment is such a contribution and it finds this matter weighs moderately against the cancellation of his Subclass 417 visa.

7. 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.

8. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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. As outlined above, the mandatory legal consequences of visa cancellation were canvassed with the applicant at the review hearing. If the applicant’s Subclass 417 visa is cancelled and he does not hold a valid visa in Australia, he would become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. He would also be subject to s.48 of the Act, which limits further specific onshore visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. Further, the applicant may be subject to an exclusion period regarding future visa applications. There is no evidence before the Tribunal to suggest that the applicant would be subject to indefinite detention and, indeed, he has returned to Belfast in The United Kingdom. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s Subclass 417 visa given they are the intended consequences of the legislation.

9. The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant if his Subclass 417 visa is cancelled. As detailed above, the applicant expressed his desire to return to Australia as he perceives life is better in this country, he has work experience here and also many friends in this country.

10. The Tribunal accepts there will be some hardship for the applicant if his visa is cancelled and he is unable to return to Australia whilst the exclusion period remains applicable to him. The Tribunal also accepts there will be some disruption to the applicant’s family and friends who may wish for him to return to Australia. On balance, the Tribunal finds that the applicant would face a moderate degree of hardship if his visa is cancelled and this weighs moderately against the cancellation of his Subclass 417 visa.

11. For completeness, the Tribunal notes that the issues of mental health raised by the applicant were in relation to events at the time of the peak of the COVID-19 pandemic in Australia. Indeed, he advised the Tribunal that his health (including mental health) is now good and better since he has returned home. He also confirmed he does not currently see a mental health practitioner. Therefore, the Tribunal is satisfied the applicant’s mental health does not present an impediment to him remaining in The United Kingdom with his family. The Tribunal notes it has duly considered the applicant’s prior concerns regarding his mental health in its assessment of the reasons why he engaged ‘Goldenfish’.

12. For reasons previously outlined, the Tribunal finds there is no persuasive evidence before it to suggest that any international obligations would be breached as a result of the cancellation of the applicant’s Subclass 417 visa, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. Accordingly, this consideration weighs neither in favour of, nor against, cancellation of the applicant’s Subclass 417 visa. The Tribunal records that it has duly considered all relevant matters in the applicant’s case.

13. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 417 visa. For reasons previously expressed, the Tribunal finds that the applicant engaged in a knowingly dubious course of conduct to engage ‘Goldenfish’ to lodge his third Subclass 417 visa application, relying upon the false premise that he completed 6 months of specified work in a regional area. In doing so there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

14. On balance, following much consideration, the Tribunal finds that the circumstances in favour of cancelling the applicant’s visa outweigh those circumstances to the contrary.

    CONCLUSION

15. 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 outlined above, the Tribunal concludes that the Subclass 417 visa should be cancelled.

    DECISION

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

    K. Chapman
    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.