Duffy (Migration)

[2022] AATA 616

Duffy (Migration) [2022] AATA 616 (4 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Natalie Elizabeth Duffy

CASE NUMBER:  2107570

HOME AFFAIRS REFERENCE(S):          BCC2020/2294448

MEMBER:K. Chapman

DATE:4 January 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 04 January 2022 at 10:41am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – there was non-compliance in the way described in the notice – applicant had provided false information–applicant didn’t complete 3 months’ regional work – limited degree of hardship – decision under review affirmed

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

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 (‘the Act’). This is the second Subclass 417 visa held by the applicant. She is an Irish national and a native of Northern Ireland.

2. The delegate cancelled the visa on the basis the applicant had not complied with sub-section 101(b) of the Act, in that she incorrectly declared in her visa application she had performed 3 months of specified work in a regional area, when integrity checks confirmed she had not done so. It is worth pausing to reflect that generally an applicant is not entitled to the grant of a second Subclass 417 visa without having performed 3 months of specified work, commonly required to be in a regional area.

3. On 17 May 2021, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of her Subclass 417 visa, on the basis that she failed to comply with sub-section 101(b) of the Act. She did not respond to the NOICC. On 10 June 2021, the delegate cancelled the applicant’s Subclass 417 visa.

4. On 10 June 2021, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with her application. On 14 October 2021, the Tribunal wrote to the applicant, pursuant to s.359(2) of the Act, inviting her to provide the following:

   ·    Information concerning her Australian visa history;

   ·    Information concerning her present circumstances;

   ·    Information concerning the degree of hardship that may be caused to her if her Subclass 417 visa is cancelled; and

   ·    Information concerning any contribution made by her to the community.

5. The applicant responded by submitting her statement, flight itinerary information and message threads regarding regional employment enquiries. The Tribunal has duly considered all information submitted by the applicant.

6. The applicant appeared by telephone before the Tribunal on 1 December 2021 to give evidence and present arguments. She confirmed she was comfortable participating in the hearing by telephone and that no other person would give evidence at the hearing. The applicant participated in the hearing by telephone from Sydney, where she is presently residing. The Tribunal is satisfied that the telephone method of hearing was fair and appropriate, given the prevailing situation with the COVID-19 pandemic.

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

   ISSUES AND LAW

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

9. 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.

10. 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

11. The applicant’s evidence to the Tribunal at hearing may be summarised as follows. She agreed that she received the NOICC. She did not respond to the NOICC, after apparently receiving advice indicating it would be pointless to do so. The applicant indicated she had read and understood the delegate’s visa cancellation decision. She outlined her tertiary education in Northern Ireland and her experience in the Information Technology (IT) sector there. The applicant confirmed she is an Irish national. The applicant outlined that she travelled to Australia with her partner, Mr Conor Stevenson, in order to experience this country. The applicant arrived in Australia in late 2019, conducted tourism in Melbourne, and in early 2020 she obtained employment in a customer service role with the NSW Government in Sydney. She lost her employment in March 2020 once the COVID-19 pandemic struck Sydney and the city went into lockdown. Her partner was working as a tradesman then. In July 2020, the applicant obtained employment in another role with the NSW Government. Since February 2021, she has worked in a customer service role in the banking sector in Sydney, undertaking 40 hours per week of shift work. The applicant’s partner continues to be employed as a tradesman in Sydney.

12. The applicant feared the impact of COVID-19 in Northern Ireland and explained that she could not return to live at home with her parents as her father was ill. His immune system was compromised by illness and therefore her siblings had to move out of home, so as to avoid the possibility of transmitting COVID-19 to him. The applicant also indicated that airline tickets to return to Ireland in 2020 were prohibitively expensive given her lack of employment at the time. The applicant submitted that she was panicked by the COVID-19 situation and her circumstances, therefore she looked for options to obtain a second Subclass 417 visa.

13. The applicant and her partner attempted to obtain farm work in locations such as Queensland. She submitted documentary evidence, including social media posts and travel information, corroborating they made efforts to relocate from Sydney to perform farm work. The applicant believes that had they been residing in Queensland, rather than New South Wales, they would have had a greater prospect of securing farm work (specified work in a regional area). Ultimately, the efforts of the applicant and her partner were fruitless in securing the necessary regional employment. The applicant advised it was her first time away from home, she wished in hindsight she had applied for a COVID-19 pandemic related visa, however she was desperate at the time and she requested compassion due to the pandemic.

14. The Tribunal canvassed with the applicant the information contained in the delegate’s visa cancellation decision, regarding her alleged provision of incorrect information concerning regional employment with AAG Labour Services Pty Ltd. Initially, the applicant sought to distance herself from the completion of the visa application, indicating she didn’t complete it herself. Upon further enquiry of the Tribunal, the applicant revealed that a person called ‘Lee’ completed the application for her in return for the sum of $500. The applicant also indicated she located ‘Lee’ by using the social media site on FaceBook called ‘Irish around Sydney.’ She noted that her partner, Mr Conor Stevenson, also took the same path and he too was subject to visa cancellation.

15. In due course, the applicant conceded that she provided incorrect information concerning the claimed specified work in her visa application. She did so through ‘Lee’ and she knew what she was doing. The applicant added she felt she had no other option at the time. When asked by the Tribunal if she engaged with the Department regarding her circumstances then, the applicant advised she contacted the Irish Embassy but was informed return flights to Dublin were very expensive. The applicant maintained she could not afford to return to Ireland. She conceded she did not attempt to engage with the Department regarding her visa options in Australia. The Tribunal canvassed with the applicant the provisions of s.98 of the Act pertaining to responsibility for information contained in visa applications. She told the Tribunal that she took responsibility for the submitted information.

16. The Tribunal raised with the applicant that the evidence before it might tend to suggest that the ground for cancellation of her visa exists in that incorrect answers have been given or provided in the manner outlined by the delegate. She was invited to comment and conceded this matter. The applicant advised that she understood she did not complete the required farm work. She added that she was unaware of the COVID-19 pandemic related visa then, but she did work for Service NSW in a COVID-19 related role later. The applicant contends that she was ‘caught in a bad time.’ She tried to reach out to farms but couldn’t travel to them due to the travel restrictions of the time. The Tribunal raised with the applicant that her failure to provide correct information in relation to her second Subclass 417 visa application might tend to weigh in favour of cancelling her visa. The applicant was invited to comment and indicated that she understood this.

17. The Tribunal raised with the applicant that the failure to provide correct information in relation to her second Subclass 417 visa application might tend to suggest that the decision to grant her that visa was based wholly or partly on incorrect information and this might tend to weigh in favour of cancelling her visa. The applicant was invited to comment and replied that she was desperate at the time, however the person completing her visa application knew exactly what he was doing to her. Upon enquiry of the Tribunal, the applicant admitted it was her fault, adding that she felt pressure from the media to return home, she could not ask her family for money, she was living in a hostel with Mr Conor Stevenson and they didn’t have enough money to return home at the time.

18. The Tribunal canvassed the applicant’s current circumstances. She works 40 hours per week of shift work in the banking sector in Sydney. The applicant’s partner, Mr Stevenson, has an employer willing to sponsor him for a work visa however they cannot due to his own visa cancellation. The applicant, in the circumstances, may have to return to Ireland with her partner where she will attempt to gain sufficient Information Technology experience, so she can potentially be employer sponsored to return to Australia in the future. She had nothing further to add regarding her present circumstances.

19. The applicant indicated she had not breached any Australian laws or other visa requirements. She advised the Tribunal that she made a contribution to the Australian community through the expenditure of funds in the hospitality sector and she wishes to continue to do so. The applicant also confirmed she had no children in her care.

20. The Tribunal canvassed the mandatory legal consequences of visa cancellation with the applicant. In response she advised that she had spoken with a solicitor, flights are expensive and she might seek a Bridging Visa E until the new year. The applicant confirmed that no international obligations were relevant to her case.

21. The Tribunal canvassed issues of hardship with the applicant. She submitted that her father was ill, with a compromised immune system. This saw her siblings move out of home due to the risks associated with COVID-19. Further, the applicant contended she would have nowhere to reside upon returning to Northern Ireland. She also maintained that air tickets to Ireland are expensive and that she can’t stay with her partner’s parents because their business went into liquidation. Upon further enquiry of the Tribunal, the applicant conceded that she could seek employment to fund accommodation when returning to her country of nationality, although she had some debts to pay.

22. When asked by the Tribunal if there was any reason she could not return to Northern Ireland, the applicant submitted that the COVID-19 pandemic management is not good there. Upon enquiry of the Tribunal, the applicant confirmed both she and her partner were fully vaccinated against COVID-19. The applicant also informed the Tribunal that her partner, Mr Stevenson, had a review of his own Subclass 417 visa cancellation pending and that they would remain together regardless of the outcomes in their respective reviews. She asked that the Tribunal consider that they tried to obtain farm work, were prepared to perform it separately at the time, although she was worried about doing so as a female. At the conclusion of the hearing, the applicant confirmed to the Tribunal that she had no further evidence to submit.

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

23. 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.

24. The Tribunal notes that the NOICC dated 17 May 2021 was properly despatched by the Department to the applicant. She decided not to respond to it. The Tribunal has 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.

25. 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?

26. 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 was non-compliance with s.101(b) of the Act.

27. The s.107 notice particularises non-compliance with s.101(b) of the Act by the applicant in relation to her second Subclass 417 visa application. It indicates the applicant incorrectly answered questions in that visa application in relation to having performed 3 months specified work in a regional area.

28. It is not in dispute that the applicant’s visa application falsely declares the performance of 3 months specified work in a regional area. Whilst the applicant initially sought to distance herself from full responsibility for the contents of the application, by indicating it was completed on her behalf by ‘Lee’ for $500, in due course, she accepted responsibility.

29. Following careful consideration, the Tribunal finds that the incorrect answers regarding the applicant’s performance of 3 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.

30. 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?

31. 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).

32. 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.

33. 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].

34. The Tribunal notes the applicant did not respond to the NOICC issued by the Department. On balance, the Tribunal finds that the lack of response of the applicant to the NOICC dated 17 May 2021 weighs neither in favour, nor against, cancellation of her visa, given that more contemporary evidence is before it.

35. The correct information in relation to the questions in the relevant visa application previously outlined is that the applicant did not perform 3 months specified work in a regional area. The false information submitted in her visa application regarding this topic is, in the view of the Tribunal, a very serious matter. This is particularly so given the applicant knew she was not entitled to be granted the second Subclass 417 visa without performing the relevant work, but chose to pay ‘Lee’ the sum of $500 to proceed with the visa application. These circumstances weigh strongly in favour of cancelling the applicant’s Subclass 417 visa, given the deceitful 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.

36. The Tribunal forms the view that the decision regarding the applicant being granted the second Subclass 417 visa was based wholly or partly on incorrect information. That is, the applicant’s visa application untruthfully submitted that she performed 3 months specified work in a regional area. Given that this topic is central to the grant of a second 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 second Subclass 417 visa to the applicant weigh strongly in favour of cancelling her visa.

1. The Tribunal finds that the applicant engaged in a deliberate course of conduct to pursue a second Subclass 417 visa application in the knowledge that she had not performed 3 months specified work in a regional area. That she chose to pay $500 to ‘Lee’ to lodge the application on her behalf reflects poorly upon her. Whilst the Tribunal understands that the applicant felt under pressure when the COVID-19 pandemic struck, and that she attempted to secure farm work, at no stage did she contact the Department during 2020 to discuss her options in light of the unfolding situation. Rather, she made the conscious decision to pursue a pathway that would submit incorrect information on her behalf in her second 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.

2. The applicant did not specifically submit that her present circumstances weigh against the cancellation of her visa. However, the Tribunal has considered that the applicant is employed in the banking sector in Sydney, she wishes to see more of Australia with her partner, she fears acquiring COVID-19 in Northern Ireland if she returns there, her father is ill and immunocompromised (notwithstanding the lacuna of medical evidence concerning this topic), her partner’s parents are in straitened circumstances and she wishes to remain in Australia with her partner in the long term (noting he is also subject to the cancellation of his Subclass 417 visa). However, the Tribunal notes that the applicant (and her partner) are fully vaccinated against COVID-19, which will mitigate the health risks to her if she returns to Northern Ireland, noting that the virus is prevalent in that location. Further, the Tribunal considers that given the applicant’s education she will be able to find suitable employment and accommodation if she returns to her native Northern Ireland, particularly in the company of her partner who is a qualified tradesman. Additionally, the Tribunal considers it reasonable for the applicant and her partner to fund their return air travel to Northern Ireland, given they have both now been continuously employed in Australia for some time. On balance, the Tribunal finds that the applicant’s present circumstances weigh neither in favour, nor against, cancellation of her visa given that she aspires to remain in Australia, yet there is no persuasive reason why she cannot return to her native Northern Ireland.

3. The Tribunal has carefully considered the subsequent behaviour of the applicant concerning her 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.

4. 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 second Subclass 417 visa on 3 August 2020, approximately 17 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, nor against, cancellation of her visa.

5. 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 her Subclass 417 visa. The applicant contends that she has made a contribution to the community through her expenditure of funds in the hospitality sector (and desire to continue to do so). Further, the Tribunal accepts she has engaged in meaningful employment in Australia, including with the NSW Government in Sydney. Following careful consideration, the Tribunal finds that these matters weigh slightly against the cancellation of her Subclass 417 visa.

6. 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.

7. 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 she does not hold a valid visa she will become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. She may 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 be unable to be removed to The Republic of Ireland (her country of nationality) or The United Kingdom (her country of domicile). 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.

8. The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant if her Subclass 417 visa is cancelled. As outlined above, the applicant contended she would face difficulty securing accommodation in Northern Ireland due to the predicaments of her parents and those of her partner. Further, she will have to fund international airline tickets to depart voluntarily and she is likely to be unable to return to Australia in the short term. The Tribunal accepts that there will be some hardship for the applicant if her visa is cancelled in relation to leaving current employment, funding airline tickets, having a period of adjustment when returning to life in Northern Ireland (primarily in terms of finding accommodation and employment), seeking further Australian visas and the ability to conduct additional travel in Australia. On balance, the Tribunal finds that the applicant would face a limited degree of hardship if her visa is cancelled and this weighs slightly against the cancellation of her Subclass 417 visa. For completeness, the Tribunal notes it simply does not accept the contention that the applicant will be unable to secure accommodation when returning to her native Northern Ireland. This is due to her skillset and that of her partner which will enable them to locate acceptable employment within a reasonable time frame to fund accommodation. Furthermore, the Tribunal notes that the applicant advised she would remain together with her partner, Mr Conor Stevenson, regardless of the outcome of merits review. This is a matter that weighs neither in favour, nor against, cancellation of her visa.

9. 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.

10. 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 deceitful course of conduct to engage ‘Lee’ to lodge her second Subclass 417 visa application, relying upon the false premise that she completed 3 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.

11. 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

12. 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

13. 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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.