Fallon (Migration)

[2021] AATA 4656

Fallon (Migration) [2021] AATA 4656 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Geoff Fallon

CASE NUMBER:  2107925

HOME AFFAIRS REFERENCE(S):          BCC2020/2294434

MEMBER:Moira Brophy

DATE:5 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 05 November 2021 at 2:37pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers in extension application – specified work in regional area for 3 months – verification checks showed claimed work not undertaken – discretion to cancel visa – paid third party to lodge application – some specified work, limited by COVID-19 restrictions, for another employer after extension granted – continuing work in sector with skills shortage – further specified work towards second extension application – relationship with permanent resident – remorse and character reference – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 417.211(5)

CASE
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).

2. The delegate cancelled the visa on the basis that the applicant provided false information in their application for a visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by way of a video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 29 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Emily Lazell, who is the applicant’s partner. 

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Background

6. The applicant is a 28-year-old male born in Ireland. He entered Australia on 1 October 2019 on a Subclass 417 (Working Holiday) visa which ceased on 8 February 2015. The applicant was granted a further Subclass 417 (Working Holiday) visa on 31 September 2020.

7. As part of his application for a further Subclass 417 (Working Holiday) visa the applicant completed an electronic application form and in response to a question about specified work in regional Australia for a total period of three months the applicant indicated he had undertaken that work.

8. Prior to hearing the applicant provided the following:

   ·Evidence the applicant and his partner Ms Emily Lazell held a joint bank account.

   ·Letter dated 21 October 2021 from Ciaran Wynne Operations Manager at Luhan Group Pty Ltd.

   ·Character reference from Patrick Phelan, Sydney Shamrocks.

   ·Payslips for work undertaken with Atom Resources in regional areas for period from 1 August 2020 to 4 October 2020.

   ·Letter from Luhan Group dated 17 June 2021 stating sponsorship of the applicant was being considered.

   ·Letter to applicant with offer of employment from Luhan Group dated 5 October 2021.

   ·Statement from Ms Emily Lazell.

   ·Call logs and photographic evidence of ongoing relationship.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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.

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

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

12. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects:

    ·Visa applications to be correct.

    • A non-citizen must fill in his or her application form in such a way that:
    • all questions on it are answered; and
    • no incorrect answers are given.

13. The breach of s 101(b) relates to a Subclass 417 Working Holiday visa (the Working Holiday visa) the applicant was granted on 31 July 2020.

14. Section 99 of the Act provides that any information 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 s 100, s 101(b), s 102(b), s 104 and s 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.

15. The Working Holiday visa application form (lodged online by the applicant on 15 July 2020) included the following questions and answers:

    Q: Have you undertaken specified work in regional Australia for a total of 3 months?

    A: Yes.

16. The application form included a detail of specified work undertaken section, and in response the applicant provided the following information:

    Legal registered name: AAG Labour Services Pty Ltd
    Trading name: AAG Labour Services Pty Ltd
    Australian Business Number (ABN): 21126217294
    Postcode: 6275
    Industry type: Agriculture, Forestry and Fishing
    Industry type sub-group: Plant and Animal Cultivation
    Date from: 2 March 2020
    Date to: 5 July 2020
    Total days worked: 90.

17. The Department initiated employment verification checks with AAG Labour Services Pty Ltd, the business registered under ABN 21126217294, to verify the applicant’s employment claims. On 10 September 2020, AAG Labour Services Pty Ltd contacted the Department and advised that he never worked at their business.

18. Based on this information, the delegate considered the applicant did not comply with s 101(b) of Subdivision C of the Act, because at the time he lodged his Subclass 417 Working Holiday (Extension) visa on 31 July 2020 he provided answers to questions asked that were incorrect. The delegate considered those answers to be incorrect because the nominated employer had given advice that the applicant had not been employed by them.

19. The non-compliance identified and particularised in the s 107 notice was non‑compliance with s 101(b) by the applicant in the way described in the s 107 notice sent to the applicant on 26 April 2021.

20. The applicant responded on 6 May 2021 with the following:

    ·A character reference / letter of good conduct from a recent employer, relating to time spent completing regional/specified work in Bathurst (postcode NSW 3795) in the period from 17 August 2020 to week ending 4 October 2020 – Luhan Group Pty Ltd. under ABN 54166713846. The applicant stated he should have commenced this work one and a half months earlier to complete the 90 days required, but extenuating circumstances (COVID-19 local and state lockdowns) precluded him from effectively and safely doing so. This regional work (post second year visa approval) was in his words his attempt to ‘make amends for my mistake’.

    ·Payslips in the name of the applicant from 22 March 2021 to May 2021 from regional/specified work in Crookwell (postcode NSW 2583) and West Wyalong (postcode NSW 2671), undertaking works for the NSW Government project ‘Cooler Classrooms Program’ – a regional school infrastructure initiative - Atom Resources Pty Ltd under ABN 91609547999 subbed into JR Electrical. The applicant submitted these payslips to demonstrate a change in character and how he had every intention of completing the six months regional / specified work required for his third year working holiday visa as required.

    ·Professional certificates for the applicant, evidence of his experience in a skilled profession UNIT Group 3411 – Electrician.

    ·Evidence of ongoing relationship with an Australian Permanent Resident.

    ·Submissions by applicant as to compelling reasons NOICC should be set aside.

    ·Irish police check in name of applicant which shows no history of unlawful or criminal activity.

21. The Tribunal has considered the material on file, the NOICC and the response received. The Tribunal has considered the submissions as to the state of mind of the applicant at the time and the prevailing conditions particularly given the impact of COVID.

22. The Tribunal accepts the applicant was experiencing many personal challenges at this time and that these impacted on his decision making. The Tribunal also accepts the impact of COVID on employment opportunities at the time. However, the Tribunal was also mindful the applicant had engaged the agent, and this was indicative of his preparedness to access and use services that would enable him to achieve his preferred migration outcome.

23. The Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

24. 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).

25. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (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.

26. 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.

27. The applicant was informed at the beginning of the hearing that each of the reg 2.41 prescribed circumstances would be considered by the Tribunal and any other relevant facts and matters. The Tribunal has had regard to the documentary evidence the applicant provided prior to hearing and to the oral evidence given by the applicant at the hearing.

28. The Tribunal has taken these matters into account when considering the discretion. The Tribunal has also taken into account that had the incorrect information not been provided – and the correct information had been – relating to the regional work requirement, the Working Holiday visa would not have been granted in 2020.

    The correct information

29. The applicant was granted the Working Holiday visa on 31 July 2020 on the basis that he had worked for at least three months in specified work in regional Australia. The applicant was asked at the hearing what the correct information was relating to his work in a regional area at the time he lodged the application. He said he had not undertaken the work as claimed in a regional area during the period from 2 March 2020 to 5 July 2020 as he had indicated in his application.

30. The Tribunal has found that the correct information at the time of application was that the applicant had not worked for at least three months in specified work in regional Australia.

31. The correct information was not provided. This is a significant issue which weighs in favour of cancellation.

    The content of the genuine document (if any)

32. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information

33. Clause 417.211(5) of Schedule 2 to the Regulations requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa, and the total period of the work carried out is, or is equivalent to, at least three months’ full-time work.

34. The Tribunal finds that the assessment of the applicant’s claimed previous employment in regional Australia was central to the assessment of his eligibility for the Working Holiday visa. The Tribunal finds that the decision to grant the Working Holiday visa was based on incorrect information relating to the applicant’s employment in regional Australia. This weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

35. The applicant told the Tribunal that he had not intended to apply for a second Working Holiday visa when he came to Australia. It had been his intention to return home at the expiry of his visa. He had been granted the visa on 21 August 2019 and had arrived in Australia on 1 October 2019. He commenced work about three weeks after he arrived. He was very happy living and working in Australia and started to explore his options. He became aware of the three-month work in regional Australia requirement and started investigating possibilities. However, this was not easy as it was around the time of the first COVID shutdown in March 2020.  He had been working with the Luhan Group and he had discussions with them about being sponsored by them to remain in Australia. While initially they had been very open to the idea, they were not able to proceed because of COVID restrictions. The applicant said at the time there was exemptions for certain occupations and they were able to apply for a 408 visa but at that time his occupation was not listed as a critical worker and that precluded him from applying for that visa. He contacted many groups advertising on Facebook for farmworkers but he said there was a reluctance from farms in the regions he contacted to enter arrangements with workers from Sydney as they saw them as being a possible carrier of the virus to the regions which were essentially COVID free during this period. He was out of work for two months during the first lockdown and with his not being entitled to any assistance that was a very stressful time. The applicant said he was very stressed about not being able to meet the requirements for a second Working Holiday visa and was fearful of having to return to Ireland given the COVID situation there. When he heard from a friend that there was someone he could engage to handle the application in a way that ensured a positive outcome for him, he contacted them. He said he never met with him, it was all done via email, and he paid him a sum of money to handle the application for him. The applicant told the Tribunal he understood he was not able to meet the requirements of the visa and that information provided that he did meet the requirements was false. He said he did not take any action to ensure the information provided was in fact correct. He paid someone to take care of the matter as he considered he had no other option given that time was running out for him to meet the requirement. He was not able to return to Ireland with COVID restrictions and he was unable to complete the work requirements to stay in Australia because of COVID.

36. Under circumstances of immense pressure and stress, because of COVID and his failure to secure regional work despite his trying, the applicant admits he made a regrettable and wrong decision. He is remorseful and fully appreciates the severity of his actions, largely caused by the stress of the COVID-19 pandemic. While not fully appreciative at the time of the potential ramifications of the decision he made he certainly is now. The applicant gave oral evidence to this effect at the hearing. He was frank and open about his error of judgement. He has disclosed his error to his employer and colleagues and his regret in providing the incorrect information.

37. The Tribunal is satisfied the applicant’s decision to provide incorrect information was out of character and a consequence of the difficulties he faced in securing specified work in regional Australia due to the crisis and chaos associated with the outbreak of COVID-19. It is also satisfied that during the time, while not undertaking specified work, the applicant was working as a tradesperson in a critical area.

    The present circumstances of the visa holder

38. The applicant told the Tribunal that after he received his second Working Holiday visa he was filled with remorse. His first visa had an expiry date of 31 September 2020. He received a call from Luhan Group Pty Ltd who he had previously worked for and he was offered work in the Bathurst area. They rang on the Friday and he commenced work there on the Monday. He was working on NSW Government buildings. He worked there in the period from 17 August 2020 to week ending 4 October 2020. This regional work (post second year visa approval) was in his words ‘his attempt to make amends for his mistake’.

39. For most of his time in Australia he has been employed by the Luhan Group as an electrical contractor. He undertook further work in a regional area from 22 March 2021 to May 2021. This was regional/specified work in Crookwell (postcode NSW 2583) and West Wyalong (postcode NSW 2671), undertaking works for the NSW Government project ‘Cooler Classrooms Program’ – a regional school infrastructure initiative. His employer was Atom Resources Pty Ltd under ABN 91609547999. He intended to continue with that work but when he received the NOICC he returned to Sydney as he was very distressed, and he wanted the support of his partner. Since then he has been employed by the Luhan Group working on a restoration project at the Sydney Opera House. He is obviously highly regarded by his employer as was evidenced by their stated willingness to sponsor him to stay in Australia. The applicant submitted he was working in a skilled capacity and contributing to Australia by his work. His skill set is on Australia’s skilled occupation list. He is currently living with a friend in Coogee. He is in a relationship he sees as long term with an Australian permanent resident. The applicant appreciated his life in Australia, and he was wanting to stay on a long-term basis. It was his intention to apply for a permanent visa if that was possible. While accepting of the mistake that had been made and his role in that, he asked that the prevailing uncertainty at the time because of COVID be taken into consideration. He understood the consequences of his providing false information at the time of the application. He told the Tribunal he was truly remorseful and wished he had his time over again. Statements provided to the Tribunal from friends of the applicant spoke of his genuine remorse.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

1. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations. This is a relevant consideration and weighs against cancellation.

   Any other instances of non-compliance by the visa holder known to the Minister and any breaches of the law since non-compliance

2. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal is not aware of any other breaches of the law since the non-compliance. The Tribunal has given weight to this as a factor against cancellation.

   The time that has elapsed since the non-compliance

3. It has been 16 months since the applicant provided incorrect answers. The Tribunal does not consider this to be a significant amount of time and accordingly does not place weight on this as a factor.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

4. There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal has given weight to this as a factor against cancellation.

   Any contribution made by the holder to the community

5. When asked at the time of hearing, the applicant said he had made a positive contribution to the Australian community. He had participated in community and sporting events.

6. The Tribunal is of the view that it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.

7. As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered additional matters that under policy should be considered, where relevant, in relation to the discretion to cancel a visa under s 109. They are:

   ·whether there are persons in Australia whose visas would, or may, be cancelled under s 140 of the Act;

   • whether there are mandatory legal consequences to a cancellation decision; for example, whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non‑refoulement obligations;
   • whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g. s 46A, s 46B, s 48, s 48A etc. of the Act);
   • whether, upon cancellation, the person would become an unlawful non‑citizen (unless the person holds another visa that is in effect) and is liable to be detained under s 189 and removed under s 198 of the Act;
   • whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; for example: if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;
   • whether the cancellation would lead to the person’s removal in breach of Australia’s non‑refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, or cruel, inhuman, or degrading treatment or punishment; and
   • any other relevant matter.

   Whether there would be consequential cancellations under s 140

8. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

9. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non‑citizen who could be detained and removed from Australia pursuant to s 189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three‑year exclusion period unless he meets the relevant public interest criterion. The Tribunal acknowledges the difficulty this would cause the applicant; however, it finds this not to be sufficient to weigh in the applicant’s favour.

10. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although the applicant may have limited opportunities when making future visa applications in Australia.

11. While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if his visa is cancelled, he has benefited from providing the incorrect information in the Working Holiday visa application and it is very likely that he would not have been granted that visa if he had provided correct or accurate information about satisfying the work requirement.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

12. There is nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

13. When asked about the hardship that may be caused by cancellation of his visa the applicant said it was the effects on his future opportunities that was of most concern to him. He very much wanted to be able to stay in Australia, to build his life with his partner and to contribute to Australia with his skills. He said he would be able to return to Ireland and live with his family if he had to, but it would be very difficult especially on his partner. He had a close relationship with his mother, brother and sister. His father had died some years ago. His family were aware of his current situation. He told the Tribunal his mother had expressed her disappointment in his actions. He enjoyed his work in Australia and his opportunity to work on community projects such as schools, hospitals, and the Opera House. He appreciated Australian values and wanted the opportunity to be able to make a contribution to the country. The Tribunal has also considered if the decision is affirmed the degree of hardship on his partner, Emily. They presented as a couple who have built a strong and supportive relationship. If the applicant were to return to Ireland, she indicated she would go with him and that would have a negative impact on her career. The Tribunal also acknowledges there would also be an adverse effect on both the applicant and his partner’s finances if they had to relocate and establish themselves again.

14. The Tribunal has also considered the potential impact of the current COVID-19 pandemic both in Australia and Ireland and appreciates the applicant’s concerns in this regard.

    Conclusion on the exercise of the discretion

15. In considering the exercise of the discretion, the Tribunal has considered the totality of the applicant’s circumstances including his submission that he was largely in this situation because of COVID and the uncertainty because of that at the time the application was made.

16. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101.

17. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. There are no consequential cancellations.

18. Overall, the Tribunal accepts there was non-compliance with s 101(b) by the applicant however it is satisfied this was out of character and a consequence of the COVID-19 crisis and chaos. The Tribunal has found the applicant to be a frank and reliable witness. It is satisfied he is truly remorseful. While it accepts he probably would not have been granted the visa but for the incorrect information, it gives significant weight to his contrition as demonstrated by his undertaking specified work in a regional area as his way of atoning for his mistakes and his work in an area where there is a skills shortage as evidenced by its inclusion on the skills register. The Tribunal is of the view the breach albeit a serious breach, was isolated and it is satisfied he will make a valuable contribution to the Australian community if the cancellation is set aside. It will also enable his partner to remain here while working in the future. They are a committed couple and it accepts she will return to Ireland with him if her visa is cancelled.

19. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Moira Brophy
    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.