Grinham (Migration)

Grinham (Migration) [2022] AATA 938 (24 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Frederick Matthew Grinham
CASE NUMBER:  2113154
HOME AFFAIRS REFERENCE:               BCC2020/2727653
MEMBER:L. Symons
DATE:24 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 24 February 2022 at 4:37pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in extension application – 3 months of specified work in regional area while holding first visa – verification checks – discretion to cancel visa – no response to department’s notice – relationship with Australian, prevalence of COVID-19 in home country, border closures and flight cancellations – no approach to department – paid third party to prepare and submit application – non-compliance conceded – later offer of work in regional area and future plans – legal consequences of cancellation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(5)
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of the United Kingdom (UK) and was born on [Date]. He was granted his first Subclass 417 (Working Holiday) visa on 19 October 2019. He arrived in Australia on 1 December 2019 and his visa was valid until 1 December 2020.
On 26 October 2020, the applicant made an application to the Department of Immigration (the Department) for a second Subclass 417 (Working Holiday) visa. One of the requirements for a second Subclass 417 (Working Holiday) visa is that he must have completed 3 months of specified work in regional Australia. In his visa application, he claimed that he had completed 3 months of specified work in regional Australia. On 26 October 2020, he was granted a second Subclass 417 (Working Holiday) visa.
On 28 September 2021, the delegate cancelled the applicant’s second Subclass 417 (Working Holiday) (Extension) visa under s.109(1) of the Act on the basis that on 26 October 2020 he provided incorrect answers in his application for a second Subclass 417 (Working Holiday) (Extension) visa. On 28 September 2021, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal, via video, on 15 February 2022 to give evidence and present arguments.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
On 7 September 2021, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of his Subclass 417 (Working Holiday) (Extension) visa as he considered that there had been non-compliance with s.101(b) of the Act. The NOITCC stated that s.101(b) of the Act provided that a non-citizen must fill in or complete his or her application in such a way that no incorrect answers are given or provided.
The NOITCC stated that the applicant lodged an application for a Subclass 417 (Working Holiday) (Extension) visa on 26 October 2020 via the Department’s online facility. The NOITCC stated that in response to the question “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?” he answered “Yes”.
The NOITCC stated that under the heading “Details of specified work undertaken” the applicant provided the following answers in part:
Employer details
Legal registered name:  Lincara Pty Ltd
Trading name:  Wandin Valley Farms
Australian Business N umber:            56831787511
Employer business address:
Address:47 Hunter Road
Suburb/Town  Wandin North
State/Territory:  Victoria
Postcode:3139
Work conditions:
Employment type:  Direct employment
Industry type:  Agriculture, forestry and fishing
Industry type sub-group:  Plant and animal cultivation
Description of duties:  Cherry picking and separating cherries into different sections, placing plastic bags onto mouldings and putting boxes onto pallets
Date from:  16 March 2020
Date to:  05 July 2020
Total days worked:  90
The NOITCC stated that under the heading “Working Holiday Declaration”, in response to the question “Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first Working Holiday visa, the applicant answered “Yes.” The NOITCC stated that based on this information, as well as meeting other criteria, he was granted a Subclass 417 (Working Holiday) (Extension) visa on 26 October 2020.
The NOITCC stated that the Department subsequently initiated employment verification checks with The Trustee for The Sebire Family Trust trading as Lincara Pty Ltd, the business registered under ABN 56831787511, to verify the applicant’s employment claims. On 19 November 2020, Lincara Pty Ltd contacted the Department and advised that he never worked at their business.
The NOITCC set out the provisions of s.98, s.99, s.100 and s.101 of the Act. It stated that the delegate considered that the applicant had not complied with s.101(b) of the Act, which required the applicant to fill in his application form in such a way that no incorrect answers are given or provided, as follows:
·When he answered “Yes” to the question “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?”
·When he provided details of claimed employment with Lincara Pty Ltd in the section of the application form titled “Details of specified work undertaken” and
·When he answered “Yes”’ in the declaration “Working Holiday Declaration” to the question “Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first Working Holiday visa”.
The NOITCC stated that the delegate considered the above information to be incorrect because verification checks undertaken by the Department had concluded that he never worked at the business Lincara Pty Ltd as claimed and therefore had not undertaken 3 months of specified work in regional Australia. It stated that the delegate considered that, based on the above information, he had provided incorrect answers in support of his application for a Subclass 417 (Working Holiday) (Extension) visa. It stated that the delegate considered that he had not complied with s.101(b) of the Act and his Subclass 417 (Working Holiday) (Extension) visa may be liable for cancellation under s.109 of the Act.
The NOITCC invited the applicant to comment on the possible non-compliance and give a response as to why his visa should not be cancelled in writing within 14 calendar days after he was taken to have received the letter. He was advised of the process for deciding whether his visa should be cancelled and that his response would be taken into account. He was advised that his obligations under ss.104 and 105 of the Act continue. He was advised of the provisions of ss.108, 109, 111 and 112 of the Act. He was advised of the provisions of r.2.41 of the Regulations and what matters the delegate would consider. He was advised that he was required to keep the Department informed of his residential address and any change in his residential address until the time a decision is made about whether to cancel his visa.
The applicant did not respond to the NOITCC.
The applicant’s subclass 417 (Working Holiday) (Extension) visa was cancelled on 28 September 2021.
The applicant provided the Tribunal with copies of an Application to Enter the Northern Territory dated 13 August 2021, an Application for Approval to Enter the Northern Territory on 16 August 2021 and an undated letter from All Regions Electrical at Katherine in the Northern Territory indicating that the applicant will be commencing work as an electrician at Katherine on 1 September 2021 after completing his quarantine period in Howard Springs.
During the hearing, the Tribunal went through the NOITCC with the applicant and he agreed with the information in the NOITCC. He agreed that, by giving the Department incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa, he had breached s.101(b) of the Act.
In view of the above, the Tribunal finds that the applicant gave or caused to be given incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa. Specifically, the Tribunal considers that his answers to the following questions and the declaration in the visa application lodged on 26 October 2020 were incorrect:
In response to the question “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa subclass 417?” the applicant incorrectly answered “Yes”.
Under the heading “Details of specified work undertaken” the applicant provided the following incorrect answers:
Employer details
Legal registered name:  Lincara Pty Ltd
Trading name:  Wandin Valley Farms
Australian Business N umber:            56831787511
Employer business address:
Address:47 Hunter Road
Suburb/Town  Wandin North
State/Territory:  Victoria
Postcode:3139
Work conditions:
Employment type:  Direct employment
Industry type:  Agriculture, forestry and fishing
Industry type sub-group:  Plant and animal cultivation
Description of duties:  Cherry picking and separating cherries into different sections, placing plastic bags onto mouldings and putting boxes onto pallets
Date from:  16 March 2020
Date to:  05 July 2020
Total days worked:  90
Under the heading Working Holiday Declaration, in response to the question Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first Working Holiday visa, where the applicant incorrectly answered “Yes”.
For these reasons, 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?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The correct information is that the applicant never worked in a specified job in regional Australia for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa. He was never employed by Lincara Pty Ltd.
The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa.
The content of the genuine document
Not applicable.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted a Subclass 417 (Working Holiday) (Extension) visa on 26 October 2020 on the basis that he satisfied the criteria for the visa. One of the criterion is cl.417.211(5) which requires the Minister to be satisfied that, if the applicant held only one Subclass 417 visa in Australia, he has carried out a period or periods of specified work in regional Australia as the holder of the visa and the total period of work carried out is at least 3 months and he has been remunerated for the work in accordance with relevant Australian legislation and Awards.
The applicant relied on incorrect answers in his visa application that he worked at Lincara Pty Ltd, in a specified job, in regional Australia, and undertook this work for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa to satisfy the criterion in cl.417.211(5). The Department’s Decision Record indicates that the delegate relied partly on these incorrect answers to grant him the Subclass 417 (Working Holiday) (Extension) visa. The Tribunal finds that the decision to grant him the visa was partly based on these incorrect answers.
The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa.
The circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred were that the applicant applied for a Subclass 417 (Working Holiday) (Extension) visa on 26 October 2020 and provided incorrect answers in his visa application.
The applicant did not provide the Department with a response to the NOITCC.
During the hearing, the applicant gave evidence that he wanted to apply for a second Working Holiday visa because he was dating an Australian woman at the time and the situation in the UK in relation to the Covid pandemic was bad. The number of Covid cases and the death toll in the UK was high. His mother is a nurse and she was encouraging him to stay in Australia. He also fell in love with Australia and wanted it to be his “forever home”. His plan had been to go to a farm in March 2020 but Covid cases were spreading in Australia. He and his friends tried getting work on farms but farmers did not want to take people from Sydney and he was living in a local government area of concern. Then the borders started closing. He booked a flight to return home in late April or May 2020 but the flight was cancelled and other international flights to the UK were also cancelled.
The applicant stated that he was running out of time on his first Working Holiday visa and did not want to remain in Australia without a visa. A colleague at work gave him the details for someone referred to as Golden Fish. He told him that, if he could not do the farm work, he could pay this guy and he would sort it out. He thought he was paying not to do the farm work. He paid this man $1,000.00 to prepare his visa application and provided him with his passport details, visa number and generic details. It turned out that he was not “legit” and he was scammed. When asked whether Golden Fish was a registered migration agent, he responded that he found out about him through word of mouth from colleagues and through emails. He has run this through his head a thousand times.
The Tribunal asked the applicant whether he was aware, before he applied for the second Working Holiday visa, that it was a requirement for a second Working Holiday visa that he had to have undertaken specified work in regional Australia for 3 months and he responded yes. He was stressed at the time, was still trying to get to regional Australia and thought it was the only option rather than be here without a visa. When asked whether he understood that he was employing Golden Fish to do something unlawful on his behalf, he responded that in the end he did.
The Tribunal asked the applicant whether he consulted a lawyer or a registered migration agent to obtain some immigration advice in relation to his options for applying for another visa. He responded that at that time Covid visas were not available and only came into effect sometime later. He tried to talk to a couple of lawyers but he did not have the funds to pay the costs they were quoting. He then became embedded with Golden Fish. Once he got the second Working Holiday visa he tried hard to go to the Northern Territory and work there. A friend of his got a job at All Regional Electrical in the Northern Territory and they were building community housing for first nations peoples. He wanted to give something back because he did not deserve to be here. He applied for an exemption to enter the Northern Territory to work there as an electrician but was unsuccessful.
The Tribunal asked the applicant whether, when he realised his situation, he contacted the Department to ask for help. He responded that he did not. He was scared and thought they would kick him out.
Having considered this evidence, the Tribunal accepts that the applicant made attempts to find farm work in regional Australia but was unable to obtain farm work due to the circumstances caused by the Covid pandemic. The Tribunal accepts that he did not wish to return to the UK because he was dating an Australian woman at that time, the Covid pandemic was bad in the UK, his mother was encouraging him not to return to the UK and he had fallen in love with Australia and wanted to live here permanently. The Tribunal accepts that he booked a flight to return to the UK but that flight was cancelled and other flights to the UK were also cancelled.

The Tribunal accepts that the applicant was running out of time on his first Working Holiday visa, was feeling stressed and desperate and did not want to remain in Australia without a visa. However, the Tribunal notes that he was aware that he needed to have completed 3 months of specified work in regional Australia whilst the holder of his first Subclass 417 (Working Holiday) visa in order to be granted a Subclass 417 (Working Holiday) (Extension) visa and that he did not satisfy those requirements. The Tribunal is not convinced that he thought he was paying Golden Fish $1,000.00 to get an exemption from doing the 3 months specified work in regional Australia.
The Tribunal is therefore of the view that the applicant knowingly engaged the services of Golden Fish to obtain a visa he was not entitled to and was aware, or should have been aware, that Golden Fish would have provided incorrect answers in his visa application, on his behalf, in order to obtain the visa. His evidence tends to indicate that he made some bad decisions, in challenging circumstances, without proper consideration of the consequences of those decisions. However, ultimately, he is responsible for his decisions and the consequences of those decisions.
The Tribunal gives this consideration weight in favour of affirming the decision to cancel the applicant’s visa.
The present circumstances of the visa holder
The applicant is a citizen of the UK and was born on 12 October 1993. His parents, grandparents and sister live in the UK. He has no family in Australia. He has made friends in Australia and they have become like family. He is dating an Australian woman named Kristen. He is an overseas qualified and licenced electrician. He would like to get licensed in Australia and become a fully licensed electrician. He has been working as an electrician in Sydney since the beginning of January 2020. As the international borders are now open, he would like to return to the UK to visit his family as he has not seen them for 2 ½ years. However, he wants to make Australia his home.
Having considered this evidence, the Tribunal accepts that if the applicant’s visa is cancelled it would adversely impact on his relationship with his partner, his employment plans and on his plans to build a future for himself in Australia.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence before the Tribunal to indicate that the applicant attempted to contact the Department to correct the incorrect answers provided in his application for a Subclass 417 (Working Holiday) (Extension) visa. He also did not engage with the Department after he received the NOITCC.
During the hearing, the Tribunal asked the applicant why he did not respond to the NOITCC. He responded that he panicked when he received the NOITCC. He tried to obtain advice from a lawyer but was quoted an outrageous amount of money. His funds were low. He was scared and worried. He did not know how to address the NOITCC. He should have just said what he felt.
The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal to indicate that there are other instances of non-compliance by the applicant.
During the hearing, the applicant gave evidence that he has complied with his visa conditions. The Tribunal accepts this evidence.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
The time that has elapsed since the non-compliance
The non-compliance occurred on 26 October 2020 when the applicant provided, or caused to be provided, incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa. It has been almost 1 year and 4 months since then. The Tribunal does not consider this to be a substantial period of time.
The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal to indicate that the applicant has breached any laws since the non-compliance.
During the hearing, the applicant gave evidence that, whilst living in Australia, he has not breached any other laws, has not been in trouble with the Police and has not been charged with any criminal offence. The Tribunal accepts this evidence.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
Any contribution made by the visa holder to the community?
During the hearing, the Tribunal asked the applicant whether he had made any contribution to the Australian community. He responded that, apart from a few charity boxes, he has not. He would like to go to Katherine and work for first nations peoples there.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Whether there would be consequential cancellations under s.140 of the Act
There is no evidence before the Tribunal to indicate that there would be consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled. During the hearing, the applicant confirmed that no one else’s visa would be cancelled if his visa is cancelled.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Are there children whose interests would be affected by the cancellation of the visa
There is no evidence before the Tribunal to indicate that the applicant has any children whose interest would be affected by the cancellation of his visa.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Would the cancellation lead to the applicant’s removal in breach of Australia's non-refoulement or family unity obligations
There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s visa would lead to his removal in breach of Australia’s non-refoulement or family unity obligations.
During the hearing, the applicant gave evidence that there is no reason why he cannot return to the UK. The borders are now open. He wants to make Australia his home, move things forward with his partner and have a family here. He wants to be here and wishes that things were different.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will become an unlawful non-citizen and may be liable to be detained under s.189 of the Act and removed under s.198 of the Act unless he departs Australia voluntarily. It is unlikely that he would be granted a Bridging visa on departure grounds and, even though he will not have a valid visa, he will have sufficient time to depart Australia voluntarily. As there is no reason why he cannot return to the UK, there is no prospect of indefinite detention if he does not depart Australia voluntarily.
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criteria may prevent him from being granted particular temporary visas for a period of 3 years from the date of cancellation. This will affect his ability to make a valid application for certain visas. These are the intended legal consequences in the legislation when a visa is cancelled and it reflects the seriousness of a breach of s.101(b) of the Act and consequent cancellation of a visa.
The Tribunal gives this consideration no weight against affirming the decision to cancel the applicant’s visa.
Any other relevant matter
During the hearing, the applicant gave evidence that he had been an idiot. He was very silly and naïve to think something like that was legitimate. He wishes he had done things differently. He would like to be given another chance. He has no problem moving to an area where he can give back. He would love to live in Australia permanently. He would change his qualifications and have a family. He will have a sponsorship waiting if he gets past this.
The Tribunal accepts that the applicant would like to make amends for what he did and that he is prepared to work as an electrician in regional Australia.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
CONCLUSION
Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Subclass 417 (Working Holiday) (Extension) visa outweigh the grounds for not cancelling his visa. Therefore, the Tribunal concludes that the Subclass 417 (Working Holiday) (Extension) visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
L. Symons
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 938

24 February 2022

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