Hanley (Migration)

Hanley (Migration) [2021] AATA 5433 (8 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thomas Hanley
CASE NUMBER:  2109848
HOME AFFAIRS REFERENCE(S):          BCC2020/2401566
MEMBER:Louise Nicholls
DATE:8 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 08 December 2021 at 4:10pm
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 deliberately –applicant didn’t complete 6 months’ regional work –– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 (the Act).
The applicant first came to Australia as the holder of a Subclass 417 (Working Holiday) visa on 29 October 2018. While in Australia he obtained second and third working holiday visas. His third working holiday visa was granted on 6 September 2020 and cancelled by the delegate on 2 June 2021.
The delegate issued a Notice to Consider Cancellation (NOICC) pursuant to s. 107 of the Act on 13 July 2021 and cancelled the visa on 2 June 2021.
The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his Working Holiday (Extension) visa application for his third working holiday visa. The delegate found the visa holder had not complied with section s.101(b) of the Act. The delegate considered the circumstances relevant to the discretion whether to cancel the visa but after consideration concluded the visa should be cancelled.
The applicant sought review on 28 July 2021. He provided a copy of the delegate’s decision record and copies of the applicant’s Australian Federal Police and Irish Garda police checks. He later provided statutory declarations made by the applicant and his sister, copies of several statutory declarations from employers, friends and work colleagues. He also provided screen shots of domestic air tickets and itineraries from Sydney to Melbourne.
The applicant appeared before the Tribunal on 11 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. The applicant gave evidence in a straightforward manner and was extremely contrite. The Tribunal formed the view that the evidence he gave at hearing was credible and reliable.
The Tribunal exercised its discretion to hold the hearing by MS Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION
The issue in the present case is whether there are grounds for cancellation, and if so, whether the visa should be cancelled.
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.
Particulars of non-compliance identified in the NOICC?
The non-compliance identified and particularised in the s.107 notice was non-compliance with s101(b) as set out below.
The applicant provided the following information in the Working Holiday (Extension) visa application on 6 September 2020. The application was made using the Department’s online lodgement facility, providing the following answers on the electronic visa application form:
The following matters were particularised in the NOICC:
In response to the question ‘They have carried out at least six months of specified work’ the applicant answered ‘Yes’.
In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’ the applicant answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, the applicant provided the following answers
Employer Details
Legal registered name:   Banana Exchange Pty Ltd
Trading name:   Banana Exchange Pty Ltd
Australian Business Number   (ABN): 86052441139
Employer business address
Address:   Banana Exchange Pty Ltd
PO Box 442
Suburb / Town:   Tully
State / Territory   Queensland
Postcode:   4854
Work conditions
Employment type:   Direct employment
Industry type:  Agriculture, forestry and fishing
Industry type sub-group:   Plant and animal cultivation
Description of duties   Generally we could get to the farm at 6.30am. Then throughout the day I was generally in the factory where I would undertake a variety of different roles ranging from hanging, clustering, sorting and packing Bananas until 3.30pm with 2 x 15-minute cigarette breaks and 1 x 30 lunch break.
Date from:   27 Jan 2020
Date to:   16 Aug 2020
Total days worked: 190
Under the heading ‘Working holiday declarations’, in response to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’, the applicant answered ‘Yes’.
Based on the above information, as well as meeting other relevant criteria, the applicant was granted a Working Holiday (Extension) visa on 06 September 2020.
In the NOICC the delegate put it to the applicant that he provided incorrect information when he
·answered ‘Yes’ to the question ‘They have carried out at least six months of specified work’.
·answered ‘Yes’ to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’;
·provided details of claimed employment with Banana Exchange Pty Ltd, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
·answered ‘Yes’ to the declaration ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’.
Response to the NOICC.
On 26 July 2021 the applicant provided a response to the NOICC. In sum:
·He apologized for providing incorrect information in order for a third working holiday visa to be granted.
·He had intended on leaving Australia and returning to Ireland when his second working holiday visa ended in October 2020.
·However, at that time the pandemic began to get increasingly worse all over the world and in Ireland. The number of cases were up on around 600 plus a day, with deaths being confirmed on a daily basis.
·He believed he should try to stay in Australia. He did not want to travel home and risk catching the virus and giving to family members and putting them in danger.
·At the time Ireland was in a major lockdown so he could not be guaranteed to get employment if he returned.
·The Covid Visa for people other than health care workers was not in place at that time so that is why he applied for the third working holiday visa as he felt it was best option to avoid going home to Ireland.
·He is a qualified electrician, and over the past 4 months he had been working full time with Hanley Energy as a Controls Engineer for Amazon Services in various data centres in both Sydney and Melbourne. Hanley's had invested and depended heavily on him in Sydney as they are based in Ireland.
·He had been offered a 4-year sponsorship by Hanley Energy to stay in Australia and work for them here which he would love to be able to undertake. His work is critical to Amazon and the business works hard to make sure they never lose power to the data centres as this would have major impacts with their investment and growth in Australia.
·He is involved heavily in the local GAA community in the eastern suburbs by playing, training and involved on the various committees with Gaelic clubs. Prior to the lockdown in June 2021, he spent every Saturday afternoon in Centennial Parklands training young kids of both Irish expats and Australians in Gaelic games which is Ireland’s biggest sport. On Sundays, he spends the day in Ingleburn where the senior games take place, which involve setting up pitches, cleaning up at the end of the day, organising parking, running the shop.
·He is currently in a two-year relationship with a girl who wants to spend more time in Australia. If his visa is cancelled he would have to be separated from her.
Evidence at Hearing
The applicant gave evidence at a Tribunal hearing on 11 November 2021. He is 28 years old and was born and educated in Ireland. He completed qualifications in electrical engineering.
His parents and two younger sisters live in Ireland. He has a sister living in Melbourne. His father is a quantity surveyor, and his mother is a teacher. He was single before he left Ireland, but he is now in a relationship in Australia with another working holiday visa holder.
Before his first working holiday ceased he applied for, and was granted, a second working holiday visa. He had previously done three months of regional work in Gooloogong, NSW.
The applicant agreed that false information was provided in his application for a third working holiday visa. He stated he had not worked for six months at the Banana Exchange in 2020.
He stated that before he reached the end of his second working holiday visa he had planned to return to Ireland for his sister’s wedding. However, his sister’s wedding was cancelled due to the COVID pandemic. As he had not intended to apply for a third working holiday visa he had not done the extra farm work needed to apply for a third working holiday visa. At first, he thought that COVID would only be around for just a couple of weeks but then he realised he could not leave Australia and return. He did not want to go back to Ireland because the pandemic was much worse in Ireland than in Australia and he could still work in Australia.
His Melbourne based sister fell pregnant. She and her partner had been in Australia for seven years and had applied for permanent residence, but their applications were pending as they could not arrange the required medical assessments due to his sister’s pregnancy and COVID restrictions.
The applicant heard of a person called Lee Hansol that he thought was a migration agent. He was told by word of mouth that Lee Hansol could obtain visas, so he contacted him by email and provided him with his personal details. He had no face-to-face contact with Lee Hansol. He later found out that Lee Hansol had stated in the application form that the applicant had worked on a banana farm in Queensland. The applicant stated that Lee Hansol told him that he had put down that the applicant was working on a different farm in Western Australia. It was only when he received the NOICC that he realised that he was listed as having worked on a banana farm in Queensland. He paid Lee Hansol the sum of $2000 for obtaining the visa grant.
When asked why he went to Lee Hansol he stated he looked into getting a COVID visa, but it appeared they were only available to health care workers. He did not seek advice from the Department. He thought if he called the Department he might have to return to Ireland. He panicked and Lee Hansol appeared the only option open to him.
His sister and her partner are living in Melbourne and he is her only family member in Australia. He has visited her in Melbourne, when there were no travel restrictions, about 4-5 times to provide some family support. He provided evidence of his flight bookings to support this evidence.
The applicant gave evidence that after he was granted his third working holiday visa, he found work in Bathurst working as an electrician. He stated that at the time it was difficult to get jobs but it is the complete opposite now. After that he worked for Hanley Energy for 4 months and was also working for CY Electrical which is a small electrical business. All his previous employers offered to sponsor him for a temporary work visa.
He has been in a relationship with his current girlfriend for about two years. He believes they are in a long-term relationship. She is on third year working holiday visa but will not have his problems because she has completed the required regional work. His girlfriend is looking into applying for permanent residence, but she does not have enough experience.
He stated he had not been guilty of any breaches of the law.
He is heavily involved in a local GAA group. This is an Irish community group which manages Gaelic football matches and social events for Irish expatriates and Australians. There are about 150 members and they play football every weekend. He assists with the shop, social events, preparing the pitch and training sessions. The GAA is very important in helping newcomers integrate, make friends and find work.
The applicant also told the Tribunal his family in Ireland had all contracted COVID in 2020 and his father was severely ill and had been hospitalised on two occasions.
The applicant’s sister gave evidence by Microsoft Teams video. She is living in Melbourne, and other than her partner, the applicant is the only family member that she has in Australia. She has recently been working from home and trying to manage her infant daughter. She needed family support.
The Tribunal put it to him that it appeared there was clear evidence of non-compliance. The Tribunal was required to weigh the factors in deciding whether the visa should be cancelled.
Conclusion on non-compliance.
The Tribunal finds that the applicant provided incorrect information, in order to facilitate the grant of his Working Holiday (Extension) visa.
The applicant was required to undertake specified work in regional Australia, as defined in the legislative instrument in effect at the time of visa application, for a period of six months as part of the eligibility criteria for the grant of the Working Holiday (Extension) visa.
In the Working Holiday (Extension) visa application dated 6 September 2020, the applicant stated that he worked at Banana Exchange Pty Ltd for a period of 190 days. The Department received correspondence on 25 September 2020 from Banana Exchange Pty Ltd stating that the visa holder never worked at the business.
The Tribunal has considered the particulars of non-compliance set out in the NOICC and the information in the delegate’s decision record. The applicant has not disagreed with or sought to qualify the information on non-compliance set out in the NOICC and delegate’s decision record.
The applicant’s statement, as well as his answers, in the Working Holiday (Extension) visa application, of having worked for Banana Exchange Pty Ltd for a period of six months while the applicant held the second Working Holiday visa (subclass 417); or while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) and which was made at a time when the applicant held the first Working Holiday visa; and all of that work was carried out after 1 July 2019’, are incorrect answers as described by s.101(b).
In these circumstances the Tribunal is satisfied that there was relevant non-compliance as set out in the NOICC, that is, that the applicant provided incorrect information in the application for the Working Holiday (Extension) visa application lodged on 6 September 2020.
For these reasons, 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?
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 r.2.41 of the Regulations.
With respect to the prescribed circumstances the Tribunal notes that the applicant responded to the NOICC and provided evidence and submissions to the to the Tribunal concerning his circumstances.
From the evidence before it the Tribunal considers
·     The correct information. The applicant admitted that the information provided in his application and particularised in the NOICC was incorrect. That is, that the applicant did not work for Banana Exchange for six months between 27 January 2020 and 16 August 2020. In these circumstances the Tribunal finds that the applicant did not undertake specified work in regional Australia as defined in the legislative instrument in effect at the time, for a period of six months.
·     The content of the genuine document (if any). No documents were provided, and this factor is not relevant to the consideration.
·     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 third working holiday visa on the basis that he had completed specified work in regional Australia, as defined in the legislative instrument in effect at the time, for a period of six months. This was a requirement for the grant of a third working holiday visa. If the applicant did not meet this requirement he would not have been entitled to the grant of the visa and the delegate made the decision to grant the third working holiday visa in part on the incorrect information given by the applicant regarding his employment at Banana Exchange Pty Ltd.
·     The circumstances in which the non-compliance occurred. The applicant gave evidence that he had intended to return to Ireland to attend his sister’s wedding at the end of the period of his second working holiday visa. As he did not intend to apply for a third working holiday visa, he had not arranged to undertake six months of specified regional work. However, in August/September 2020 it became clear that the COVID pandemic had escalated in Ireland and his sister’s wedding was cancelled. His family members had all contracted COVID, and it was getting harder to find work in Ireland due to lockdowns. He wanted to support his sister in Melbourne, and he was scared of returning to Ireland where the rate of COVID infections were higher than Australia. He thought the best option was to remain in Australia, but he had not completed the required regional work, so he had engaged Lee Hansol to obtain a visa for him. He told the Tribunal he gave Lee Hansol his details and he had been told that his application would show he worked on a farm in Western Australia. He obtained the visa after Lee Hansol had submitted his application form. He later learned when he received the NOICC that Lee Hansol had included information that he had worked on the Banana Exchange Pty Ltd.
·     The present circumstances of the visa holder. The applicant is living in Sydney and working in an electrical business. He is a qualified electrical controls technician and electrician. He has provided a series of references from previous employers which showed he was a valued employee. The reference from Hanley Energy referred to the provision of incorrect information in his visa application and the opinion of the author was that the applicant made a mistake which was out of character. His other former employers and colleagues are aware of the visa issue and have stated that the applicant is regretful and sorry for the mistake he has made.
·     The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act. Although the applicant has acknowledged the non-compliance the delegate noted, the applicant acknowledged and the Tribunal accepts, that the applicant did not contact the Department to correct the incorrect information prior to being issued with the NOICC.
·     Any other instances of non-compliance by the visa holder known to the Minister. There are no other instances of non-compliance by the applicant before the Tribunal.
·     The time that has elapsed since the non-compliance. The Working Holiday Extension visa application was lodged on 6 September 2020. Fifteen months has elapsed since the non-compliance.
·     Any breaches of the law since the non-compliance and the seriousness of those breaches. There is no information before the Tribunal to indicate that the applicant has breached any laws since the non-compliance.
·     Any contribution made by the holder to the community. The applicant has provided evidence of his membership of a local Irish community Gaelic football club and his contribution to the operation of the club, training younger members and support for the Irish community in obtaining employment, accommodation and social contacts. The applicant has also contributed to the work of his various employers and he is held in high regard.

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.
There is no evidence that there would be any consequential cancellations under s.140 of the Act or that there are children whose interests would be affected by cancellation. There is no information that suggests that returning to the applicant’s home country, that is, the Republic of Ireland, would result in the applicant suffering serious or significant harm. There is also no suggestion that the applicant’s removal would result in a breach of family unity obligations.
If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention if he does not depart Australia. He will also be subject to a statutory bar which would restrict the visas he could apply for in Australia and Public Interest Criterion 4013 may prevent him from being granted certain types of visas for a period of three years from the date of cancellation. However, recent amendments to the Regulations[1] allow applicants whose visas have been refused or cancelled to apply for three specific visas, that is, skilled nominated, skilled work regional and skilled employer sponsored regional visas, in effect lifting the bar.
[1] Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021
With respect to other relevant matters, the Tribunal notes that the provision of incorrect information by the applicant as particularised above does not appear to be a simple error or omission which has occurred through inadvertence or even carelessness. The Tribunal considers that the provision of the specific employment information appears to have been a considered and deliberate action taken on behalf of the applicant to overcome the applicant’s ineligibility for the visa. The applicant’s evidence indicates that he was aware that Lee Hansol was intending to provide incorrect information.
Further in the normal course of events if the applicant had been eligible for the third working holiday visa he would have been required to return to Ireland in or about September 2021 having lived in Australia for almost three years. The applicant gave evidence that he has received offers of sponsorship to work as an electrical controls technician and electrician in Australia. The letters from his former employers Hanley Energy and CY Electrical supported this evidence. His intention was to apply for a skilled visa before he left Australia.
The applicant states that he has provided a significant level of emotional support to his sister in Melbourne and the Tribunal accepts this. However, the Tribunal notes that the applicant and his sister live in different cities of Australia and that the applicant has visited 4-5 times with his sister visiting him once. The amount of visits has been limited by pandemic restrictions. There is no evidence that the applicant provides day to day physical support to his sister and no evidence suggesting that the applicant is intending to move to Melbourne to assist his sister. The Tribunal accepts the applicant has provided limited support to his sister during a period when she was unable to return to visit family in Ireland and they were unable to visit her due to pandemic flight restrictions.
The Tribunal has considered the prescribed circumstances and other relevant matters to determine whether the applicant’s visa should be cancelled.
The Tribunal finds that the applicant would not have been entitled to a third working holiday visa if the correct information had been provided in his application form and further that incorrect information was deliberately provided on his behalf and he was aware that the incorrect information would be provided.
Further the applicant was the holder of a temporary working holiday visa and would in the normal course of events have returned, or been about to return, to Ireland having been in Australia since October 2018.
With respect to hardship the applicant has given evidence that he wanted to remain in Australia and was hoping to apply for a skilled visa. He also stated he could be separated from his girlfriend who is a working holiday visa holder and that he continues to provide support to his Australian based sister who has had a baby and has not been able to visit family in Ireland or have visits from family.
It may be that the applicant will be able to apply for a skilled visa given the recent change in the Regulations set out earlier, however, the Tribunal cannot speculate on the success or otherwise of such a possible visa application. It considers he should seek the advice of a reputable migration lawyer or agent to discuss his options.
The evidence also suggests that the applicant’s girlfriend is a working holiday visa holder who will in the normal course of events also have to return to Ireland soon once her visa ceases. There is no evidence the applicant and his girlfriend will have a prolonged separation if the applicant’s visa is cancelled.
As travel restrictions into and out of Australia ease, the applicant’s sister may be able to enjoy family visits in Ireland or have family members visit her in Australia. This will mean she will not be solely reliant on her brother for immediate family support. The evidence is that the applicant’s sister and partner are waiting for approval of their permanent residence visas. If they are granted the applicant’s sister will live permanently in Australia together with her partner without an expectation of long term continuous physical family support.
These factors taken together lead to the conclusion that the visa should be cancelled. The Tribunal accepts that if the visa is cancelled the applicant may, subject to the effect of recent changes in the Regulations, face the prospect of restrictions on his eligibility for the grant of a number of visa classes for some years. It also accepts that the applicant’s wish to remain in Australia and apply for a skilled visa may not be possible and that he will suffer considerable disappointment on this basis. The Tribunal considers the applicant was honest and straightforward with the Tribunal and showed high levels of contrition. The Tribunal has some sympathy with the applicant who now realises that the actions he has taken have had a large impact on his future life plans.
However, overall, the factors referred to above and which weigh in the applicant’s favour are outweighed by those other factors which indicate the visa should be cancelled. That is, that the applicant was involved in a deliberate act of deception in relation to his application, that he would not have been entitled to the grant of the visa but for the provision of the false information and that the provision of incorrect information was not inadvertent, negligent, or marginal in its relevance. The information was central to the applicant’s eligibility for the visa. The Tribunal has also considered that the visa is a temporary visa which was reasonably close to its expiry date at the time of cancellation and there is no evidence that the applicant will face harm or significant adverse impacts if he returns to Ireland where most of his family members live. There are no minor children who will be affected by the cancellation and the applicant’s girlfriend is also a temporary visa holder and there is no evidence of the prospect of prolonged separation.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Louise Nicholls
Senior 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.

[2021] AATA 5433

8 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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