Hannon (Migration)
[2021] AATA 4928
•9 November 2021
Hannon (Migration) [2021] AATA 4928 (9 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Allison Hannon
Ms Amelia Rose BrowneCASE NUMBER: 2108254
HOME AFFAIRS REFERENCE(S): BCC2020/2272802
MEMBER:Meena Sripathy
DATE:9 November 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 417 (Working Holiday) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Statement made on 09 November 2021 at 11:19am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in extension visa application – specified work in regional area for 3 months – verification checks – COVID-19 border closures and difficulty finding work as a couple – prevalence of COVID-19 in home country – discretion to cancel visa – work history – application lodged by third party – complications of pregnancy and baby born prematurely after extension visa granted – baby not Australian citizen by birth – no approach to department – combined hearing with partner’s on similar issues – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), (2), 116(1)(a)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(4)(d)CATCHWORDS
MIAC v Khadgi (2010) 190 FCR 248Any 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 first named applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that that the visa holder (the applicant) provided incorrect answers in her Working Holiday (Extension) visa application, thereby not complying with s101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa be cancelled. 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 purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The Tribunal notes that the second named applicant was born [in] May 2021, and was not included in the Working Holiday (Extension) visa application. Therefore, no decision about her appears to have been made, and on that basis the Tribunal has no jurisdiction with respect to the second named applicant.
The applicants appeared before the Tribunal by telephone hearing on 8 November 2021 to give evidence and present arguments. The hearing was held as a combined hearing with Mr Aiden Brown, partner of the applicant, who made a separate application for review of a cancellation of his Subclass 417 (Working Holiday) visa, and who also applied to the Tribunal for review (AAT case ref. 2108652). Both matters were constituted to the same Tribunal and the Tribunal decided to combine the hearings given they involve similar issues and the parties are a couple. Both applicants were represented by the same representative, a registered migration agent. The agent was not present at the hearing.
The Tribunal exercised its discretion to hold the hearing by telephone given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the 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 remotely. The applicants were invited to participate in a video hearing using the MS Teams platform. They indicated they were unable to participate by video and consented to proceed by telephone. On the day of the hearing the Tribunal confirmed their agreement to progress the review by telephone hearing. The Tribunal is satisfied that the applicants were 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 OF CLAIMS AND EVIDENCE
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.
Notice of intention to consider cancellation under s.107
A notice of intention to consider cancellation (NOICC) was sent to the applicant on 4 May 2021. The notice indicated that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information about the details of specified work undertaken while the holder of a first Working Holiday visa (subclass 417) in the application for a Working Holiday (Extension) (subclass 417) visa lodged on 26 August 2020.
The notice provided particulars of the allegedly incorrect information given by the applicant being the reference to employment with Pearl Recruitment Group in Newman Western Australia (postcode 6753) in the period 2 March to 5 July 2020 for 90 days; and her declaration that she had completed 3 months of specified work as the holder of a first working holiday visa.
Subsequently, the NOICC advised, the Department initiated employment verification checks with Pearl Recruitment Group, the business registered under ABN 75145084046, to verify the employment claims. On 03 September 2020, Pearl Recruitment Group contacted the Department and advised that the applicant never worked at their business from 02 March 2020 to 05 July 2020.
The delegate considered on the basis of this information that the applicant had provided incorrect answers in support of her Working Holiday (Extension) visa application and did not comply with s101(b).
In the present matter, reviewing the decision, 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 s101 (b) as follows: that the applicant provided incorrect information in the application for a Working Holiday (Extension) visa when she
· 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)?’;
· provided details of claimed employment with Pearl Recruitment Group, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
· answered ‘Yes’ to the declaration ‘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’.
On 14 May 2021 the applicants representative sought an extension of time to provide a response to the NOICC on the basis that the applicant gave birth prematurely to their baby girl [in] May 2021 and they had been back and forth to the hospital. The extension of time was not granted on the basis that there are no provisions in the Act to allow for an extension of the response period, however they were advised that any information provided prior to a decision would be considered.
On 18 May 2021 the representative submitted a bundle of documents in response to the NOICC on behalf of the applicant and Mr Browne:
·Submission – Aidan Browne & Allison Hannon
·Allison Pregnancy documents
·Discharge from the hospital
·Rental agreement
·Letter from the Hospital
·2 email trails from Lee Hansol
·Bank Statements – showing funds
·Aidan’s HGV Licence
·Aidan’s Qualification confirmation
The submission acknowledged the applicants knew of the requirement to undertake 3 months specified work to apply for a further Working Holiday visa and that their application indicated they both claimed employment with Recruitment Group between 2 March 2020 to 5 July 2020. They provided details of their employment since arrival in Australia on 10 November 2019, with Mr Browne employed by CLMU from 6 January to 6 July 2020 and Ms Hannon was employed with Mark Edward Agency from 6 December 2019 to 24 January 2020 and Uniqlo from 16 March to 13 September 2020. They referred to the circumstances of difficulties of returning to Ireland because of lockdowns in that country, that Mr Brown had already secured employment with Derrynoid Civil from 7 July 2020 and regional work was scarce if non existent due to COVID related border closures. They obtained a recommendation from a ‘friend’ to contact a person to assist them with applying for a second year visa. Email correspondence relating to this contact was provided. It is submitted that the applications were lodged unseen by the applicants and granted the same day. They had further communication with this person who arranged for the application, which is also attached. It is submitted that the applicants were initially concerned about taking this route to apply for their visas but also concerned about returning to Ireland which was reporting high level of COVID cases and therefore took this ‘regrettably stupid’ decision. Shortly after the visa grants the applicants were shocked to discover Ms Hannon was pregnant with an expected date of birth of 25 May 2021. She had some health issues during the pregnancy and had an early caesarean delivery and the baby was born prematurely [in] May 2021. It is understood that an applicant who gives birth in Australia cannot satisfy cl.417.211(4)(d). It is also understood that cancellation under s116 is also possible on the grounds of s116(1)(a) as the circumstances that permitted the grant no longer exist in respect of Ms Hannon.
The submission concedes the applicants’ understand the effect of providing incorrect answers and request consideration be taken of all the circumstances, including the global COVID 19 pandemic, ensuing concern and panic on the part of the applicants about return to their home countries which was further exacerbated in the applicants’ case once pregnant.
On 16 June (in respect of Ms Hannon, re-notified on 21 June 2021) and 1 July (Mr Browne) the delegate of the Minister made decisions to cancel the visas, having considered the applicants’ response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa.
The applicants appealed the decisions to cancel their visas to the Tribunal.
Evidence before the Tribunal
The applicants provided the following documents and evidence to the Tribunal:
·Copies of the submission sent in response to the NOICC to the Department
·Information about numbers of COVID 19 cases in Ireland
·Copies of letters and medical reports relating to Ms Hannon’s pregnancy and birth of baby, including Maternal Discharge Summary
·Work reference for Ms Hannon from Ireland dated September 2019
·Screenshots of efforts by Ms Hannon dated July 2020 answering ads for rural work
·Screenshot of a follow up appointment at Sydney Children’s Hospital for baby on 21 March 2022.
At the hearing the applicants provided evidence about their current circumstances, background and the circumstances that gave rise to the non compliance.
The confirmed that they are presently living together with their baby in Coogee, NSW. Mr Brown is working full time as a diesel mechanic with Derrynoid Civil where he has been employed since July 2020. Ms Hannon is caring for their child. She last worked in around March or April 2021 and stopped due to complications relating to the impending birth of the baby. In response to questions about family in Australia, Mr Browne said he has a sister who has been here for the last two years or so, also on a temporary work visa. Ms Hannon has no family here. In Ireland, they both have parents and siblings among other extended relatives, all of whom live in Cork, where the applicants were living (separately) prior to coming to Australia.
The applicants arrived in Australia in November 2019 on Working Holiday visas. Their intention was to get work and stay for a while, with the possibility of finding an employer to sponsor them for a visa. Mr Brown obtained work from January to July 2020 as a diesel mechanic with CLMU in western Sydney, and then from July 2020 with Derrynoid Civil where he continues to be employed to date. Ms Hannon worked with Marc Edwards Agency from December to January 2020 and Uniqlo for 6 months, and again another 6 months when her visa was granted. The Tribunal asked if they were aware of the requirement to undertake specified work in regional Australia to qualify for a further working holiday visa. They responded that they were aware of this requirement but did not, and have not, obtained any such work in regional Australia. They explained that they did try to get some farm work in July 2020 but encountered difficulties for several reasons, including relating to COVID 19 and also because they were looking for work together as a couple. Ms Hannon referred to the evidence of their efforts to find farm work submitted to the Department. The Tribunal asked how they came to apply for the second working holiday visa. Mr Browne said they heard about Lee Hansol from a friend and decided to use his services. They were in a state of panic because of the emerging situation of the COVID pandemic in Ireland and Australia and they thought they were better off staying here. The Tribunal asked if they considered approaching the Department to discuss their situation. They said it never occurred to them to do that and they did not.
The Tribunal discussed the allegation of non compliance with s101(b) of the Act made in the notice sent by the Department dated 4 May 2021 (NOICC). They confirmed they received the NOICC and responded to it. They conceded that they provided incorrect information as detailed in the notice. They did not do the specified work indicated in their application and knowingly used the services of Lee Hansol to submit the application.
The Tribunal discussed the matters prescribed in r.2.41. Details of relevant evidence they gave is included in the discussion below.
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 s101 and s103 of the Act as set out above.
The applicant acknowledged in his response to the NOICC and evidence to the Tribunal that incorrect information about undertaking specified work was provided in his Working Holiday extension application. On the basis of the evidence of the verification undertaken by the Department with Pearl Recruitment Group, specified in the NOICC, and the applicant’s acknowledgement and concession of the incorrect information, 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 Tribunal below discusses the prescribed circumstances set out in r.2.41 of the Regulations, taking into consideration the submissions and evidence put forward on behalf of the applicants.
· the correct information
The applicants conceded that they were not employed by Pearl Recruitment Group as stated in the application and the information about this employment is incorrect. The correct information is that they did not undertake specified work in regional Australia.
The Tribunal finds this weighs in favour of cancellation in this matter.
· the content of the genuine document (if any)
There is no allegation relating to a genuine document. This is not a relevant consideration in this matter.
·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 visa applicants were required to meet the criterion relating to specified work in regional Australia for a period of three months. The visa applicants confirmed at hearing that they never undertook specified work in regional Australia during their first Working Holiday visa. They willingly used the services of Lee Hansol to lodge their application with this knowledge. The incorrect information was relied on by the delegate to grant them the visa. If the correct information was provided, the applicant would not have been able to meet this criterion for the visa and the applicant would have been refused.
The Tribunal finds that this is a significant matter and weighs in favour of cancellation in this matter.
· the circumstances in which the non-compliance occurred
The applicants submit that the developing and dire circumstances of the COVID 19 pandemic in Ireland and Australia caused them to panic and feel anxious about their future. It also contributed to the difficulties they experienced trying to find appropriate farm work in this period. They did try and find farm work, but it was also difficult because they were a couple and could not find a placement together. Soon after the visa grant they found out that Ms. Hannon was pregnant. Initially they planned to return home but due to complications during the pregnancy they decided to stay in Australia. The applicants explained that the situation in this period in Ireland was very serious, and they would have had difficulties going to hospital for antenatal care due to the COVID 19 pandemic. It did not occur to the applicants to discuss their situation with the Department. They were in this period focussed on the health of Ms Hannon and the baby. She was in and out of hospital several times, and in May 2021, when the baby was not growing as expected, she was delivered early, arriving [in] May 2021.
The Tribunal has considered the applicant’s submissions and circumstances of the uncertainties created by the global COVID 19 pandemic and domestic state border restrictions around this time. It accepts that these circumstances may have caused some unease and uncertainty for the applicants, and that a number of Australian states (and the Northern Territory) which comprise a large part of ‘regional Australia’ for the purposes of this criterion, imposed border restrictions in March 2020.[1] However, it also takes into consideration that the applicants did not seek to approach the Department to obtain information about their options but instead decided to proceed with pursuing an extension through the contact given to them, in full knowledge that they did not meet the specified work requirement.
[1]COVID-19: a chronology of state and territory government announcements (up until 30 June 2020) type="1">
The Tribunal has also considered the submission that the news of the pregnancy and early health issues affected their decision making in this period. The evidence indicates that they realised Ms Hannon was pregnant in or around August or September, after the grant of the visa. The applicant told the Tribunal that they initially planned to return home but then decided to stay here because of complications that arose during the pregnancy and concerns about the state of health care due to the COVID 19 situation in Ireland. She told the Tribunal that she attended hospital a few times during the pregnancy, and it notes the evidence of an attendance at the Outpatients Department in November 2020 in support of this.
On balance, the Tribunal is prepared to give the circumstances in which the non compliance occurred some weight against cancellation of the visa, although it notes that the circumstances of the pregnancy occurred after the non compliance and the failure to approach the Department for advice also detracts from significantly from the weight it is prepared to give to this factor.
· the present circumstances of the visa holder
The applicants submit their baby was born early in May 2021. She is vulnerable due to her size (being on the 1st percentile for height and weight) and requires regular monitoring. She is next due for an appointment in March 2022. They confirmed she is presently healthy apart from her size and weight and has not been diagnosed with any health conditions.
Mr Browne is presently working full time as a diesel mechanic and submits that his skills are in short supply in Australia. He would like to be able to be sponsored for a skilled visa here.
The Tribunal discussed with the applicants why they cannot now return home to Ireland where they would presumably be able to access on going health care for their child and have substantially more family support. It noted that independent information indicates Ireland has a high vaccination rate of over 88% of the eligible population[2] and there are no travel restrictions to enter the country.[3] In response they stated that despite the vaccination rate there are over 4000 COVID cases a day so they remain concerned about their safety, in particular given their baby is not vaccinated. They also pointed out they are still waiting for a passport for their daughter, which has been applied for but not issued. Ms Hannon indicated that while they have family in Ireland, their circumstances are strained. Her father is in his 80’s and she would have more responsibilities if she returned there. They have no home to return to as neither of their families can accommodate them all together at this time, whereas here they have a home, employment and health care for their baby.
[2] Vaccinations | Ireland's COVID19 Data Hub (arcgis.com) 88.84% above age 12 fully vaccinated as at 4 Nov 2021; Covid-19: 90% of adults in Republic of Ireland now fully vaccinated - BBC News
[3] Traveling to Ireland during COVID – as long as fully vaccinated , no need to quarantine or have a COVID test Travelling to Ireland during COVID-19 (citizensinformation.ie)
The Tribunal has considered the above. It accepts that they have a young baby and are understandably concerned about her health and safety in the context of the COVID situation in their home country. However, the vaccination rate in Ireland is high, and while it acknowledges their concerns about high case numbers there, there is no evidence before the Tribunal to indicate that they, being fully vaccinated, are at significant risk for this reason. It accepts that here they have stable accommodation, Mr Browne has full time employment and they seek continuity in the health care for their new born baby. However, it also notes that the applicants was granted the extension on their visas, enabling Mr Browne’s continued employment and therefore their stable accommodation due to the incorrect information provided.
On balance, the Tribunal gives this factor some, but not significant, weight against cancellation of the 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
The applicants conceded the non compliance in the response to the NOICC and there is no information before the Tribunal to indicate that subsequent to the NOICC being issued, the visa holder has not complied with any of his obligations under subdivision C of the Act.
This factor weighs against cancellation of the visa.
· any other instances of non-compliance by the visa holder known to the Minister
The applicants told the Tribunal no other allegations of non compliance have been made and there is no adverse information before the Tribunal to indicate other known instances of non compliance.
This factor weighs against cancellation of the visa.
·the time that has elapsed since the non-compliance
The Tribunal observes the visa was cancelled on 16 June 2021, having been granted on 26 August 2020 and therefore not a significant amount of time has elapsed since the non compliance.
The Tribunal finds this factor does not weigh in favour or against cancellation, and considers it neutrally.
·any breaches of the law since the non-compliance and the seriousness of those breaches
The applicants state there are no other breaches of the law against them and there is no information before the Tribunal to indicate the visa holder has breached any laws since the non-compliance.
The Tribunal gives this some weight against cancellation in this matter.
·any contribution made by the holder to the community.
The applicant made no submissions of contributions she has made to the community.
No weight is afforded for or against cancellation of the visa in relation to this factor.
Other matters
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.
In this context , the Tribunal has considered whether there would be any consequential cancellations under s.140 and/or the best interests of any children whose interests would be affected by cancellation, or consequential cancellation The Tribunal notes the birth of the applicant’s child in Australia [in] May 2021. As the child of two temporary resident parents, she is not an Australian citizen by birth. As she was not yet born, the child was not included in the Working Holiday (Subclass 417) application made in August 2020, however the Tribunal accepts the decision to cancel the visas of her parents would affect her. In this context, the Tribunal considers she is likely to remain with her parents and would be eligible for whatever visa her parents obtain to remain in Australia until they depart. The applicants told the Tribunal they are still waiting for a passport for her, which they applied for but is yet to be issued. The applicants also submitted their concern about her vulnerability to COVID 19 if they return to Ireland given the high case numbers there and being unvaccinated. The Tribunal takes this into consideration but notes that it is also a concern that exists for her regardless of whether she is in Australia or Ireland. Submissions have also been made that she is subject to ongoing paediatric monitoring since her birth in Australia due to her size and weight. There is no reason she would not be able to access similar paediatric care in Ireland upon return. The Tribunal considers that the best interests of the child are served by her being with her parents regardless of which country that may be in. If the visa is cancelled she may have to return to Ireland with her parents where she also has extended relatives. No information or evidence is before the Tribunal to indicate that the best interests of the child can only be served by the visa not being cancelled.
The Tribunal has considered the legal consequences of cancelling the visa, which will lead the applicant to become an unlawful non citizen and potentially subject to detention and removal unless granted a Bridging visa. The operation of s 48 of the Act would limit the kind of visas the applicant can apply for in Australia and they will also be affected by PIC 4013 which may prevent them from being granted certain kinds of visas for three years since the date of cancellation.
These consequences of the cancellation are significant and, in the circumstances the Tribunal considers it weighs against cancelling the visa.
The Tribunal asked the applicants at hearing if there are any other relevant matters, including hardship to them or any family members that they wish it to consider. Mr Browne submitted that he believes his skills are in demand in Australia and they would like to continue to remain living here. They provided no further submissions.
Having carefully considered all of the above, the Tribunal concludes the factors in support of cancelling the visa in this case on balance outweigh the factors that weigh against cancellation. In its assessment, the Tribunal places significant weight on the fact that the visa would not have been granted if the correct information had been provided, and the applicants’ knowledge of this when they engaged the agent to lodge the visa applications. While the Tribunal considered the submissions about the circumstances in which the non compliance occurred, namely the uncertainties of the unfolding COVID 19 pandemic, border closures and travel restrictions, their claims that they tried, unsuccessfully, to obtain regional work and the subsequent situation of the pregnancy, birth of their baby and related complications, it gives these less weight in the circumstances that they made no attempt to approach the Department to discuss their situation and ask if there were any other options or avenues available. While there is no information before it of any other non compliance or other breaches of the law, being factors that weigh against cancellation of the visa, and the serious consequences of cancellation, ultimately, after carefully weighing all of the above, the Tribunal considers the factors in favour of cancelling in this case outweigh those against it and the Tribunal concludes the visa should be cancelled.
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 first named applicant’s Subclass 417 (Working Holiday) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Meena Sripathy
MemberATTACHMENT – 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.
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Procedural Fairness
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