Haymes (Migration) - [2020] AATA 4854

Haymes (Migration) [2020] AATA 4854 (26 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr William L Haymes
CASE NUMBER:  2002479
DIBP REFERENCE(S):  BCC2019/5316446
MEMBER:Antoinette Younes
DATE:26 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 26 August 2020 at 1:21pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – incorrect information in visa application – health condition – error on the agent’s part – sufficiency of notification – consideration of discretion – grant of visa not based on incorrect information – circumstances giving rise to non-compliance – conduct of the former agent – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 98, 99, 101, 105, 107, 108, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
Brar v MIAC [2012] FMCA 519
Gido-Christian v MIAC [2007] FMCA 825
MIAC v Brar (2012) 201 FCR 240
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 Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 20 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses, namely the applicant’s partner and employer.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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.
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 of the Act.
Section 101 provides that:
Visa 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.
In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record. In the course of the hearing, the Tribunal referred to the relevant parts of the decision record, including:
·On 20 June 2016, the applicant was nominated by Estee Lauder Pty Ltd (the sponsor) in the nominated occupation of Information and Organisation Professionals nec. On 10 May 2016, the applicant lodged an online application for a Temporary Work (subclass 457) visa. On page 4 of that application under the Health declaration, the applicant answered No to the following question:
During your proposed visit to Australia, do you, or any other person included in this application, expect to incur medical costs, or require treatment or medical follow-up for:
–blood disorder
–cancer
–heart disease
–hepatitis B or C and/or liver disease
–HIV infection, including AIDS
–kidney disease, including dialysis
–mental illness
–pregnancy
–respiratory disease that has required hospital admission or oxygen therapy
–other.
On pages 10 and 11 of the application form, under the heading Declaration for all applicants, the applicant acknowledged the following matters when he declared Yes:
I declare that:
·The information provided in this form is complete, correct and up-to-date.
·I understand that if any fraudulent documents or false or misleading information has been provided with this application or if I fail to satisfy the Minister of my identity, my application may be refused and I, and any member of my family unit, may become unable to be granted a visa for a specified period of time.
·I understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
·I and any other applicants included in the application has made adequate arrangements for health insurance during the period of my/our intended stay in Australia and I will provide a letter from my insurer confirming this. For more information and a copy of the certification letter click here.
·I will abide by the conditions of the visa. For more information on the conditions of the visa click here.
On the basis of the information provided in the application for the subclass 457 visa, including without the requirement to undertake a health examination, the applicant was granted the visa. However, when the applicant lodged an application for an Employer Nomination Scheme (ENS) (subclass 186) visa, it became evident that in 2013 the applicant had been diagnosed with [Medical Condition 1] as he had declared that information to the Medical Officer of the Commonwealth (MOC) as part of the application. The MOC noted that the applicant had advised that he was taking [Medication 1] as his current [treatment] concerning [Medical Condition 1]. On revelation of this information, the Department sent to the applicant a natural justice letter seeking his comment that potentially he had provided false and misleading information when applying for the subclass 457 visa. On 21 October 2019, the applicant withdrew the application for the subclass 186 visa.
Notice of intention to consider cancellation (NOITCC) and response
On 3 December 2019, the Department sent to the applicant a NOITCC to which the applicant responded on 18 December 2019. The applicant provided a Statutory Declaration, signed on 17 December 2019 in which he noted the following matters:
·In 2016, he was offered a position to work in Australia with Estée Lauder, which is the parent company of MAC cosmetics. He engaged a law firm in Australia who prepared the application for the subclass 457 visa. As part of the process, he completed a questionnaire in which he disclosed that he has a medical condition, but the law firm did not include that in the application. He provided evidence that he provided this information to the law firm that neglected to include it when they lodge the application for the visa. He did not receive a draft copy of the application and it appears that the error was due to the law firm that did not include the information.
·In 2019, he initiated the process of applying for the subclass 186 and it was then when he became aware that the details of his medical condition were not disclosed in the application for the subclass 457. He contacted a different law firm and they provided a fee structure that included submissions concerning Public Interest Criterion (PIC) 4020. He provided all the correct information to that new firm. He lodged the subclass 186 application in June 2019, and he was required to take an examination during which he disclosed to the MOC that he had been diagnosed with [Medical Condition 1] in 2013. In October 2019, he was made redundant by Estée Lauder and he was advised by the then agent to withdraw the subclass 186 application, which he did.
·He is confident that had the Department known of his [Medical Condition 1] at the time of application for the subclass 457 visa, the visa would still have been granted. He has met all his health costs associated with the [Medical Condition 1] condition and he has paid all health insurance premiums. He has complied with his visa conditions and he has found a new potential position.
·In case of cancellation of his visa, his life would be impacted. He considers Australia home and he has established a wide group of friends. He volunteers at various institutions and he also makes donations.
In support of the response, the applicant provided various documents including, submissions, a letter from the firm that completed the application for the subclass 457 confirming that a former employee had overlooked the applicant’s responses to the firm’s questionnaire, a letter from Estée Lauder confirming that the applicant had been made redundant effective from 31 October 2019, correspondence between the applicant and the law firm acting in the subclass 186 application referring, amongst other things to the cost of preparing submissions relating to PIC 4020, a letter from a nurse practitioner in New York dated 10 December 2019 advising that the applicant referred to his relocation to Australia and that his representative could contact the health practitioner in relation to his health status, and emails from a friend (who also gave evidence in the course of the hearing noting that Estée Lauder had supported his subclass 457 application with the full knowledge that he [had Medical Condition 1], health insurance statements, letters of support from an Australian Health Practitioner.
In the course of the hearing, the applicant confirmed that he agrees that incorrect information had been provided in the application for the subclass 457 visa. He explained to the Tribunal that he had completed the questionnaire of the firm that completed the application for the subclass 457 visa and clearly pointing out that he has a health condition. The applicant acknowledged that he should have been more prudent in ensuring that the information provided by the firm was correct and he apologised for his imprudence. He understood that although he did not complete the application personally, he nevertheless remains responsible for the information provided. He told the Tribunal that he takes responsibility for the incorrect information; he said he was “sorry” that he did not conduct due diligence and he should not have assumed that the correct information would be transposed. He told the Tribunal that his interaction with the agent who completed the application for the subclass 457 was done by email but he acknowledged that he should have been more “proactive”.
In submissions to the Tribunal dated 19 August 2020, the representative provided substantial submissions outlining the applicant’s background and the circumstances that led to the cancellation of the visa. The representative however raised concerns about the s.107 notice submitting that the delegate did not reach a sufficient state of satisfaction essentially on the basis that the provision of incorrect information had an element of “purposive falsity” under the law and as the applicant did not intentionally provide the incorrect information.
Section 107 and sufficiency of Notice
Section 107 is enlivened if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Consequently, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions. It is not sufficient that the delegate considers that the visa holder ‘may have’ provided incorrect information.[1] However, there is no requirement that the notice must contain an assertion as to the requisite state of mind.[2]
[1] Zhong v MIAC (2008) 171 FCR 444 at [77].
[2] Zhong v MIAC (2008) 171 FCR 444 at [75].
Whether the Minister or delegate had reached the requisite state of mind is a question of fact to be determined on the basis of the evidence, which could include the terms of the s.107 notice, the information referred to in the notice, other information or communications recorded in the Departmental file, and Departmental guidelines for primary decision makers.[3]
[3] For example, PAM3 – Migration Act - –visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) –s109 Cancellation– Issuing a s107 notice (re-issue date 21/8/16).
The s.107 notice is a critical step in the cancellation process as it provides the visa holder with an opportunity to show that the grounds for cancellation do not exist, or, if they do exist, to put forward reasons why the discretion to cancel should not be exercised.
The sufficiency of notification is to be tested by reference to the statutory purpose. That is, it must be sufficient to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.[4] For example, if both paragraphs of s.101 are to be relied on, the notice would need to give particulars of the facts and circumstances which gave rise to the possible breach of each of the paragraphs. It would not be enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular provision.[5] Simply identifying the statutory provision not complied with would not be an adequate provision of particulars for s.107(1)(a).[6]
[4] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25]. In that case the Court was considering the requirements of s.119 notifications for the purposes of Subdivision D cancellation but the principle would be equally applicable to s.107 notifications. The decision was cited with approval by the Federal Court in MIAC v Brar (2012) 201 FCR 240: see [57]-[58], a decision that was concerned with a s.107 notification.
[5] Zhong v MIAC (2008) 171 FCR 444 at [80].
[6] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [43]-[44].
It may not always be necessary to identify with precision particular answers that are incorrect (Gido-Christian v MIAC[7]). Moreover, the fact that allegations in a s.107 notice may be factually incorrect will not invalidate the notice (Brar v MIAC[8]). A minor defect in the content of a s.107 notification which does not go to the substance of the allegations or affect the visa holder’s capacity to respond to the allegations will not necessarily preclude valid cancellation under s.109. The Full Federal Court in MIAC v Brar[9] confirmed that a purposive approach must be taken, so that an error which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegation of non-compliance will not deprive a decision maker of jurisdiction under ss.108 and 109.
[7] Gido-Christian v MIAC [2007] FMCA 825 (McInnis FM, 31 May 2007) at [87]. See also Burton v MIAC (2005) 149 FCR 20; but contrast Zhong v MIAC (2008) 171 FCR 444.
[8] Brar v MIAC [2012] FMCA 519 (Driver FM, 31 July 2012) at [71]. See also Kang v MIAC [2013] FCA 711 (North J, 22 May 2013).
[9] (2012) 201 FCR 240, overturning Brar v MIAC [2011] FMCA 435 (Driver FM, 28 July 2011).
In the present case, the non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act. Having considered the s.107 in this case the Tribunal is satisfied that the notice is valid. The Tribunal is satisfied that the identified particulars clearly state the basis on which the non-compliance is alleged to have occurred and that it allowed the applicant a real opportunity to understand and to answer the allegation. Given those findings, it is not open to the Tribunal to set aside the delegate’s decision and substitute a new decision to the effect that the power to cancel the visa under s.109 was not enlivened.
On the evidence, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice, in that the applicant provided incorrect information in relation to relevant questions in the subclass 457 application relating to his health, namely that he [had Medical Condition 1]. The Tribunal has taken into account the applicant’s evidence and submissions that this was due to an error of the agent and on the evidence the Tribunal accepts that the applicant did not intentionally provide the incorrect information and that it was the error of the former agent who completed the application for the subclass 457 visa. The Tribunal has given significant weight to the letter from the law firm that acted for the applicant, confirming the error.
However pursuant to ss.98 and 99 of the Act, the applicant remains to be responsible. Sections 98 and 99 provide:
98 Completion 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.
99 Information 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.
Having found that there was non-compliance by the applicant in the way described in the s.107 notice, the Tribunal must consider the discretionary power whether the visa should be cancelled.
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. Briefly, they are:
· the correct information

On 10 May 2016, the applicant lodged an online application for the subclass 457 visa. On page 4 of that application under the Health declaration, the applicant answered No to the question “During your proposed visit to Australia, do you, or any other person included in this application, expect to incur medical costs, or require treatment or medical follow-up for… [Medical Condition 1]…”. That answer was incorrect as the applicant had been diagnosed with [Medical Condition 1] in 2013.
The Tribunal has accepted that the applicant did not intentionally provide the incorrect information and that the provision of that information was due to the error of the agent who lodged the application. In submissions to the Tribunal, the representative advanced an argument that the former agent’s conduct amounted to fraud. In the course of the hearing, the Tribunal pointed out that this was a serious allegation to make and the Tribunal would not likely reach a conclusion that fraud had been committed based on the available evidence. In subsequent submissions, those allegations were not pressed.
The provision of incorrect information is serious and has the potential of undermining Australia’s migration laws. Sections 98 and 99 contemplate that even in the case of a visa applicant not completing the application personally, information provided in their application is taken to have been provided by the applicant. Those sections reflect the seriousness of the provision of incorrect information intended by the legislature.
The Tribunal gives this aspect weight in favour of cancellation.
·the content of the genuine document (if any)
There is no issue concerning a genuine document.
The Tribunal gives this aspect neutral weight.
·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
In submissions to the Tribunal, it was argued that the applicant would have met PIC 4006A. The applicant is [healthy], fit and well according to the applicant’s physician but even if he had failed, his employer would have indemnified his expenses with a waiver on various bases.
The Tribunal is satisfied that had the correct information been disclosed, the applicant would have been required to undergo required medical examinations. The Tribunal can only speculate as to whether the applicant would have met the relevant health criterion (PIC 4006A), however, he would have had the opportunity to make submissions and get the support of his employer. The Tribunal is satisfied that it is plausible that the applicant would have met the relevant criterion. The Tribunal gives regard to the evidence of the witness who was successfully sponsored for a subclass 457 by the same entity and while he [had Medical Condition 1].
Although the fact that the applicant’s [Medical Condition 1 diagnosis] was not disclosed in the application for the subclass 457 visa meant that he did not undergo the required heath examinations, the Tribunal is not satisfied on the evidence that the decision to grant the visa was based, wholly or partly, on incorrect information. The Tribunal is satisfied that it is plausible that the applicant would have met the relevant heath criterion and would have been granted the visa.
The Tribunal gives this aspect weight in favour of the applicant.
·the circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant’s [Medical Condition 1 diagnosis] was not disclosed in the visa application, in breach of s.101(b) of the Act. In submissions to the Tribunal, the representative provided an outline of the applicant’s background and the circumstances that led to the cancellation of the visa. In essence, the submissions focussed on the conduct of the former agent who completed the subclass 457 application. The applicant has acknowledged his imprudence and has expressed remorse for not being more careful and in trusting the agent without checking the form. The Tribunal, and for the reasons stated has accepted those explanations. The conduct of the former agent in this case cannot be ignored. The agent was paid a fee to provide professional services in a competent manner with the legitimate expectation of due diligence and acting in the best interest of the applicant.
In those circumstances, the Tribunal is of the view that it would be harsh not to give this aspect weight against cancellation.
·the present circumstances of the visa holder
The applicant is currently the holder of a Bridging Visa E (BVE) granted on 11 February 2020 with work rights. He held his position with the sponsor until 2 September 2019. He subsequently found a new sponsor and a new nomination was approved on 5 March 2020. However due to COVID-19, the position with this sponsor became untenable. Currently, he is looking for work. The Tribunal observes that the applicant is a retail sales executive with a career spanning over 18 years with an international company that had sponsored him but due to a restructure, he was made redundant.
The applicant is in a relationship with an Australian citizen who gave evidence during the hearing supporting the applicant. The couple has registered their relationship and there are plans to lodge a partner visa application.
The Tribunal is satisfied that the applicant’s present circumstances warrant weight to be given in his favour.
·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 applicant responded to the NOITCC and engaged fully with the cancellation process.
The Tribunal gives this aspect weight in the applicant’s favour.
·any other instances of non-compliance by the visa holder known to the Minister
In submissions to the Tribunal, it was argued, amongst other things that there was a series of legal advice that explains the applicant’s lack of actual notification to the Department of the incorrect information following the applicant’s discovery in February 2019. It was contended that the applicant’s conduct “at all times from the discovery of the incorrect information was directed on the basis of legal advice”. There is corroborative evidence before the Tribunal from the relevant law firms supporting those submissions.
The representative submitted that s.105 denotes a consideration of reasonableness and that the applicant never sought to hide the details about his [Medical Condition 1] – he followed the legal advice he was given.
The Tribunal is persuaded by those submissions and in those circumstances gives this aspect neutral weight.
·the time that has elapsed since the non-compliance
The non-compliance occurred in June 2016 on lodgement of the subclass 457 visa application. The Tribunal does not consider this timeframe to be significant warranting favourable consideration. The applicant considers Australia home and he has an Australian citizen partner.
The Tribunal gives this aspect some weight in the applicant’s favour.
·any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of any breaches of the law.
The Tribunal gives this aspect neutral weight.
·any contribution made by the holder to the community.
The applicant has been a volunteer at various organisations. He contributes by offering his time and skills. He also makes donations. There is corroborative evidence referring to his charitable nature and support for equal rights for the LGBT community.
The Tribunal gives this aspect weight in favour of the applicant.
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 cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. He could however make travel arrangements and voluntarily depart Australia. The applicant would also be impacted by s.48 of the Act which means that he may face difficulties in applying in Australia for any further visas.
The applicant could apply for an Australian visa offshore and any such application would be assessed on its merits, including any application of relevant Public Interest Criteria (e.g.4013 and 4014).
The Tribunal gives this aspect limited weight in the applicant’s favour.
·whether there would be consequential cancellations under s.140
There is no evidence of any consequential cancellation.
The Tribunal gives this aspect neutral weight.
·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
There is no information before the Tribunal to suggest that any children would be impacted or that Australia would be in breach of any of its non-refoulement obligations in case of cancellation.
The Tribunal gives this aspect neutral weight.
·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
The applicant came to Australia to work and he did. The Tribunal is mindful that the cancellation of the visa would cause a degree of financial, psychological, and emotional hardship to the applicant, especially as he has a partner in Australia. In submissions, COVID-19 was raised in that the USA is one of the most impacted nations in the world. The representative raised the applicant’s skills and expertise as a potential benefit to the Australian community
The Tribunal gives this consideration weight in the applicant’s favour.
CONCLUDING REMARKS
The Tribunal has carefully considered the material before it individually and cumulatively. The Tribunal is satisfied that the totality of the considerations weighs heavily in favour of the applicant, particularly the fact that the agent who acted in the subclass 457 visa application had made an error by failing to disclose in the application information about the applicant’s [Medical Condition 1].
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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Antoinette Younes

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.