Jordan (Migration)

Jordan (Migration) [2022] AATA 3136 (2 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lee Patrick Jordan
REPRESENTATIVE:  Ms Edwina Marie King (MARN: 1803481)
CASE NUMBER:  2119008
HOME AFFAIRS REFERENCE(S):          BCC2020/2727654
MEMBER:Mark Bishop
DATE:2 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 02 August 2022 at 3:04pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – lockdown travel restrictions – impact of the COVID19 pandemic – limited specified work completed – employer’s offer of sponsorship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 359
Migration Regulations 1994, Schedule 2 cl 417.211; Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information in the Working Holiday (Extension) visa application as she did not work at the named employer. 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 2 August 2022 to give evidence and present arguments. The applicant provided a copy of the decision record to the Tribunal. The solicitor for the applicant also gave evidence to the Tribunal.
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.
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 the following section of the Act:
Section 101 Visa applications to be correct:
·A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.
·The applicant provided employer detail, employer business and address, work conditions and period of employment.
·The Department initiated employment verification checks with Lincara Pty ltd, the business registered under ABN 56831787511, to verify the visa holder’s employment claims. On 19 November 2020, Lincara Pty ltd contacted the Department and advised that the visa holder had never worked at the business, for 90 days, from 16 March 2020 to 05 July 2020.
The department made a finding the information provided by the applicant was incorrect, as verification checks undertaken by the department established the visa holder did not undertake three months specified work in regional Australia.
For these reasons, the Tribunal finds that there was non-compliance with s 101 of the Act by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
In response to the NOICC, the visa holder confirmed he provided incorrect answers on his second working holiday visa application and that he never undertook three months of work at Lincara Pty ltd. The visa holder states that he did attempt to undertake some farm work at Barokaville Farming Pty Ltd, however the farm was impacted by the Covid-19 pandemic and he ran out of work after completing 26 days. The visa holder states he received assistance from a third party, a person by the name of Lee Hansell, who provided the incorrect answers on his visa application. The Tribunal considers that engaging a third party does not excuse the visa holder from the requirement to provide correct information (see s100 of the Act as outlined in the delegate’s decision). The Tribunal finds the visa holder’s statement in the Working Holiday (Extension) visa application, of having worked for Lincara Pty ltd for a period of three months, therefore meets the definition of an incorrect answer as described by section 101(b).
In response giving reasons as to why the visa should not be cancelled the applicant advised in considerable detail as summarised by the delegate as follows:
·Since arriving in Australia, he has had every intention of completing his regional farm work.
·In April 2020, he was successful in obtaining a position in Walgett where he started work at Barokaville Farming Pty Ltd, as they had promised they had a lot of work for him. He departed Sydney, and completed two weeks of quarantine. His job there was to drive a tractor and assist with the day to day operations. However, on 10 May 2020, the farm was impacted by Covid-19 and he ran out of work after 26 days.
·Once he returned back to Sydney, he had 62 days remaining for his regional farm work and he continued to look for suitable employment, however due to the effects of the Covid-19 pandemic he struggled to find work. Even if he was offered a job, he would be required to travel and quarantine for two weeks. With such a heavy cost, he was unable to take the risk again.
·The need for him to complete 62 days of his regional farm work weighed heavily on his mind. Therefore, a co-worker provided him with a contact through another friend who could assist him with his situation. On 25 August 2020, he contacted a person named Lee Hansel, who advised him he was an expert and had been assisting with second working holiday visas since 2009. At the time of engaging with Lee Hansel, he was unaware he was not a registered professional and was misleading him.
·Once he did become aware that Lee Hansel was not a professional, he did not know another Migration agent to assist him. He was also unaware of the “408 Covid visa” and that this could have been a valid option for him to remain in Australia, having not completed 90 days of regional work.
·He is now based in Brisbane and continues to work for a company named Zoomwave as a form work Carpenter underground. This company is currently in the process of lodging a temporary skilled sponsorship as they want to continue his employment to complete infrastructure projects now and in the future. This nomination process will cost approximately $7530 without agent fees. He holds a genuine position with this company and given the working conditions, it’s hard to fill these positions.
·He continues to work on critical infrastructure projects around Australia. He is currently on the Cross River Rail where he is part of a team that installs 12 metre of tunnels every shift.
·He is currently on a salary of $115,000 per year. However, including penalties and night shift allowances, his salary is closer to $193,584. Therefore, if his visa is cancelled, the Australian government will miss out on approximately $60,000 of tax at a time of economic recovery and massive debts. Also, the Cross River rail project is not expected to be completed until 2024, this could also see the Australian government miss out on $240,000 of tax in the coming years. The Department must take into consideration these other factors, not just the breach of visa conditions. Cancellation would also affect his current employer as he is a valuable employee.
·He has been employed as a carpenter and has 8 years’ experience. His skills are in high demand in Australia, and will continue to be needed into the future. If he is allowed to remain in Australia, he will have 42 years left of his career so he can retire at 70 years old. He is young, skilled and has demonstrated he is keen to work.
·If the department decides to cancel his visa, he requests for the Department to wait until his 482 visa application is lodged.
·He hopes the Department can see that he did make a genuine efforts to complete his farm work, however it was just unlucky circumstances which led to these series of events. If Barokaville Farming had not run out of work, he would have continued working there.
In addition to the above statement the applicant provided considerable supporting documentation as to email correspondence, payslips, confirmation of employment detail and various forms.
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 Tribunal is also required to consider both the prescribed matters, where relevant or indicate where not relevant; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:
·whether there would be consequential cancellations under s 140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
On 14 June 2022 the applicant provided a 24 paragraph letter on the letterhead of King Corporate Migration that outlined background, reasons not to cancel, unique skills [as a carpenter] in key sector and offer of sponsorship, mandatory legal consequences to a cancellation decision and the best interests of the Australian business and community. The applicant invited the Tribunal to issue a decision on the papers. In reviewing this letter it was clear the applicant was critical of prior decision makers (see paragraph 14) and outlined in detail the serious consequences of the prior adverse decision (see paragraphs 16, 17 and 20). As the matter before the Tribunal was serious with potentially adverse significant consequences the Tribunal wished to hear from the applicant.
At approximately 7.30pm on the evening prior to the hearing the applicant provided additional documentation as follows:
·Document headed ‘Patient Medication List’ showing a Ms Martina Jordan was prescribed a Symbicort turbohaler with instructions to inhale puffs twice daily as directed.
·Letter dated 21 September 2021 from Steven Doyle Formworks stating that the applicant was employed from June 2016 until January 2020 and carried out a list of duties associated with an apprenticeship in carpentry.
·Undated receipts showing the applicant donated 4500 to Suicide Prevention Australia Ltd.
·Undated letter on blank paper stating the applicant was an underage coach at Fastnet Rovers Football Club and a man of sound character who gave of his time to the local club.
·Duplicate submissions previously provided inclusive of a statutory declaration in 17 paragraphs that addressed the following:
oCovid-19 hit in April 2020 so he relocated to Walgett NSW and completed 2 weeks work at Barokaville Farm. On 10 May 2020 he was let go. It was impossible to find work.
oIn hindsight he knows there is a 408 Covid visa. It was brought in in April 2020. He could not return home. He was diagnosed with anxiety.
oIt was his choice to contact a Mr Hansol. This action was out of character for him.
oHis employer offered sponsorship. He takes responsibility for his actions. He has a lot to offer the community. Approximately 18 months have elapsed since the non-compliance. He wishes to develop a life in Australia.
oHe acknowledges the provision of false information is a serious matter. He has learned his lesson.
The Tribunal now turns to consider the above as follows:
(a) the correct information
The correct information as set out in the decision record is that the department initiated employment verification checks with Lincara Pty Ltd, the business registered under ABN 56831787511, to verify the visa holder’s employment claims. On 19 November 2020, Lincara Pty Ltd contacted the Department and advised that the visa holder had never worked at the business, for 90 days, from 16 March 2020 to 05 July 2020.
The Tribunal gives this aspect significant weight in favour of cancelling the visa.
(b) the content of the genuine document (if any)
No genuine document is being considered.
(c) 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 holder previously held a first Working Holiday (subclass 417) visa granted on 27 May 2019. In assessing the Working Holiday (Extension) visa application, the delegate determined conditions set out in r.417.211(5) were not met. These conditions related to employment in regional Australia for set periods.
The visa holder’s employment details related to his regional work experience, was central to the grant of his Working Holiday (Extension) visa. As the Tribunal has determined the visa holder provided incorrect information regarding his employment at Lincara Pty Ltd in his application for the Working Holiday (Extension) visa, the Tribunal considers the delegate made the decision to grant the visa based, in part, on this incorrect information, and the visa holder may have received an immigration benefit to which he may not have been entitled.
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
(d) the circumstances in which the non-compliance occurred
The applicant provided a response to the NOICC. The response is set out at paragraph 14 above and the delegate’s summary is set out in paragraph 15 above. The Tribunal reviewed and summarised the applicant’s written submissions as paragraphs 20 and 21 above. The Tribunal has reviewed this detail. It sets out the visa holders employment in Australia, his sometime work for 26 days, the use of a person named Lee Hansell to lodge his visa application, his non-recourse to a registered migration agent, his work detail and income levels on infrastructure projects. In evidence to the Tribunal the applicant advised he did not attempt to contact the department at any time during the period of Covid-19 whilst he was resident in Sydney.
The Tribunal notes the departmental file in Doc ID numbers 9236107 contains detail headed WHM Integrity that outlines the detail of bulk cancellation of 24 417 visas for 24 Working Holiday Visa holders who claimed to have worked in regional Australia for Lincara Pty Ltd T/A Wandin Valley Farms, ABN 56831787511 in the period March 2020 until July 2020. The applicant’s provision of information as outlined in paragraph 23 above is part of a scam. The applicant may have been a willing participant. The applicant may have been innocent of any irregular behaviour. The onus at all time lies on an applicant to ensure correct information is provided to the department. See for example sections 98 and 100 of the Act as to Completion of visa application and Incorrect answers and the finding of the delegate “that engaging a third party does not excuse the visa holder from the requirement to provide correct information.” The Tribunal made this information available to the applicant during the hearing in the presence of his solicitor, explained its relevance and asked the applicant if he sought an adjournment. The applicant declined. The solicitor for the applicant advised the Tribunal shed was generally aware of the scam as it was now widely known in the Irish community.

In evidence to the Tribunal the visa holder advised concerning the circumstances of ‘non- compliance’ were that he was recommended to Mr Hansell by a friend, contacted Mr Hansell by email, after some weeks and many emails from Mr Hansell retained Mr Hansell, gave him only basic personal information, paid a fee of around $2,000 by bank transfer, Mr Hansell lodged the application and the applicant never sighted the application prior to it being lodged.
The Tribunal notes the reference to Covid-19. The Tribunal is aware that state governments imposed varying restrictions as to mobility of persons, time limits and the ability to carry out routine tasks. These decisions varied from state to state. There was considerable publicity at the time in various media platforms in addition to websites of state and Commonwealth governments inclusive of departmental websites. The onus is at all times on visa holders to maintain adherence to conditions attached to visas. The applicant had many and varied opportunities to avail himself of freely available public information. The applicant provided little detail as to the extent, timing and time-lines of government mandated restrictions in Sydney during the period of Covid-19
The Tribunal notes that information as to visa information and visa conditions is readily available. See for example the following:
ohttps://immi.homeaffairs.gov.au/visas/already-have-a-visa/check-visa-details-and-conditions/check-conditions-online/for-organisations
ohttps://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-417/specified-work
ohttps://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-462/specified-462-work
The Tribunal considers the provision of incorrect information in an application for a visa to be a very serious matter. The Tribunal considers the non-recourse to a registered migration agent who might have provided lawful advice to the visa holder as a serious matter. The Tribunal considers the non-recourse to freely available and readily accessible public information as to visa holder obligations and Working Holiday (Extension) Visa conditions to be a serious matter.
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
(e) the present circumstances of the visa holder
There is no information before the Tribunal to indicate the visa holder has any other family in Australia, or has otherwise established any significant ties to Australia such that cancelling his Working Holiday (Extension) visa will cause significant hardship to him or any family members. The applicant advised the Tribunal he did not have any family in Australia. He work construction and grosses about $4,000 per week. He is not involved in any community groups or community activities as he works long shifts of 12 hours. His mother in the UK takes medication in the form of puffers. The applicant is not married .He is not in a de facto relationship. He does not have any dependants in Australia. The applicant is a skilled tradesperson working in an area where there is a shortage of skilled labour. The applicant is held in high regard by his employer.
In evidence to the Tribunal he advised as follows:
·He is employed as a highly paid carpenter on construction sites in Brisbane. He is not married and does not have any dependants in Australia. His mother is ill and receiving medication. He is active in the football community with young people. These aspects of the applicant’s life are fairly consistent with the life of a highly paid skilled worker in Australia. They are not particularly remarkable.
The Tribunal gives this consideration weight in favour of cancelling the visa.
(f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
There is no information before the Tribunal to indicate the visa holder attempted to contact the Department to inform them of the incorrect information. There is no information before the Tribunal to indicate the visa holder at any time sought to obtain correct information.
In evidence the visa holder advised the Tribunal as follows:
·There are no other like instances.
The Tribunal gives this aspect neutral weight..
(g) any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance by the visa holder.
Temporary visa holders are expected to comply with visa conditions at all times.
The Tribunal give this consideration neutral weight concerning possible cancellation of the visa.
(h) the time that has elapsed since the non-compliance
On 24 October 2020The visa holder lodged an application for a Working holiday Visa Extension using the online system. On that date the visa holder was granted a Working Holiday Visa Extension. As outlined above the visa holder has maintained well-paid employment until the current time. A little less than 2 years from application lodgement date has elapsed since the non-compliance which the Tribunal does not consider to be a significant amount of time.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
(Note: there is no consideration (i) in the current legislation)
(j) any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal to indicate the visa holder has breached any laws since the non-compliance. Temporary visa holders are expected to conform to the law at all times.
The Tribunal gives this consideration no weight against cancelling the visa.
(k) any contribution made by the holder to the community
In evidence the applicant advised the Tribunal as follows: See above concerning work and community engagement.
The Tribunal gives this aspect neutral weight.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
In evidence the visa holder advised the Tribunal as follows. There are no other persons whose visas might be cancelled.
The Tribunal is not aware of any person’s visa who would, or may, be consequentially cancelled under section 140 of the Act.
As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
The visa holder has not applied for protection nor made any claims that returning to his home country would result in him suffering significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations if the visa were to be cancelled and the visa holder had to return to his home country. The applicant advised the Tribunal he does not have any children.
Furthermore, there is no information before the Tribunal to suggest the visa holder has any children in Australia who may be affected by a decision to cancel the visa. The Tribunal is satisfied that should the visa be cancelled, this would not breach Australia’s obligations in respect to the International Convention on the Rights of the Child.
As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration.
Whether there are mandatory legal consequences to a cancellation decision.
If the visa is cancelled, the visa holder will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia, as he would no longer hold a valid visa.
A bar under section 48 of the Act will also be imposed, limiting the visa holder’s options to apply for further visas from within Australia. Furthermore, he will also be affected by Public Interest Criterion 4013, where he may be prevented from being granted certain types of visas for a period of three years from the date of visa cancellation.
The Tribunal gives this consideration and the matters outlined in paragraphs 10 to 20 of his written submission dated 13 June 2022 provided by King Corporate Migration neutral weight.
The Tribunal notes the consequences of a visa cancellation are serious. Those consequences were set out by the parliament. Those consequences are not the act of a capricious government, department or Tribunal. Those consequences are deliberate and in part reflect the seriousness of providing non-genuine information in support of a particular visa application. In this case the grant of a Working Holiday Visa and possible extensions is a reflection of the part of government to ensure an increase in supply of labour to rural or regional Australia. It is not appropriate on the part of the applicant to engage in behaviour to circumvents that policy purpose. The government and department and various state governments during the period of Covid-19 made it clear that assistance was readily available to visa holders and those affected by government restrictions.
Any other relevant matters.
There are no other relevant matters for the Tribunal to consider.
CONCLUDING PARAGRAPHS
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.
Mark Bishop
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.

[2022] AATA 3136

2 August 2022

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