Kenyeres (Migration) - [2020] AATA 1050

Kenyeres (Migration) [2020] AATA 1050 (6 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zsolt Kenyeres
CASE NUMBER:  1724540
DIBP REFERENCE(S):  BCC2012/380759 CLF2010/23111
MEMBER:Sheridan Lee
DATE:6 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 121 (Employer Nomination Scheme) visa.
Statement made on 06 March 2020 at 1:59pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Migrant) (Class AN) visa – Subclass 121 (Employer Nomination Scheme) – Federal Circuit Court remittal – incorrect information and bogus documents in visa application – false work history, forged signature and fake employment contract – skills assessment secured using false and misleading information – employment, criminal and migration history in Europe, the USA and Australia – currently in prison – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 97(c), 101(b), 103, 107(1)(a), 109(1), 359A, 359AA, 375A, 376
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 121.211(b)(i)
CASE
COT15 v MIBP (No 1) (2015) 236 FCR 148
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 121 (Employer Nomination Scheme) visa under s.109(1) of the Migration Act 1958 (the Act).
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.
On 2 October 2012, the delegate cancelled the applicant’s Subclass 121 visa on the basis that the applicant provided incorrect answers on his visa application form and supplied bogus documents in support of the application. Specifically, the delegate found that the applicant had provided a false work history, a forged signature by his purported sponsor and a fake contract of employment. In addition, the delegate found that the applicant’s skills assessment, which was submitted in support of his visa application, was secured using false and misleading information and was therefore a bogus document.
The delegate cancelled the visa for non-compliance with ss.101 (b) and 103 of the Act. The delegate was satisfied there was a ground to cancel the visa and the considerations that weighed in support of cancelling the visa outweighed the considerations that weighed against cancelling the visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
PROCEDURAL HISTORY
Visa application
On 16 February 2010, the applicant applied for a Subclass 121 visa. Included with that application was form 47ES, signed on 4 February 2010. At question 87 of the form was a declaration that the information supplied in the visa application was correct and up-to-date and an acknowledgement that the applicant understood that if he gave false or misleading information his application may be refused or his visa cancelled.
The applicant’s work history, provided at Q 32 of form 47 ES and Q23 on form 80, was as follows:
·19 December 2004 – 8 May 2009, General Manager, European Auto Sales, Budapest
·25 September 1989 – 26 November 2004, Distribution Manager, Polytherm Pty Ltd, Budapest
·7 May 1984 to 15 September 1989, Police Officer, Budapest.
In support of the applicant’s work history he submitted references dated 13 May 2009 from European Auto Sales Pty Ltd and 22 May 2009 from Polytherm Pty Ltd.
The same work history was supplied to the Australian Institute of Management (AIM) in support of the applicant’s skills assessment, submitted as a requirement of the grant of the Subclass 121 visa.
On question 30 of form 47ES and on form 785, the applicant stated that he had been nominated by W.P. Contractors to work in the occupation of Supply and Distribution Manager.
On 16 April 2010, the applicant was granted a Subclass 121 visa in reliance on the information provided with his visa application.
Cancellation
Following an investigation by the Department, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) as required by s.107 of the Act. The notice advised the applicant that the delegate considered he had not complied with ss. 101(b) and 103 of the Act. It was alleged that the applicant had provided false information relating to his employment with European Auto Sales and Polytherm and that his skills assessment issued by AIM, employment contract and letter of employment from WP contractors were bogus documents.
The applicant provided a response to the NOICC on 16 July 2012, denying that he had provided incorrect information or bogus documents.
On 2 October 2012, the delegate cancelled the applicant’s Subclass 121 visa. The delegate’s decision, a copy of which was provided to the Tribunal, outlined that the applicant supplied a range of information in respect of his work history with his Subclass 121 visa application. The delegate considered that much of that information was incorrect and he had therefore not complied with s.101(b) of the Act. In particular:
·Polytherm had no presence in Hungary. Therefore the applicant’s claim to have worked for the company in Budapest was found to be false.
·European Auto Sales was no longer in operation and there was no record that the applicant had worked for the company. Therefore his claim to have worked for the company in Budapest was found to be false.
In addition to incorrect information relating to the applicant’s work history, he also submitted a range of documents that were determined by the delegate to be bogus in contravention of s.103 of the Act. In particular:
·the employment contract and letter of employment from WP Contractors were found to be bogus on the basis that they were counterfeit. The Director of the company had not signed them and never made an offer of employment to the applicant.
·as the applicant did not work for Polytherm or European Autosales, he did not possess the necessary five years of work experience as a manager to attain a positive skills assessment from AIM. The positive skills assessment was therefore obtained because of a false or misleading statement and was found to be a bogus document.
First application for merits review
The applicant first applied for merits review of the decision to cancel his visa on 10 October 2012. Prior to the Tribunal hearing on 12 February 2014, the applicant made written submissions on five occasions. In summary, the applicant alleged that the Department did not follow applicable policies, failed to consider all of the evidence or provide procedural fairness and incorrectly placed the burden of proof on the applicant. In addition, the applicant refuted each of the findings of non-compliance.
The first Tribunal (differently constituted) was provided with information supplied to the Department by an anonymous source. The source alleged that the applicant spent time in prison overseas on many occasions for fraud related offences. Further, none of these offences were declared to Australian authorities and the applicant paid to obtain a fraudulent international police check. The following three examples were provided:
·In 1990 the applicant was jailed for six months in Austria for counterfeiting money.
·In 1994 the applicant was jailed in Hungary for fraud. He took money from people and said he would pay it back at a high interest rate but never did.
·In 2002 the applicant was jailed for 18 months for fraud. No further details in respect of the offending was provided.
In addition to the criminal convictions, the source alleged that the applicant lived in the United States of America (USA) from 1996 until 2002 and was held in immigration detention for two years for living in the country illegally.
This prompted the Tribunal to verify the authenticity of the applicant’s Hungarian Certificate of Good Character, purportedly issued to the applicant in September 2009 in Budapest. The Department’s office in Vienna contacted the Criminal Registry Authority in Budapest and was advised that ‘the relevant authority has not issued the good conduct certificate to Zsolt Kenyeres (Budapest; 15/048/1965, mother’s name Pomazi Maria Erzsebet) on the 8/09/2009 or on any other date’. On 21 August 2013, the Department determined that the document was counterfeit.
The Tribunal also consulted a wide range of open-source material that related to the applicant’s migration and criminal history. Information available online, including a number of media articles, revealed that the applicant was party to proceedings in the Supreme Court of the United States. In a decision handed down on 21 March 2003, Justice Kennedy denied an application by Mr Kenyeres to have his deportation stayed.[1] The proceedings followed a decision by the Immigration and Naturalisation Service (INS) to remove the applicant following the expiry of a temporary tourist visa and a failed application for asylum.[2]
[1] Kenyeres v Ashcroft 538 US 1301 (2003), the Tribunal decision noted that the US Supreme Court decision was located at (page 1302) and bulk.resources.org/courts.gov/c/US/538/538.US.1301.02.777.html
[2] The Board of Immigration Appeals affirmed the earlier findings of a single Immigration Judge that Mr Kenyeres asylum application was untimely and he could not make a showing of changed circumstances or extraordinary conditions necessary to excuse the delay of his removal. This was appealed to the Court of Appeals for the Eleventh Circuit - Kenyeres v Attorney General, No. 03-10845-D (March 14 2003) – which denied the stay.
The judgement outlined that the applicant entered the USA on a tourist visa on 29 January 1997. The tourist visa was valid until 28 July 1997; however the applicant remained in the USA illegally from that time. At the hearing, the Tribunal provided the applicant with a copy of the Supreme Court judgement and a number of news articles relating to the proceedings.[3] The applicant acknowledged the evidence and conceded that he was the same Zsolt Kenyeres referred to in the Supreme Court proceedings and related media reports.
[3] Benjamin, JA 2001, ‘Detained Hungarian Makes Plea for Asylum’, Sun Sentinal, 6 July Thomas, K 2003, ‘Supreme Court blocks deportation of Hungarian secret policeman’, Associated Press Newswires, 19 March Holland, G 2003, ‘Supreme Court stay lifted in Hungarian deportation case in Miami’, Associated Press Newswires, 22 March >
Despite the admission, the Tribunal explained to the applicant that it was required to put the information to him in a particular way, in accordance with the codified procedural fairness requirements outlined in s.359AA of the Act. In particular, the Tribunal explained that if it accepted that the applicant had been in the USA for at least the period between 1997 and 2003, it would not accept that he had been employed between September 1989 to 26 November 2004 as a Distribution Manager for Polytherm in Budapest, Hungary, either for the entire period or for at least the period between January 1997 and March 2003.
As this employment experienced was used to form part of the applicant’s claimed managerial experience in the skills assessment application made to AIM on 30 November 2009 and formed the basis for the positive skills assessment provided by AIM on 5 January 2010, if the information were accepted it would lead the Tribunal to conclude that the skills assessment was a bogus document within the meaning of s.97(c) of the Act in that it ‘was obtained because of a false or misleading statement, whether or not made knowingly’.
The bogus skills assessment was provided to the Department with the visa application. The Tribunal would accordingly find that the applicant was in breach of s. 103 of the Act, which provides:
A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.
The same claim concerning the applicant’s employment with Polytherm was provided on the form 47ES and on the form 80. The Tribunal advised that if the information were accepted, it would lead the Tribunal to find that the applicant had breached s.101 of the Act, which requires visa applications to be correct. This would in turn be part of the reason for the Tribunal finding that there was non-compliance in the manner specified in this particular aspect of the NOICC for the purposes of s.108.
The Tribunal advised the applicant that if the information were accepted it would be considered adversely in relation to the circumstances prescribed in r.2.41 for the purposes of s.109.
In addition, the Tribunal outlined the information obtained from the Hungarian authorities indicating that the certificate of good character was not issued by them. It was explained to the applicant that if the Tribunal accepted the police clearance was counterfeit, it would be considered adversely in relation to the circumstances prescribed in r.2.41 for the purposes of s.109.
The Tribunal allowed for an adjournment for the applicant to consider his response after presenting the potentially adverse information in respect of his whereabouts between 1997 and 2003 and again after presenting the information in respect of his police clearance. On request, the Tribunal then provided an opportunity for the applicant to provide a written response after the hearing.
At the hearing, the Tribunal also took evidence from the applicant’s wife, son, son’s partner and a leader of his church congregation. The applicant’s wife, Mrs Marta Taborzski, commenced giving evidence that she and her husband had lived exclusively in Hungary, however she later amended her evidence once she was advised of her husband’s admission. She then confirmed that the family had spent time in the USA and the applicant had been convicted of an offence, but only spent a few months in prison during the 1990s. Mrs Taborzski confirmed that her husband worked for Polytherm after he departed Hungary in 1997 and whilst he was in the USA.
The applicant’s son, Mark Kenyeres, told the Tribunal that he spent some time in the USA with his family when he was young. He alleged that his father was always around following the family’s return to Hungary from the USA in 2003. The Tribunal then advised the witness that his father had conceded to having spent time in prison following his return to Hungary. The witness was unable to explain his earlier testimony. Mark Kenyeres described his father as a helpful man who would make charitable contributions as part of his chauffeur service. He gave evidence that the applicant had been a great support to him and his then fiancée, who is an Australian citizen.
Mark Kenyeres’ partner, Demi Kovak Rene, gave evidence that she was welcomed into the Kenyeres’ home during a difficult time in her life. Frank Cantor gave evidence reflecting his earlier written statement that the applicant and his family were members of his church congregation. He had known the family for several years and attested to the applicant’s good character.
On 3 March 2014, the Tribunal received lengthy submissions from the applicant in response to the information put to him at the hearing. The submissions will be discussed as relevant in the consideration of claims and evidence below.
On 28 June 2015, the Tribunal affirmed the decision under review.
On 4 October 2017, the Federal Circuit Court remitted the matter to the Tribunal by consent of the parties on the basis that the applicant was denied procedural fairness because a certificate issued pursuant to s.375A of the Act was not sufficiently disclosed.
Current application for merits review
First invitation to comment or respond
On 23 May 2019, the Tribunal wrote to the applicant to advise that his application had been constituted to a Member and was under active consideration. The first part of the letter provided the applicant with information about four certificates issued over a number of documents supplied to the Tribunal under ss.375A and 376 of the Act:
·Certificate 1: Issued on 16 October 2012 under s.375A
·Certificate 2: Issued on 18 April 2013 under s.375A
·Certificate 3: Issued on 20 September 2013 under s.375A
·Certificate 4: Issued on 1 April 2019 under s.376
Copies of each certificate were attached to the letter for reference. Certificate 3 had a small redaction, as the certificate revealed the source of the information. The letter went on to advise as follows.
Certificate 1
The Department has sought to restrict disclosure of folios 1 to 13 of file BCC2012/380759 on the basis that disclosure of the information would be contrary to the public interest.
The Tribunal has reviewed the material sought to be restricted by the certificate. Specifically, the Department sought to restrict the disclosure of:
·a file note recording a referral for cancellation of your Subclass 121 visa. The file note contains details of a statement from a representative of WP Contractors. The representative expressed the view that the employment contract and letter of appointment purportedly provided by WP Contractors were not genuine. The note also contains details of an interview with a migration agent. The agent alleges that they did not assist with or lodge your visa application. The investigator noted checks undertaken to verify the authenticity of work references provided with the application.
·file notes recording details of checks undertaken by departmental officers to verify the authenticity of work references provided with your visa application. The checks indicate that the work references were not genuine.
The Tribunal considers that the certificate is valid on the basis that disclosure of the documents or information would be contrary to the public interest as it may reveal investigation methodology and discourage people from assisting with department investigations. I write to provide an opportunity for you to comment on the validity of the certificate.
Certificate 2
The Department has sought to restrict a number of emails sent in association with file BCC2012/380759 on the basis that disclosure of the emails or information contained within the emails would be contrary to the public interest because it would identify the source of the information, who had instructed that he/she remain anonymous.
The Tribunal is of the view that the majority of the content in the relevant emails does not contain or potentially reveal a confidential source of information. For this reason, the Tribunal considers that the certificate is invalid and has chosen to release the documents to you, with some redactions to protect information that may enable a person to identify a confidential source of information.
Certificate 3
The Department has sought to restrict disclosure of information provided by an international law enforcement agency on the basis that it would be contrary to the public interest because it was ‘issued by an international agency, exchanged in confidence, and is not relevant to the review. Disclosure could jeopardise that agency’s and Australia’s law enforcement programmes.’
The Tribunal considers that the certificate is valid as disclosure would be contrary to the public interest on the basis that it might jeopardise Australia and other countries’ law enforcement programmes.
Certificate 4
The Department has sought to restrict disclosure of information received by the Border Watch Allegations and Referral Team in relation to file BCC2012/380759 because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.
The Tribunal has the discretion to disclose the information which is subject of a certificate issued under s.376 to you, or it may withhold the information, having regard to any comments raised by the delegate in the certificate.
The Tribunal notes that the emails do not reveal the identity of the source and considers that it would be possible to release the documents with some minor redactions to protect information that may enable a person to identify a confidential source of information. The Tribunal further notes that the same information was covered by Certificate 2, which has been found to be invalid. This certificate is similarly invalid.
The relevant documents are attached with redactions.
If you wish to make any submissions in relation to the validity of the certificates and/or on why the information the subject of the certificates should be disclosed to you, please forward written submissions to the Tribunal by 6 June 2019.

The second part of the letter sent on 23 May 2019 invited the applicant to comment on or respond to potentially adverse information. The particulars of the information were outlined as follows.
A file note from 2012 outlines that the Department received a statement from a representative of WP Contractors. The representative expressed the view that the documents purportedly issued by the business and submitted with the nomination application associated with your Subclass 121 visa were not genuine.
In 2012, the Department conducted an interview with a migration agent. That agent gave evidence that they did not assist you with or lodge your Subclass 121 visa application.
This information is relevant to the review because it suggests that you provided incorrect information on your Subclass 121 visa application form. If the Tribunal relies on this information, it may conclude that there was non-compliance with s.101 of the Act, which provides that a non-citizen must fill in or complete the application form in such a way that all questions must be answered and no incorrect answers given or provided. The Minister or a delegate of the Minister may cancel a visa under s.109(1) if a visa holder fails to comply with s.101.
In 2012, the Department made a series of enquiries with overseas sources. The information obtained through these enquiries indicated that your work history and references were not genuine. This information formed the basis, or part of the basis, for the decision to refer your Subclass 121 visa to another area of the Department for cancellation.
This information is relevant to the review because it suggests that you have provided incorrect information in relation to your employment history and that your skills assessment, issued by AIM, was based on fraudulent material and is therefore a bogus document. If the Tribunal relies on this information, it may find that there was non-compliance with sections 101 and 103 of the Act. Section 101 was set out earlier in this letter. Section 103 provides that a non-citizen must not give a bogus document or cause such a document to be given, presented or provided. The Minister or a delegate of the Minister may cancel a visa under s.109(1) if a visa holder fails to comply with ss.101 or 103.
Further, if the Tribunal relies on this information in making a decision, it may conclude that there was non-compliance in the way described in the notice given to you by the Department under s.107 of the Act.
In 2013, the Department received information from an anonymous source alleging that you have spent time in jail for fraud related offences, spent time in immigration detention in the United States of America, paid for a business sponsorship to come to Australia, and used fake employment and police check documents to secure your Subclass 121 visa.
In 2013, the Department received information from an international law enforcement agency in respect of potential criminal offences committed by you.
This information suggests that you gave incorrect answers on your visa application form in relation to your criminal history and submitted a bogus police check. The information also indicates that you have a history of fraudulent and criminal behaviour. The Tribunal may take this into consideration when deciding whether to exercise the discretionary power to cancel you Subclass 121 visa pursuant to s.109(1).
You are invited to give comments on or respond to the above information in writing.
The applicant was requested to provide any comments or response by 6 June 2019, noting that he could request an extension of time before that date.
On 5 June 2019, the applicant requested an extension of 120 days on the basis that his immigration lawyer withdrew her representation and he required time to secure new representation. The applicant outlined that his new representative would need to review thousands of documents. The Tribunal provided an extension until 4 October 2019.
On 29 September 2019, the applicant requested an additional extension of 90 days to prepare the submissions personally as he was unable to secure new legal representation. The Tribunal carefully considered the request and agreed to an extension of time until 1 November 2019. The revised date took into consideration that the applicant had more than five months to prepare a response. In addition, as the applicant was now representing himself, it was no longer necessary for a third party to review the documents.
The Tribunal received submissions from the applicant on 31 October 2019. The applicant commenced his submissions by apologising for modifying some of the information and details in his application for permanent residency. The submissions did not specify which information was modified.
The submissions outlined that the applicant returned to Hungary after losing his protection case in the USA in 2003. He alleged that he established a well-respected business in Hungary. Nevertheless, the post-communist Hungarian Government was still corrupt and made life difficult for the applicant. His daughter had moved to Australia and they decided to reunite the family.
The applicant maintained that the Hungarian certificate of good character was not counterfeit and that his previous migration agent had proven that to be the case. Subsequent police checks came back clear, however the applicant no longer had access to the documents held by his agent.
Over the last six years, the applicant claimed to have owned and managed six companies and paid the appropriate taxes and company fees. The applicant claimed to have assisted charities through his companies, such as local churches and St Kilda Mums.
The submissions contended that when the applicant lost his working rights in 2012 he started to invest money on behalf of third parties in order to support himself and his family. He was taken into remand in March 2018 when the Australian Federal Police (AFP) came to his house to enforce an extradition order. Because of this, the applicant’s business dealings came to a halt and he could not meet his financial promises. He was reported to police and convicted of fraud related offences.
The applicant’s son, daughter and granddaughter live in Melbourne. The applicant’s wife is a secondary applicant and her visa would be consequentially cancelled and she would be forced to return to Hungary while the applicant remained in an Australian prison.
Second invitation to comment or respond
The Tribunal was able to access a copy of the sentencing remarks relating to the applicant’s fraud convictions from the Supreme Court of Victoria. On 11 December 2019, the Tribunal invited the applicant to comment on or respond to information relating to those convictions that was potentially adverse. An extract of the correspondence is provided below.
The particulars of the information are:
On 16 August 2019 you were convicted on ten charges of obtaining financial advantage by deception, and five charges of obtaining property by deception.[4]
You pled guilty and you were sentenced to a total of seven years and six months’ imprisonment.
Your victims were Steven Kwok, Tuan Hoang and Thi Thu Ha le, Stephen Davis, Brian Jamieson and Christopher McUtchen and Simone Evans.
Your offending spread between October 2016 and March 2018 during which time you obtained a total of $1,666,656.94 through deception.
In the sentencing remarks, Her Honour Judge Cannon noted at paragraph 141 that ’once your residency visa was cancelled, you were unable to work, but this did not prevent you from doing so’.
Please note that a copy of the sentencing remarks is attached for your reference.
This information is relevant to the review because it indicates that you have a history of fraudulent and criminal behaviour, including non-compliance with your visa conditions. The Tribunal may take this into consideration when deciding whether to exercise the discretionary power to cancel your Subclass 121 visa if it is determined that there was non-compliance, pursuant to s.109(1).
The Tribunal may also take this into consideration when making an assessment of your general credibility as a witness.
If we rely on this information in making our decision, we may affirm the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
[4] DPP v Kenyeres [2019] VCC 1316
The applicant was requested to provide any comments or response by 27 December 2019, noting that he could request an extension of time before that date.
On 17 December 2019, the applicant requested an extension of 30 days to respond to the s.359A letter. The request outlined that the applicant was concerned that his submissions would be delayed because of the 2 day holiday closure. The Tribunal considered that an extension of 10 days would be reasonable to take account of possible delays caused by the holiday period and requested that the comments or response be received by 6 January 2020.
On 5 January 2020, the applicant responded to the letter of 11 December 2019. The applicant alleged that he took a number of high interest loans from friends in order to cover his legal costs. His immigration case was delayed and he had to borrow more money. Since he was unable to work, the applicant invested some of the borrowed money overseas in the hope of achieving high returns. The applicant maintains that he did not work once his work rights were removed. Due to the high interest rate, the amount owing increased to the figure that the applicant was convicted for.
Finally, the applicant requested that his visa be reinstated so that he can work to repay his victims once he is released from prison.
The Tribunal hearing
The applicant appeared before the current Tribunal on 5 February 2020 to give evidence and present arguments. An interpreter in the Hungarian and English languages was made available during the hearing, however his services were not utilised by the applicant.
During the preliminaries, the applicant was advised that in making a decision, the Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted. However, the Tribunal is not bound by any findings of fact made by the previous Tribunal Member.
Given the long history of the proceedings, the Tribunal spent some time seeking to clarify with the applicant which issues were in contention with the view to return to each of those issues following the discussion. The Tribunal commenced the process by summarising the possible non-compliance that was particularised in the NOICC as outlined above.
The applicant confirmed that he continued to dispute each of the alleged instances of non-compliance specified in the NOICC.
The Tribunal then outlined that it is not open to the decision-maker (including the Tribunal on review) to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice. Thus, the Tribunal would not be free to rely on a ground or grounds that are not referred to in that notice. However, the Tribunal may consider additional breaches relevant when considering whether or not to cancel the visa. In this case, the first Tribunal found that the Hungarian Certificate of Good Character purportedly issued to the applicant in September 2009 in Budapest was counterfeit. The applicant confirmed that he disputes that the certificate was counterfeit.
The detailed evidence provided by the applicant in relation to the above points is outlined below where relevant.
FINDINGS
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. The Tribunal notes that the applicant raised no concerns in respect of the NOICC with the Department or either the first or second Tribunal.
Was there non-compliance as described in the s.107 notice?
Employment with Polytherm Pty Ltd
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.
In relation to the applicant’s claimed employment with Polytherm, the NOICC set out that the applicant submitted an application for a Subclass 121 visa on 16 February 2010. Form 47ES was submitted with the application and at question 32 the applicant stated that he had worked as a Distributions Manager for Polytherm Budapest from 25 September 1989 to 26 November 2004. The same information was provided at question 23 of form 80.
In support of his claimed employment history, the applicant provided a work reference dated 22 May 2009 from Polytherm in Budapest.
The NOICC also set out that as a requirement for the visa, the applicant had his skills assessed by AIM. As part of this assessment, he submitted the work reference as evidence that he had the necessary record or proven management achievement over a period of five years or more in a senior management position. Based on the information provided, including the positive skills assessment obtained from AIM, a Subclass 121 visa was granted to the applicant.
The NOICC then advised the applicant that as part of an ongoing investigation conducted by the Department, adverse information related to the applicant’s claimed occupation was attained. Information received indicated that the applicant may not have the necessary work experience as a manager as claimed with AIM. Employment checks conducted by the Department’s overseas office revealed that Polytherm had no company in Hungary, only Austria. Therefore the applicant’s claim to have worked for them in Budapest was incorrect.
The delegate considered that the applicant had provided incorrect answers and had not complied with s.101(b) of the Act. In addition, as the AIM skills assessment was attained as a result of the applicant’s provision of false or misleading information, the delegate considered it to be a bogus document within the meaning of s.97 and the applicant had therefore not complied with s.103 of the Act.
Once presented with a range of adverse information, the applicant conceded at the first Tribunal hearing, and again in subsequent submissions, that he was in the USA between 1997 and 2003, including a period of three years spent in immigration detention in Miami.
In post-hearing submissions dated 3 March 2014, the applicant claimed to have been employed as a Hungarian Police Officer from 1984 to 1989. He was then promoted to undertake undercover work from 1989 to 1993. Due to his successful undercover operations, the applicant was promoted to the Hungarian Secret Service Police, where he served from 1993 to 1996.
The applicant alleged that he first commenced work for Polytherm as a factory worker while he was working undercover on an investigation into the theft of money paper from a warehouse in Hungary that was used in the production of counterfeit money. A key suspect in the case was working for Polytherm in Austria. The purpose of joining Polytherm was to develop a relationship with the suspect and gather information. During his employment with Polytherm, the applicant claims to have undertaken a variety of jobs and was eventually promoted to the manager role.
The submissions go on to allege that as part of the investigation, the applicant exchanged counterfeit money with the suspect at a local bank for a period of one month, until sufficient evidence was obtained to prosecute. However, the applicant was charged and convicted of fraud in Austria and served six months jail. In order to maintain his anonymity, he did not disclose his true identity to the Austrian authorities. He was released from jail in Austria from December 1992 following the completion of his undercover investigation.
The applicant then claimed to have been selected to work for the Prime Minister of Hungary as a member of the Hungarian Secret Service Police, undertaking an investigation into allegations of criminal conduct by the Chief of the National Hungarian Police Force. Following the death of the Prime Minister in 1993, the applicant’s work was compromised and the subject of the investigation discovered that he had been targeted. In retaliation, charges of embezzlement and fraud were fabricated against the applicant. He was convicted and sentenced to four months jail in 1995.
The applicant feared for his safety in Hungary and relocated to the USA. He developed a successful car park business and lived happily with his family until he was taken into immigration detention.
The submissions of 3 March 2014 go on to concede that when the applicant returned to Hungary, he was convicted of embezzlement and aggravated fraud on the basis of the fabricated charges. He served eight months and was released from prison in early 2004.
At the hearing before the current Tribunal, the applicant maintained that his claimed work experience with Polytherm was not false. He alleged that he continued to organise orders and jobs for Polytherm from offshore and during his period in detention he would make 10 to 15 calls per day and was running four businesses. As raised with the applicant at the hearing, it is at the very least misleading to list his place of employment as Budapest whilst residing in the USA. In response, the applicant stated that he relied upon the advice of his migration agent on how best to present the information.
It is of note that the applicant did not advise the Department or the Tribunal of the long distance nature of his work for Polytherm or that he had worked in multiple jobs throughout the period of employment until he was confronted with evidence of his residency in the USA. Further, the applicant did not provide address details or employment references from the USA with his application.
The applicant claims to have been employed as the Distributions Manager for Polytherm Budapest from 25 September 1989 to 26 November 2004. Through his written submissions and oral evidence, the applicant has asked the Tribunal to accept that he worked for Polytherm in his capacity as an undercover police officer from 1989 to 1993, and then continued to work for them following the conclusion of the investigation. In the subsequent years of employment with Polytherm he was separately employed by the Prime Minister of Hungary as a member of the Hungarian Secret Service Police and then relocated to the USA where he continued to work for Polytherm while he operated a car park business. In addition to holding down multiple jobs, the applicant served three prison sentences and was held in immigration detention for three years, all whilst continuing to work for Polytherm.
The Tribunal simply cannot accept the applicant’s story as plausible. When viewed in conjunction with the Department’s advice that Polytherm did not operate in Hungary, and the applicant’s established history of criminal convictions for fraud related offences in multiple countries, the Tribunal does not accept that the applicant ever worked for Polytherm as a Distribution Manager. Accordingly, the Tribunal does not accept that the written reference is genuine.
The Tribunal finds that the applicant provided incorrect information in his visa application concerning his employment with Polytherm in both his application form and the associated form 80.
The Tribunal further finds that the fabricated written reference from Polytherm was provided to AIM to evidence his employment history in an application for a skills assessment in the occupation of General Manager. That employment history was relied upon by AIM in issuing the applicant with a positive skills assessment. The Tribunal finds that there are reasonable grounds to suspect that the skills assessment provided by AIM on 5 January 2010 is a bogus document as defined in s.5(1)(c) on the basis that it ‘was obtained because of a false or misleading statement, whether or not made knowingly’.[5]
[5] In identical terms to the previous definition set out in s.97(c).

For these reasons, the Tribunal finds that there was non-compliance with ss.101 and 103 of the Act by the applicant in the way described in the s.107 notice in relation to his employment with Polytherm and AIM skills assessment. Given this finding, it is not necessary for the Tribunal to assess the remaining non-compliance as set out in the NOICC.
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. They are:
·      the correct information
·     the content of the genuine document (if any)
·     the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
In this matter, the correct information is that the applicant did not work for Polytherm as a Distribution Manager and did not hold the necessary managerial experience for the grant of the skills assessment and consequently the visa. The applicant provided incorrect information on two separate forms and provided the same incorrect information to AIM in order to secure a positive skills assessment. The Tribunal considers the provision of incorrect information on multiple occasions to be a serious matter. The Tribunal therefore finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight in the applicant’s circumstances.
The content of the genuine document (if any)
This factor is not relevant in the applicant’s circumstances as there is no genuine document for consideration. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document
Any country has a sovereign right to determine who can enter its borders. In the present matter, the applicant applied for a visa under the Employer Nomination Scheme. The purpose of the scheme was to allow Australian employers to sponsor employees who were foreign nationals to work in Australia. The grant of the visa was predicated on the applicant holding the necessary skills and experience to undertake the nominated occupation.
At the time of application, the applicant sought to meet the requirements of cl.121.211(b)(i). The clause required an assessing authority specified by the Minister in a Gazette Notice as the assessing authority for the occupation to which the appointment related to have assessed the applicant's skills as suitable. In this case, the authority specified for the occupation of Supply and Distribution Manager was AIM. Without the inclusion of the applicant’s work experience with Polytherm, the applicant would have fallen short of the required five years of relevant managerial experience that was required by AIM to issue a suitable skills assessment.
Without a successful skills assessment, the applicant would not have satisfied a mandatory criterion for the grant of the Subclass 121 visa. But for the provisions of the incorrect information and bogus document, the applicant would not have been granted the visa.
The Tribunal to find that this consideration supports the cancellation of the applicant’s visa, a consideration which the Tribunal gives significant weight.
The circumstances in which the non-compliance occurred
The applicant claims that he was motivated to move his family to Australia in order to escape a conspiracy against him by the Hungarian Government. Similar claims were made by the applicant in the USA when he claimed asylum following his detention for remaining in the country illegally. In that case, the courts rejected the applicant’s claims to have been set up, finding that the substantial evidence was enough to support a finding that he committed the alleged crimes.
The judgement of the Supreme Court outlined that the applicant entered the USA on a tourist visa on 29 January 1997. The tourist visa was valid until 28 July 1997, however the applicant remained in the USA illegally from that time. The INS initiated removal proceedings on 21 June 2000 and the applicant was taken into immigration detention. The applicant then applied for asylum. The Board of Immigration Appeals affirmed the earlier findings of a single Immigration Judge that the applicant’s asylum application was untimely and he could not make a showing of changed circumstances or extraordinary conditions necessary to excuse the delay of his removal. This was appealed to the Court of Appeals for the Eleventh Circuit, which denied the stay, until it was finally decided by Circuit Justice Kennedy.
On appeal, the applicant argued that the Immigration Judge erroneously rejected his claim under the non-political crime exception, which acts to prevent the application of a restriction on removal to a country in circumstances where there are serious reasons to believe that the alien committed a serious non-political crime outside of the United States prior to arrival. The applicant asserted that the Hungarian Government fabricated the embezzlement and fraud charges against him for political reasons. In the decision, Justice Kennedy held that on the evidence, the Immigration Judge could find substantial grounds to believe that the applicant had committed serious financial crimes in Hungary. He noted that ‘the record contains a translation of the Hungarian arrest warrant for embezzlement and aggravated fraud, as well as testimony that the warrant was obtained from Interpol, which the INS deems to be a reliable source… Given the factual findings of the Immigration Judge and the evidence in the record, [the] applicant is unable to establish a reasonable likelihood that a reviewing court will be compelled to disagree with the decision of the BIA’.
When questioned about the existence of any evidence to substantiate his allegations of a conspiracy by the current Tribunal, the applicant alleged that he had provided top secret files about his investigations as a secret police officer to lawyers located in four countries around the world. Each lawyer had been instructed to publish the file if he were kidnapped or murdered. The applicant claimed that this was his insurance policy against harm from the Hungarian authorities.
The Tribunal finds the applicant’s narrative about his past work as a secret police officer and subsequent persecution by Hungarian authorities to be far-fetched and fanciful. The applicant was refused asylum in the United States and has been fighting the cancellation of his visa and ultimately his deportation from Australia to Hungary. Despite his circumstances, the applicant claims to have access to proof of corruption in the Hungarian Government that he refuses to release. The provision of evidence would provide the applicant with an opportunity to prevent his return to Hungary – the country in which he claims to fear for his life.
Throughout the application and merits review process the applicant has demonstrated a lack of willingness to accept personal responsibility for the provision of misleading information, including the information which he conceded was incorrect, such as the location of his employment. In particular, the applicant sought to place the responsibility for the misrepresentation of his employment history on his migration agent. The Tribunal can accept that there are instances of migration agents providing poor advice, and in some instances incorrect advice. However, in the present case, the Tribunal does not accept that the information was simply misleading. The Tribunal does not accept that the applicant worked in the position of Distribution Manager for Polytherm. The applicant was aware that this information was included in the application and has continued to argue that it is correct.
The Tribunal found the applicant’s story to be inherently improbable. As discussed with the applicant at the hearing, when considered in conjunction with his established history of committing fraud related offences, the Tribunal did not accept the applicant as a witness of truth. The Tribunal considers that the applicant knowingly provided false information for the purposes of gaining a permanent visa. Further, the Tribunal does not accept that the applicant was driven to do so in order to escape persecution.
The applicant throughout the hearing portrayed himself as a victim of circumstances. His oral evidence and written statements reveal he believes he has experienced a sequence of very unfortunate and highly unusual life events, has been caught up in personal and business situations that have had negative consequences for him and he has not caused or contributed to or had any fault in these circumstances.
The Tribunal therefore finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.
The present circumstances of the visa holder
The applicant gave evidence that his certificate of good character was not counterfeit and provided three subsequent certificates that were purportedly issued by the Hungarian Central Office of Administrative and Electronic Public Services. Even if the Tribunal were to accept that the applicant’s criminal record was clear by virtue of an administrative error, he has conceded that he was convicted of various offences and spent time in prison. Although the Tribunal is not making findings on the character test in this decision, it is of the view that the applicant would not likely have been granted a visa and/or permission to enter Australia if his previous convictions were declared.
The applicant is now serving a seven and a half year prison sentence following his conviction for ten charges of obtaining financial advantage by deception, and five charges of obtaining property by deception. In the circumstances, it would be open to the Department to cancel the applicant’s visa and/or refuse any subsequent visa application on the basis that he does not pass the character test. As such, the cancellation of the current visa has limited practical impact on the applicant’s chances of remaining in Australia.

100. At the Tribunal hearing, the applicant advised that he was the subject of an extradition order issued by Hungary. He alleged that the reason he has not been extradited by Australia is because the Hungarian authorities could not clearly articulate the reason for the extradition and amended their allegations on a number of occasions. Unfortunately a transcript of the extradition hearings was unavailable as the Magistrates’ court only holds the recordings for two years. The applicant supplied two court orders issued in March and April 2018 by the Magistrates’ court to hold the applicant in remand during civil proceedings relating to the execution of a warrant. The orders outlined that the applicant was charged with ‘a breach of the PV Act’ and was wanted in Hungary. No further information was set out in the order. Nevertheless, the Tribunal does not consider it necessary to make a finding as to whether the applicant will be extradited in accordance with the order. As previously outlined, there are a number of reasons the applicant is unlikely to be granted any further stays in Australia.
101. The Tribunal accepts that the applicant’s son and daughter are now Australian citizens. The cancellation of the applicant’s visa would result in him and his wife being separated from their adult children. However, the Tribunal notes the applicant would not be prevented from remaining in contact with his family and his children would be free to visit him in Hungary. Further, the applicant is already restricted in his dealings with his children by virtue of being in prison.
102. The applicant gave evidence that his wife has been an important moral support for him while he has been in prison. If her visa were consequentially cancelled, and she were forced to return to Hungary this support would be unavailable to him.
103. While the Tribunal accepts that the applicant has valuable family connections in Australia, overall his present circumstances weigh in favour of cancellation.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
104. While the original instance of non-compliance occurred when the applicant submitted his Subclass 121 visa application on 16 February 2010, the applicant was subject to an ongoing obligation to disclose any incorrect information to the Department throughout the period of his visa. Not only did the applicant fail to advise the Department of the incorrect information, but he has continued to maintain the accuracy of the information provided.
105. Of note, the applicant did not advise the Department or the Tribunal that he spent time in the USA until the information was presented to him by the first Tribunal.
106. The Tribunal finds this consideration supports the cancellation of the applicant’s visa and the Tribunal gives it some weight.
Any other instances of non-compliance by the visa holder known to the Minister
107. Given the findings of non-compliance with ss.101 and 103 of the Act in relation to the applicant’s employment with Polytherm, the Tribunal did not find it necessary to make findings in respect of the other instances of alleged non-compliance that were outlined in the NOICC. As such, the Tribunal has no apportioned any negative weight to the circumstances surrounding his employment by European Autosales or the authenticity of his nomination by an Australian employer.
108. The Tribunal has apportioned significant weight to the applicant’s failure to disclose his criminal convictions in his visa application. The Tribunal considers that this constitutes a further instance of non-compliance with his migration obligations.
109. The Tribunal to find that this consideration supports the cancellation of the applicant’s visa, a consideration which the Tribunal gives significant weight.
The time that has elapsed since the non-compliance
110. The relevant non-compliance first occurred when the applicant submitted his Subclass 121 visa application on 16 February 2010. The lengthy period since the non-compliance occurred weighs against the cancellation and the Tribunal has given it some weight.
Any breaches of the law since the non-compliance and the seriousness of those breaches
111. The applicant has criminal convictions for serious fraud related offences. As noted in the sentencing remarks of Her Honour Judge Cannon, provided to the applicant by the Tribunal on 11 December 2019, the applicant lacked insightful remorse. This lack of remorse was also observed by the Tribunal. Although the applicant provided a cursory apology for his actions, he alleged that he was forced to borrow money in order to cover his mounting legal fees. This explanation did not align with the overview of the offending provided in the sentencing remarks. The Tribunal considers that the County Court of Victoria had the benefit of reviewing the applicant’s financial records and taking evidence from the applicant’s victims. As such, the Tribunal accepts the account of events set out in Her Honours sentencing remarks.
112. The Tribunal therefore finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.
Any contribution made by the holder to the community
113. The applicant claimed to have been charitable in his dealings with the community through assistance provided to the St Kilda Mum’s by his limousine service. He further claimed to have established and managed a number of successful businesses since his arrival in Australia. The applicant was a member of his local Hungarian church and active in the community at the time of the first Tribunal hearing. No additional evidence in this regard was submitted to the current Tribunal.
114. The applicant gave evidenced to the first Tribunal that he assisted the Commonwealth Director of Public Prosecutions in relation to the prosecution of former migration agent Maria Nani, who was an associate of the applicant’s original migration agent.
115. The Tribunal considers that these factors weigh against cancelling the applicant’s visa, but apportions them limited weight. The Tribunal notes that the applicant did not supply any contemporaneous evidence of contributions to the community and considers that it was in his interest to assist the DPP and discredit his migration agent.
Consideration of the Departmental PAM 3 guidelines
116. Should the applicant’s visa be cancelled, his wife’s visa would be automatically cancelled under s.140 of the Act. The Tribunal accepts that she may face a difficult time if forced to return to Hungary without the support of her husband and children. Further, the applicant would lose the emotional and moral support provided by his wife while he is in prison. The Tribunal considers that this factor weighs against the cancellation of the visa.
117. As noted, the applicant’s son is now an Australian citizen and therefore he no longer holds a visa as a dependant of the applicant. As such, the cancellation of his visa is no longer a relevant consideration as it was at the original time of cancellation.
118. Upon cancellation of his visa, the applicant would become an unlawful non-citizen and he is liable to be detained under s.189 and removed under s.198 of the Act. As the applicant is currently imprisoned and it is open to the Department to refuse any further visa applications on character grounds, the Tribunal has apportioned limited weight to this consideration.
119. The Tribunal does not consider that the decision to cancel the applicant’s visa would result in a breach of Australia’s international obligations. Of note, the Tribunal finds that in the applicant’s circumstances the cancellation of his visa would not lead to his removal from Australia in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.
120. There is nothing in the applicant’s circumstances as presented to the Tribunal which prevents his claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for a protection visa by s.48A of the Act. The applicant may face issues regarding his character.

121. The Tribunal considers that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Conclusion
122. 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 in respect to the applicant’s work history with Polytherm. The Tribunal has considered and weighed up all of the relevant circumstances in this case. In the Tribunal’s view the considerations that weigh against the cancellation of the applicant’s visa were not sufficient to outweigh the considerations that weigh in support of the cancellation of his visa.
123. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
124. The Tribunal affirms the decision to cancel the applicant’s Subclass 121 (Employer Nomination Scheme) visa.
Sheridan Lee
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.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

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.