Kim (Migration)

Kim (Migration) [2019] AATA 4941 (29 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Seungyeon Kim
CASE NUMBER:  1906185
DIBP REFERENCE:  BCC2018/4112200
MEMBER:Rosa Gagliardi
DATE:29 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Statement made on 29 October 2019 at 11:03am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – non-appearance before the Tribunal – ground for cancellation – incorrect information in visa application – specified work in regional area – consideration of discretion – visa grant based on incorrect information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 108, 109, 362
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that contrary to her declarations, she had not worked for MOUNTAIN LEE PTY LTD for at least three months in specified work in a regional area in Australia. 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 Tribunal wrote to the applicant on 12 September 2019 at an address provided to the Tribunal for the purposes of the review to invite the applicant to a hearing to have been held on 17 October 2019 on 12:00pm (Vic time). The Tribunal sent the invitation to both the applicant and the migration agent. The hearing invitation expressly stated that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone.
Initially, the invitation to the migration agent had been returned to sender but the Tribunal liaised with the agent and the invitation and there was confirmation of receipt. In turn, an invitation to hearing response was submitted to the Tribunal indicating that neither the applicant nor the migration agent would be attending the hearing.
In these circumstances, and pursuant to s.362 of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it, particularly as the applicant has submitted a copy of its decision for the purposes of the review.
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 section 101(b):
Visa applications to be correct
101.A non-citizen must fill in his or her application form in such a way that:
(a)All questions on it are answered; and
(b)No incorrect answers are given.
Section 101(b) provides that “a non-citizen must fill in his or her application form in such a way that…no incorrect answers are given”. If it is found that the visa holder has provided incorrect answers their visa may be cancelled under section 109 of the Migration Act.
By operation of s.99 of the Migration Act 1958, 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.
Evidence of potential non-compliance
The visa holder applied for a Working Holiday (subclass 417) visa on 1 April 2018. The visa holder (Ms Kim) had previously held a Working Holiday visa granted on 14 July 2017 and this was her second. The visa holder was required to meet the criteria under r.417.211, including:
If the applicant is, or has previously been, in Australia as the holder of a working holiday visa, the Minister is satisfied that the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of that visa.
In her application form Ms Kim provided her name and surname and date of birth. She was asked, “Have you undertaken specified work in regional Australia for a total of 3 months? If Yes, in which industry did this work mainly occur?” Ms Kim responded “Agriculture, Forestry and Fishing”. Asked if she had approved evidence that she had undertaken specified work in regional Australia for a total of 3 months, Ms Kim responded, “Yes”.
The details of specified work undertaken were provided as follows:
ABN: 68606016577

Postcode: 4805

Start date: 06 November 2017

End date: 09 February 2018.
The applicant signed the declaration stating that the information provided in the form was, “complete, correct and up-to-date”. Consequently, the Working Holiday (subclass 417) was granted on 1 April 2018 based on the information provided by Ms Kim.
On 27 July 2018 MOUNTAIN LEE PTY LTD, the business registered under ABN (68606016577) advised the Department of Home Affairs during the course of its investigations, that the business has not employed Ms Kim.
Consideration of the evidence
The Working Holiday visa (subclass 417) was granted to the applicant on 1 April 2018 on the basis that Ms Kim had worked for at least three months in specified work in a regional area in Australia. Evidence provided by MOUNTAIN LEE PTY LTD indicated that Ms Kim had not worked for that business as claimed. The material provided by Ms Kim was material and integral to the grant of the visa. The declaration she made that she had worked for MOUNTAIN LEE PTY LTD for the period 6 November 2017 to 9 February 2018 was therefore incorrect and was provided to facilitate the grant of a Working Holiday (subclass 417) visa.
Particulars of non-compliance
The Tribunal considers, based on the evidence provided by MOUNTAIN LEE PTY LTD, that they did not employ Ms Kim between 6 November 2017 and 9 February 2018 and that she has not complied with section 101(b) of the Act because the visa holder has provided incorrect answers to the questions in her application form for a Working holiday (subclass 417) visa, in that she was asked whether she had undertaken specified work in regional Australia for a total of 3 months, and Ms Kim responded “Yes”. The Tribunal is satisfied that this response is incorrect because Ms Kim claimed she worked for a company with ABN 68606016557 for the period 6 November 2017 to 9 February 2018, and the Department’s records show that MOUNTAIN LEE PTY LTD has not employed her.
Accordingly, the Tribunal is now required to make an assessment of the visa holder’s response to the information put to her in the section 107 notice and more generally about the potential non-compliance.
Section 108 of the Migration Act – response given by a visa holder
Section 108 states:
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.
The Tribunal is required to consider whether the visa holder, Ms Kim, agrees that there was non-compliance with s101(b) of Subdivision C of the Migration Act. Ms Kim has stated, yes, she agrees there was non-compliance.
The applicant submitted to the Department the following response in relation to the non-compliance:
·Ms Kim submitted that she let the delegate know that all of this was not what she intended.
·She did not write the second application form herself when she applied for her second visa application; she could hardly speak English. At the time she passed all her responsibilities to Mr Lee Kwang-min who persuaded her to extend her visa, because she had no idea what the conditions and necessary requirements were for the extension of the visa.
·She never knew that she would falsify her information and make it false. She trusted Mr Lee Kwang-min when he said that everything was ok. She saw him as a benefactor being a fellow-Korean.
·She still does not understand why she believed a stranger without doubting him. She had responsibility for her visa and it should not have been passed on to anyone. She did not know exactly what to do and gave him all her information, including her passport, without any doubt.
·The visa was extended without difficulty. She really thought that everything was ok with him. She did not realize his actions were against Australian law. It is her great fault to have trusted people in ignorance. She is aware that she bears responsibility.
·She did not know that she was illegal and she did not intend to be so intentionally. Besides she had no advantage in being so. She herself has principles. In any event the lies would be revealed. She always tried to avoid such things. She honestly did not do it on purpose.
·Ms Kim first arrived in Australia at 23 years of age and now she was 25. Australia was the first society and the first foreign country to her and she had no foreign experience in a new country. There are so many ways to go. She has been studying English for 4 months in an academy in Australia. She attached photos with her email depicting certification as evidence of what she did after her second visa started.
·She has just started to realise the pleasure of learning at school and she wanted to study for the first time. She would like to continue studying in Australia in the future. She has been studying ever since she came to Australia and she was wondering what she wanted to study. Therefore she was looking for a university that was suitable to her but she did not want to ruin her young future because of the mistakes she made. She is so afraid that it will be ruined (her future). She did not want to sin. She did not want to live by breaking the law. She did not want to make an error in her identity. She would not have done it if she had known in advance that these periods she got were the result of shortcuts.
·She is so scared that such a big mistake in her first foreign country will affect her life in her society.
·Ms Kim asked to be given a chance to make up for these mistakes so that the delegate can get the right direction for her who has first stepped into a foreign country.
Ms Kim also provided the following documentation in support of her claims:
·Academic Record of Active Conversation in English (ACE) from Universal English.
As an applicant for A Working Holiday visa (subclass 417) visa, Ms Kim was required to demonstrate that she worked for at least three months in specified work in a regional area in Australia. Ms Kim’s second Working Holiday visa (subclass 417) was granted on the basis that she claimed to have worked for MOUNTAIN LEE PTY LTD for the period 6 November 2017 to 9 February 2018. The Department’s investigations reveal, however, that she had not done so and MOUNTAIN LEE PTY LTD did not support her contention that she had worked for the company.
As the applicant has not put forward any submissions to the Tribunal even though the hearing invitation requested such, it is required to rely on the information it put before the Department in terms of why her visa should not be cancelled.
The Tribunal has had regard to the claims that the applicant did not prepare her second application for a Working Holiday visa (subclass 417) herself as she hardly spoke English. Furthermore, she entrusted Mr Lee Kwang-min who said that he persuaded her to extend her visa because she was unaware of all the conditions and requirements. She also stated that she never knew she would use inaccurate information to extend her visa.
The Tribunal has difficulty with Ms Kim’s explanation. Integral to the grant of a second Working Holiday visa is evidence that the visa holder has worked for at least three months in specified work in a regional area in Australia. The Tribunal has difficulty accepting that

Ms Kim allowed herself to believe that her Working Holiday visa could be “extended” with

Mr Lee Kwang-min’s assistance, and that she was unaware of the requirements. At a hearing the Tribunal would have liked to ask Ms Kim about Mr Lee Kwang-min’s credentials in terms of being able to provide migration advice and whether she had actually paid him for such advice. Further, the Tribunal would have liked to ask Ms Kim why she had considered it necessary to engage the services when she had successfully gained entry into Australia without the assistance (presumably) of Mr Lee Kwang-min.
The Tribunal would have also liked to ask further questions about the identity of Mr Lee Kwang-min and whether he was the one who suggested she declare that she had worked for MOUNTAIN LEE PTY LTD for the period 6 November 2017 to 9 February 2018. The Tribunal would have liked to understand how, if indeed it was Mr Lee Kwang-min who had thought of providing the false information (and the Tribunal has reservations Ms Kim was not involved in any way), he had decided to put forward MOUNTAIN LEE PTY LTD as the location where she had undertaken the specified work.
Further, Ms Kim is correct in stating that it is the visa holder’s responsibility to know when their visa expires – this is a fundamental aspect of a visa holder’s responsibilities towards the Department of Home Affairs as well as to the Australian community at large. To suggest that Ms Kim had no idea false information had been put forward on her behalf is not plausible given she could have at any time liaised with the Department to regularise her status and sought advice from them directly without testing the credentials of a “stranger”.
The Tribunal is concerned that Ms Kim is shifting responsibility for providing incorrect information to the Department, painting herself as a victim of his fraudulent conduct. However, the Tribunal does not accept that it is not within the control of every visa holder or applicant to approach the Department and seek credible and current information on their status and how to apply for a further visa.
The Tribunal accepts the advice provided to the Department by MOUNTAIN LEE PTY LTD that Ms Kim had not worked there as claimed for the period 6 November 2017 to 9 February 2018, as there would have been no reason for the company to be untruthful about the matter to the Department, whereas it was in Ms Kim’s interest to provide incorrect information to be able to continue to remain in Australia.
Based on the evidence before it, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. These 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.
At the time of making this decision, the visa holder has not provided any additional material in terms of the non-compliance. This is even though the hearing invitation extended to the visa holder made it clear that any additional documents or information that she may wish to rely on should be provided to the Tribunal by 10 October 2019. The Tribunal is therefore required to refer to the evidence submitted to the Department by Ms Kim in response to the s.107 notice. The Tribunal would have liked the opportunity to ask Ms Kim to discuss the matters under r.2.41 and to advance any arguments as to why the visa ought not to be cancelled at a hearing as the Tribunal is unable to make the visa holder’s case for her.
The correct information
The correct information is that contrary to her declarations, Ms Kim has not worked for MOUNTAIN LEE PTY LTD (ABN: 68606016557) for the period 6 November 2017 to

9 February 2018. This means that she was granted a second Working Holiday visa (subclass 417) on 1 April 2018 on the basis of incorrect information provided in her application form where she stated that she had worked for at least three months in specified work in regional Australia. The Tribunal has accepted MOUNTAIN LEE’S statements to the Department that Ms Kim did not work at that company for the period 6 November 2017 to

9 February 2018.
The Tribunal places adverse weight on Ms Kim’s enabling of the provision of incorrect information that enabled the grant of the visa. This is particularly so as to some extent the Department is relying on applicants to report honestly on their activities in regional Australia. Ms Kim’s actions in providing incorrect information serve to undermine the integrity of Australia’s migration program.
The content of the genuine document (if any)

This matter is not relevant to the Tribunal’s considerations.
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 correct information provided by Ms Kim to procure her second Working Holiday visa (subclass 417) was material to the grant of the visa. Without such incorrect information she would not in all likelihood have been granted a further Working Holiday visa.
The Tribunal places significant weight against the applicant in relation to this matter.
The circumstances in which the non-compliance occurred
The visa holder has asserted that she had not taken responsibility for filling in her own application and that a third party had prepared the information contained therein. The Tribunal is not convinced that Ms Kim was duped by any person into providing incorrect information to the Department but considers that she willingly enabled the provision of incorrect information to extend her stay in Australia, particularly as it appears she embarked upon study here and has aspirations to continue to do so.
The present circumstances of the visa holder
At a hearing the Tribunal would have queried Ms Kim about her current circumstances, particularly as it appears that she is currently in Australia and has no further applications pending. As the holder of a temporary visa, and on the basis of the evidence before it, the Tribunal has limited information that would point to her having strong ties to the Australian community.
The Tribunal has taken into account that the cancellation would mean that Ms Kim would not be able to work in Australia and that her English studies would be disrupted. Nonetheless, Ms Kim had applied for a Working Holiday visa and not a student visa, so it could be argued that Ms Kim’s attempted change of purpose in Australia goes to Ms Kim’s genuine intentions for being in the country in the first instance.
The Tribunal sees no reason why Ms Kim could not continue her studies whether in English or at tertiary level in her own home country or some other country. The visa holder is from the Republic of South Korea with quality higher education service providers, and on the basis of the limited information before the Tribunal, it is unclear to the Tribunal what factors might prevent her from continuing her education in her country.
The subsequent behaviour of the visa holder concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal is concerned that Ms Kim asserted to the Department that she was not aware of the requirements for a Working Holiday visa and of the importance of understanding clearly what has been written in an application form before signing it.
The Tribunal has little information before it regarding other behaviour by Ms Kim concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act.
The Tribunal presumes that Ms Kim has the right to study and that she is not in breach of any current conditions of her visa.
Ms Kim has referred to being “unlawful” even though the Tribunal notes that her movement records show that she was granted a Bridging Visa E (subclass 050) well before her subclass 417 visa ceased in September 2019. The Tribunal places some weight in the visa holder’s favour in this regard.
Any other instances of non-compliance by the visa holder known to the Minister
The Department noted that there were no other known instances of non-compliance by the visa holder and the Tribunal similarly has no evidence before it of Ms Kim further breaching Australia’s immigration rules. The Tribunal therefore rules in the visa holder’s favour in this regard. This is a matter that also places the visa holder in a positive light.
The time that has elapsed since the non-compliance
The non-compliance occurred when Ms Kim made her application for the Working Holiday (subclass 417) visa on 1 April 2018, some 18 months ago. The Tribunal considers, therefore, that while the length of her presence in Australia is not negligible, it is by no means extensive meaning that the opportunity to make significant ties to the country has been minimal. Further, this additional 18 months gained in Australia on the basis of her having been granted a Working Holiday visa on the basis of the provision of incorrect information, and on the basis of her having sought review by the Tribunal, means she has had the benefit of a longer stay in Australia than she might otherwise have been entitled to.
The Tribunal is not satisfied that this is a factor that should be weighed in Ms Kim’s favour.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Department was not aware of any breaches of the law since the non-compliance and similarly the Tribunal does not have information before it to indicate that this is the case. The Tribunal places some, albeit minimal weight in the visa holder’s favour in relation to this matter.
Any contribution made by the holder to the community
Ms Kim has claimed little contribution to the community but at a hearing the Tribunal would have liked the opportunity for her to expand on this matter and make any submissions. As she did not attend a hearing and provided little in response to the Tribunal’s requests for her to make submissions, the Tribunal is unable to afford significant weight on this matter in her favour.
In addition to consideration of the prescribed factors and any matters raised by the applicant in response to the s.107 notice, the Tribunal is also required to consider issues under the Departmental PAM 3 guidelines which are addressed below.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
Should the visa be cancelled Ms Kim would become an unlawful non-citizen and she may be subject to detention and removal from Australia. It is open, however, for the visa holder to leave Australia voluntarily and avoid this process.
The Tribunal does note that the applicant would be subject to an exclusion period of 3 years from the date of cancellation that would bar her from being granted further visas. The Tribunal has given considerable thought to the seriousness of such consequences but ultimately the legal consequences of cancellation under section 109 are intentional consequences built into Australia’s migration scheme to ensure the integrity of its system.
The Tribunal notes that Ms Kim stated that she had concerns about her reputation in society but the Tribunal is unable to see how events in Australia, such as the cancellation, would prevent her from realising her aspirations to study in the Republic of South Korea or some other country. Of course this matter could have been discussed in further detail by Ms Kim had she attended the scheduled hearing.
The Tribunal appreciates that cancellation may not be Ms Kim’s preferred option as she wants to stay and study in Australia, but in the presence of limited compelling factors put forward by her in terms of why the consequences would be particularly severe, the Tribunal is not minded to find that the mandatory legal consequences are of such gravity as to outweigh cancellation.
Whether there would be consequential cancellations under s.140
The Tribunal is unaware of other persons whose visa would be cancelled consequentially should the visa holder’s visa be cancelled. In the presence of limited evidence about this matter, the Tribunal does not consider this factor a significant consideration in terms of whether the visa ought not to be cancelled.

Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child
The Tribunal has not identified any information that indicates that the visa cancellation would lead to a breach of Australia’s international obligations. Ms Kim has put forward little in relation to this matter, and on the basis of the widely known country conditions within the Republic of South Korea currently, the Tribunal is unaware that Ms Kim would face serious harm or significant risk on return to her country. In terms of the best interests of the child, the Tribunal does not have evidence of the visa holder having a child in Australia and she is not claiming that she does.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
The Tribunal has not been able to identify any other pertinent matters in respect of hardship other than the subjective hardship outlined by the visa holder in her response to the s.107 notice. Objectively, the Tribunal has considered the hardship Ms Kim claims she will suffer in terms of her future prospects in relation to study and other matters, but has determined that these are unfounded.
Conclusion
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.
Rosa Gagliardi
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.

[2019] AATA 4941

29 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies