Leung (Migration)

Leung (Migration) [2019] AATA 1081 (28 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ting Ting Leung
CASE NUMBER:  1805573
DIBP REFERENCE(S):  BCC2017/4474531
MEMBER:Karen Synon
DATE:28 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 28 February 2019 at 1:39pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – incorrect information in previous visa application – consideration of discretion – grant of visa based on incorrect information – claimed naivety and reliance on agent – relevance of husband’s employment and reputation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 107A, 109
Migration Regulations 1994 (Cth), r 2.41
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 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had provided an incorrect answer in her application for a Working Holiday (Extension) visa by claiming that she had undertaken three months of specified work in a regional area. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr Wai Fung Wong. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
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.
When referring to the regional work requirement in the Working Holiday visa application, 13 weeks and three months should be read as the same amount of time.
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 – visa applications to be correct - in the following respects:
Section 101 – Visa applications to be correct
A non-citizen must fill in or complete his or her information form in such a way that:
…(b) no incorrect answers are given.
The breach of s.101(b) relates to a Subclass 417 Working Holiday (Extension) visa which the applicant previously held that was granted on 18 March 2015 and ceased on 16 March 2016. Section 107A of the Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.
Section 107A:
Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(a)may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b)if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
By operation of section 99 of the Act:
Information is answer
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
The section 107 notice relevantly set out:
On 11 November 2015 you applied for a subclass 417 Working Holiday (Extension) visa by the Department’s online facility. As part of the application, you completed an electronic application form. On page 2 of the application form, in response to the question “Have you undertaken specified work in regional Australia for a total of three months?” You answered “Yes”.
On page 3 of the application form, under the heading “Details of specified work undertaken”, you provided the following answers:
Details of specified work undertaken:
ABN 41149928174
Postcode 2680
Start Date 17 May 2014
End Date 1 September 2014
On page 6 of the application form, under the heading “Declaration” in response to the question “I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa”, you answered “Yes”.
Based on information provided in the visa application, you met the relevant criteria for the visa approval and on 18 March 2015 you were granted a TZ 417 Working Holiday (Extension) visa.
Department officers contacted the company owners of ABR Farming Pty Ltd (ABN 41149928174). On 5 October 2017, the Department received an email from ABR Farming Pty Ltd which stated that you had never worked for ABR Farming Pty Ltd.
Therefore, on page 2 of the application form, in response to the question “Have you undertaken specified work in regional Australia for a total of 3 months?” you answered “Yes”. I consider you have provided incorrect information, as it would appear that you did not undertake specified work in regional Australia for a total of 3 months.
On page 3 of the application form, under the heading “Details of specified work undertaken”, who provided the following answers:
ABN 41149928174
Postcode 2680
Start Date 17 May 2014
End Date 1 September 2014
I consider this information is incorrect, as the business using ABN 41149928174, ABR Farming Pty Ltd, has confirmed that you never worked for ABR Farming Pty Ltd.
On page 6 of the application form, under the heading “Declaration” in response to the question “I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working holiday visa” you answered “Yes”. I consider this information is incorrect, as it would appear you did not undertake three months of specified work.
Based on the information before me, I consider you are not complied with section 101(b) of the Migration Act because it appears you provided incorrect information in your TZ417 Working Holiday (Extension) visa application.
If you failed to complete your visa application form in such a way that no incorrect answers are given or provided there may be grounds for cancellation of your 457 Temporary Work (Skilled) visa under section 109 of the Act.
The powers to issue this Notice, make a decision about whether there was non-compliance in the way described in this Notice and make a decision about whether to cancel your visa, it is whether the non-compliance was deliberate or inadvertent.
The applicant was invited to respond and address any matters she thought relevant within 14 calendar days of the Section 109 Notice. The following statement was received in response:
In March 2013, after celebrating the Chinese New Year with the family, I came to Australia with my partner. As my partner had qualification and working experience as a Western Chef before, so we looked for relevant jobs in Melbourne during the first few weeks after we arrived in Australia. However, as both of our English is not so good, we either did not get responses after interviewing or could only get the jobs with hourly rate between eight to ten Australian dollars merely. We got the chance to chat with other working holiday visa holders, were told that good English is not a critical requirement while working at the regional farm: besides, the remuneration there is also higher than the jobs in most of the metropolitan areas in Australia. In addition, with at least three months working experience in the regional farms, we would be eligible to apply for the second working holiday visa, which would allow us to get another year for working here. With this good news, we went to a regional farm via a friend’s referral, hope to get job there. However, after stayed there for some period, we just realised that there is a distance between ideal and reality. The situation in the regional farm was that all the works there could be arranged by the foreman, who would take part of our wage as his service fee, that means, we could only get less than three hundred dollars per week even we worked hard for six days in a week, after deducting the rental and the foreman’s service fee. Even worse thing was that, as so many people stayed in the regional farm waiting for jobs, there was no guarantee that we could get work all the time. Sometimes, we could only get jobs for 3 or 4 days per week, which means we sometimes even could not have surplus at all. Because we had to provide financial support to our families in Hong Kong, the money we accumulated at the regional farm was far more than enough for what we expected; we had no choice, but moved to Sydney, hope to get better chance there.
It was lucky that we found the stable jobs in Sydney through a friend’s referral. As we planned to apply for the second working holiday visa; we started looking for the job in regional farms again after working in Sydney for several months. With a bad experience in the farm last time, we thought maybe it would be better to engage an expert to assist us this time. So we paid the fee to an agent, promised us that he would find suitable jobs in the regional area for us very soon, after understanding our situation. However, every time when we contacted him, he always asked us to be patient, saying that “haste makes waste”. We told him that we were in a hurry because we did not have much time left as we plan to apply for the second working holiday visa. He then told us not to worry as he could help us to get the second working holiday visa anyway.
Too young, to (sic) naive as us, we somehow believed what he said, maybe because of the pressure caused from the father of my partner’s situation (he was injured while working, so had to rest at home for a long period) and the financial hardship in our families. After paying the service fee and provided him our passports, we got our second working holiday visa a few weeks later.
Since July 2015, my partner was hired to be the chef in a restaurant named Three Monkeys Place in Melbourne. At beginning, the business was not so good, with his effort; the restaurant became famous and had more and more customers gradually. As the only chef in that restaurant, my partner usually had to work overtime without extra pay, so the boss promised to give him 10% of the net profit as the bonus remuneration after he had worked there for one year. While our second working holiday visa was going to expire, the boss said to my partner that he could sponsor us applying for the 457 working visa as he really hope that my partner could continue to work for him. At the beginning of 2016, the restaurant was chosen as one of the “Melbourne’s Top 50 cheap-eat 2016” by “The Good Food Guide Melbourne”, and at that time, my partner still devoted himself to the business even better.
In October 2016, we were granted the 457 working visa. Later, when he asked his boss about the bonus which he promised my partner before, he mentioned to my partner that as the company had sponsored us to get the 457 working visa, so he would not give my partner the bonus as promised. We were shocked as it was totally different from what he said to us before. We he sponsored us applying for the 457 visa, he never mentioned about the cost, just told us that the business needs my partner, so he could sponsor us to stay in Australia. Since then, he gave my partner the hard time quite often in work, such as saying something, that makes my partner embarrassed, in front of other staff. My partner still remember that at the initial stage while he worked there, the turnover was usually less than on (sic) thousand dollars per day, however; with his hard works, the best turnaround in a day could reach around eight thousand dollars. However, his efforts had been relentlessly treated; so he was sad and could not stand anymore, therefore; my partner started to look after another job at the end of 2016.
Luckily, the boss of Linger Patisserie Café was willing to sponsor and hire my partner working at her shop. Hence; he left the Three Monkeys Place, even helped it to become one of the “20 Cafes you must go to in Melbourne’s Eastern Suburbs” posted by The Good Food Guide. While working at the Linger Patisserie Café, my partner also contribute his best and it has help to win the “AGFG (Australian Good Food & Travel Guide) Readers’ Choice Award for 2018” recently.
The chess player usually said “make one wrong move in chess and you will lose the whole game”; and I believe this is a situation we face at the moment, we are deeply regretted about believing what the agent said to me at the time, without suspecting it or double confirming it with other experts. However, except for the incorrect information he provided to Department of Immigration on our behalf, as what you mentioned in your letter; we believe we have not do (sic) anything unlawful during my stay in Australia these years. Therefore, we hope you can give forgive our past ignorance and give us an opportunity to stay here until the expiry of our current 457 working visas.
The applicant also provided to the Department:
·Medical records, receipts and certificates in relation to her partner’s father’s medical condition; and
·Copies of excerpts from the Australian Food Good & Travel Guide which lists Linger Patisserie as a reader’s choice award in 2018 and also a print out which refers to Three Monkeys Place.
The delegate considered the response and documents provided and decided to cancel the applicant's Subclass 457 visa on the basis that she had provided incorrect information in her Working Holiday (Extension) visa application.
The applicant provided no evidence or documentation to the Tribunal prior to the hearing.
At the hearing applicant gave evidence that she had never worked at ABR Framing Pty Ltd however she did work for about a month picking grapes at a farm, the location of which she cannot remember.
As it is not in dispute in either the written or oral evidence of the applicant that she never worked at ABR Farming Pry Ltd, the Tribunal is satisfied that the applicant provided an incorrect answer in her Working Holiday (Extension) visa application.
For these reasons, the Tribunal finds that there was non-compliance with s.101 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. Briefly, they are:
The correct information
The Tribunal asked the applicant at the hearing what was the correct information relating to her work in a regional area at the relevant time when she was lodging the Working Holiday (Extension) visa application. The applicant said she had done one month of grape picking. The Tribunal asked the applicant if she understood that had she only recorded one month regional work in her Working Holiday (Extension) visa application that she would not have been eligible to be granted a second visa. The applicant responded she previously did not understand this but does now.
The correct information is that the applicant was not employed at ABR Farming Pty Ltd during the period 17 May 2014 and 1 September 2014. It is not disputed that the information contained in her Working Holiday (Extension) visa application was incorrect. The Tribunal considers the content of the correct and incorrect information to be significant.
The content of the genuine document (if any)
This is not a relevant consideration in this case.

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

One of the requirements for the grant of a Working Holiday visa is that the applicant has worked for a total of 13 weeks/three months in a regional area. On the evidence, the applicant worked in a regional area for approximately one month picking grapes although she has provided no contemporaneous evidence of this. The applicant did not provide this correct information of one month work in regional Australia but rather provided incorrect information that she had worked for three months from 17 May 2014 to 1 September 2014 at ABR Farming Pty Ltd.
The Tribunal finds that the decision to grant the Working Holiday (Extension) visa was made, at least in part, on incorrect information relating to the applicant's employment in regional Australia. The requirements for the grant of a second working holiday visa for people who are 18-30 years of age is granted, essentially, on the basis that the applicant has a passport from an eligible country and has completed three months of specified work (in a regional area) while holding the first Subclass 417 visa.
Had the applicant not included the information that she had worked for three months in regional Australia, she would not have been entitled to the grant of the visa. This significantly weighs against the applicant in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant said that because they[1] went to the farm (where she picked grapes) and asked for a tax file number for the visa and were told they could not help them to get the second visa, they went to an agent. The applicant said she had never met the owner of the grape farm and everything went through the agent because her English was not good. The Tribunal noted that the applicant said in her submission to the department that “with at least three months working experience in the regional farms, we would be eligible to apply for the second working holiday visa, which would allow us to get another year for working here”. The applicant agreed she had said this. The applicant said that after working at the grape farm for one month they left the grape farm and went to another agent to look for other farms. The agent asked them to pay him or her and then the agent told them that he/she would be able to get back the information of their previous work at the farms. The applicant said they did not have to get the experience in one farm but could work for a total of three months in different farms. When the first visa had almost come to an end and it was time to apply for the extension of the visa he just said put in the information with the application “because everyone is doing so”. She asked the agent it was necessary to work for at least 88 days and he said it was not necessary because all the other people just work for a certain period and they can submit the application. The applicant said that they never saw the agent and had never seen any document. Invited to give any other evidence about the circumstances in which the non-compliance occurred, the applicant declined to do so.
[1] When the applicant referred to herself in the plural during the hearing she was referring to her husband and herself. Her husband is the subject of a separate visa cancellation.

While the Tribunal is prepared to accept that the applicant’s first experience working as a grape picker at a farm was not as financially lucrative as she expected and that she left this farm after one month, the Tribunal formed the view that the applicant was aware of the requirement to perform 90 days or three months’ work in a regional area. In her submission to the Department she specifically stated “with at least three months working experience in the regional farms, we would be eligible to apply for the second working holiday visa, which would allow us to get another year for working here” and “[a]s we planned to apply for the second working holiday visa; we started looking for the job in regional farms again after working in Sydney for several months” and later that “[w]e told him (the agent) that we were in a hurry because we did not have much time left as we plan to apply for the second working holiday visa” and also that “[h]e then told us not to worry as he could help us to get the second working holiday visa anyway”. The Tribunal did not find the applicant to be truthful in explaining the circumstances in which the non-compliance occurred but rather that it was convenient for her to blame an unnamed agent when in fact her submission to the department reveals that she was clearly aware of the three month work requirement in order to lodge an application for a second Working Holiday visa. Nor does the Tribunal accept that pressure caused from the ill-health of her partner’s father or any other financial hardship in their families was a significant factor in the circumstances at the time. It is the Tribunal’s view that the applicant’s claimed naivety and reliance on her agent are no justifications for her non-compliance.
The present circumstances of the visa holder
The applicant lives in Doncaster East, is not working and has no children. Invited to provide any other information about her present situation she declined to do so. The Tribunal notes however, from the written submission provided to the Department, that her husband was, prior to his 457 being cancelled, employed as a chef at two cafes; Three Monkeys Place and later at Linger Patisserie Café and that he experienced a successful career in both of these establishments. The applicant, prior to the visa cancellation, was a dependent on a husband’s 457 visa. The Tribunal is not of the view that any of the present circumstances of the visa holder way against the cancellation of the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no information before the Tribunal that indicates the applicant has demonstrated behaviour of any concern.
Any other instances of non-compliance by the visa holder known to the Minister
There is no information before the Tribunal that the applicant has otherwise been non-compliant with visa conditions since the incorrect answers were given in her second working holiday application. The applicant’s evidence to the Tribunal is that she ceased working in a Chinese restaurant as soon as she received the Notice of Intention to Consider Cancellation letter and the Tribunal accepts this.
The time that has elapsed since the non-compliance
The non-compliance occurred 4 ¼ years ago in November 2015 when the applicant was applying for a second Working Holiday visa. The applicant has now spent more than five years living in Australia and has financially benefited from working in Chinese restaurants in both Sydney and Melbourne. The applicant’s evidence is that she has not worked for the past 12 months. The Tribunal does not, in the circumstances of this case, consider the period of time that has elapsed since the non-compliance to be significant enough to weigh in favour of not cancelling the visa given the circumstances in which the cancellation arose.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that the applicant has breached any laws since the non-compliance.
Any contribution made by the holder to the community
Asked at the hearing if the applicant had made any contribution to the community she said no, but that her husband has. In this respect the Tribunal notes her written submission to the Department that her partner was employed as a chef at two cafes and that his work contributed to their success and inclusion in ‘Melbourne’s Top 50 cheap-eat 2016 by ‘The Good Food Guide Melbourne and ‘AGFG (Australian Good Food & Travel Guide) Readers’ Choice Award for 2018’. As the Tribunal notes that the applicant’s husband was employed in these positions and therefore being paid and expected to perform at his professional best, the Tribunal places no weight on his employment experience and reputation as being a significant contribution to the community.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in r.2.41 where they are relevant or applicable in this case.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal therefore, in addition to the prescribed matters in r.2.41, has had regard to matters under policy include the following.
Mandatory legal consequences
The Tribunal has considered whether cancellation would result in the applicant 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 applicant from making a valid visa application without Ministerial intervention.
Cancellation may result in the applicant being detained and removed from Australia if she did not depart under any conditions that may be imposed on her bridging visa. The applicant may be subject to s.48 of the Act which may prevent her from applying for further visas while in Australia. The applicant may be affected by Public Interest Criterion 4013 which may limit the granting of a further temporary visa for a specified period.
Subdivision C of Division 3 of Part 2 of the Act was intended, among other things, to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application. It places an onus on non-citizens to provide accurate information and to correct inaccurate information in relation to visa applications. Relevant in this case is that when a visa applicant fills in an application they must answer all questions and must give no incorrect answers. The applicant did provide incorrect answers and the Tribunal's view is that the applicant has benefitted from providing the incorrect answers. She was granted a further Working Holiday visa during which she was employed as a waitress in a Chinese restaurant in Sydney and a 457 dependent visa during which she was employed as a waitress at a Chinese restaurant in Melbourne. She has thus had the benefit of residing in Australia since 2015.
While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if her visa is cancelled, she has benefited from providing the incorrect information in her working holiday visa application and would not have been granted that visa in 2015 if she had provided correct or accurate information about satisfying the work requirement.
Consequential cancellations under s.140
There are no consequential cancellations under section 140 however the Tribunal notes that the applicant’s husband’s 457 visa was separately cancelled for the same reason.
Australia's international obligations
There is no information before the Tribunal that indicates that cancellation of the visa would result in any breach of Australia's international obligations. The Tribunal asked the applicant if she has any fear about returning to Hong Kong and she responded that she is worried because there is a lot of stress. She clarified this as being stress from work and family.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
When asked the applicant said most of her family is Hong Kong however she has a cousin and her husband here. She declined to add any further evidence. Her husband Mr Wai Fung Wong gave evidence that the reason he said he wanted to be witness was to support that what his wife said was true and that is all he wanted to say. Then he added that they did not fill in the application form themselves and did not meet the agent. At that time, when they went to look at the farm and applied for their second visa, their English was not good so they went to an agent. They were not very clear about the procedures and relied on the agent. They never knew the agent would fill in the wrong information for them.
The Tribunal explained that section 107 of the Act means that any information a non-citizen gives or provides, causes to be given or provided, or that is given or provided on the applicant’s behalf for a visa is taken, for the purposes of section 100, to be an answer to a question on a non-citizen’s application form.
The Tribunal acknowledges that the applicant regrets the circumstances in which she gave incorrect information and that the cancellation of her visa may result in some financial hardship should she and her husband have to return to Hong Kong and that they would prefer to remain and settle in Australia. However, given that the applicant has not been working and earning an income here for more than a year, and that the applicant has only ever been in Australia on temporary visas with no expectation of permanency, the Tribunal is not of the view that this hardship will be significant such as to weight against the cancellation of the visa.
Having considered all the written and oral evidence before it, 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 457 (Temporary Work (Skilled)) visa.
Karen Synon
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 1081

28 February 2019

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Immigration

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Statutory Interpretation

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