Lyu (Migration)

[2021] AATA 385

Lyu (Migration) [2021] AATA 385 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sin Yi Lyu

CASE NUMBER:  1804199

DIBP REFERENCE(S):  BCC2017/4165455

MEMBER:Rachel Westaway

DATE:19 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 19 January 2021 at 2:38pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in previous Working Holiday (Extension) visa application – applicant never employed by the specified business – employment details arranged by agent – family bereavement – husband’s visa remains valid – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140
Migration Regulations 1994, Schedule 2, cl 417.211; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant’s visa application for an extension of a subclass 417 Working Holiday Visa was deemed to have incorrect answers provided. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 7 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from three witnesses. The first witness was Mr Chun Fu, the applicant’s husband and two other witnesses were Ms Wai Man Lok (Sophia) and Ms Mimi Cheng, both friends of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. 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.

7. 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.

   Did the notice comply with the requirements in s.107? 

8. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. The applicant was sent a notice of intention to consider cancellation of her student visa on 18 January 2018. The notice outlined the reasons for possible non-compliance in connection with a previous visa which may be grounds for cancellation of the current visa. The notice was sent to the applicant and the relevant information was put to the applicant. The applicant received the Notice and responded.:

9. 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?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 ‘Visa Applications to be Correct’ in the following respect: The applicant applied for a subclass 417 Working Holiday Visa (extension) and when filling in the application under “details of specified work in regional Australia for three months” The applicant wrote “yes” and provided the ABN 41149928174, postcode 2680 and start date of 14 October 2015 and end date of 21 November 2015.

11. The applicant was sent information under s. 359(a) of the Migration Act 1958 outlining adverse information which would be the reason or part of the reason for affirming the decision under review.

12. The applicant responded with a submission confirming that the information was incorrect.

13. The applicant was invited to a hearing and she thanked the Tribunal for its time and Ms Lyu confirmed again that she did not work for ABR Farming. She stated that she was told that she could do odd jobs by a man called Murray and she did babysitting and fruit picking and then she was provided with the information to put in the application. Murray prepared her application and she confirmed that she saw it prior to it being lodged. She stated that she was given employment for individual days and sometimes for a few weeks and sometimes not at all. She was asked where these positions were located and she stated that the majority of the time they were in regional locations but some were in Sydney. She confirmed she was given an ABN and payslips prepared by the same person. She was asked if she reported the person. She stated that she has no idea of his whereabouts now and others have had the same experience. The Tribunal asked for evidence of communication with him such as emails or texts messages or Facebook messages which she had previously mentioned and she said that she no longer has these as they were in her old phone and she has changed her phone so she lost the information. The Tribunal asked the applicant if she tried to get his contact details from friends. She said no. She stated that she is part of a chat group but she has found the experience embarrassing and upsetting and has therefore not asked for details on how to contact him.

14. She provided further information on her jobs and clarified that some were located in regional areas but it was in her first year in Australia and she did not understand what was considered a regional area.

15. She made contact with the person when she was in Australia. She met a girl online who passed on Murrays details.

16. She said that he filled in the visa application for her. She said she saw a copy of the application form and it was consistent with what he had provided her with.

17. He did not tell her that it was not accurate, and she said she was not aware that it was wrong and didn’t expect the repercussions she now faces and she is law abiding and is now under enormous pressure.

18. The Tribunal asked the applicant if she has, as she has stated, undertaken three months of regional work and if so where and when and what did she do.

19. She said she has done many odd jobs however she can’t recall the names and they were for 2-3 hours and some were in Sydney. She has done fruit picking namely oranges, grapes and cherries and some babysitting. She has no record of places and dates. She was paid in cash. The Tribunal explained that without records she has no evidence to support that the work met the requirements of the visa.

20. She stated that she wasn’t aware of this at the time and now knows. She explained she has been a support and advisor to new students coming to Australia making them aware of the issues they may face.

    Conclusion on non-compliance

21. The applicant has confirmed that in her application for a subclass 417 Working Holiday Visa (extension) under “details of specified work in regional Australia for three months” she wrote “yes” and provided the ABN 41149928174, postcode 2680 and start date of 14 October 2015 and end date of 21 November 2015 and that this information was not correct. For these reasons, the Tribunal finds that there was non-compliance with  s.101 ‘Visa Applications to be Correct’ by the applicant in the way described in the s.107 notice.

22. The Tribunal accepts the applicant’s confirmation that the information she provided was incorrect and finds that there was non-compliance in the way described in the notice.

    Should the visa be cancelled?

23. 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).

24. 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

25. The Tribunal gives no weight to this factor in the cancellation of the applicant’s visa.  The correct information was never presented by the applicant to the Department but rather ABN 41149928174, postcode 2680 and start date of 14 October 2015 and end date of 21 November 2015. The applicant did not undertake any work with anyone with this ABN, nor did she undertake 3 months of any form of specified regional work between 14 October 2015 and 21 November 2015. She confirmed this and stated that she was not aware of what was considered regional and what was not. Whilst she claims to have worked she has not been able to supply evidence to support this.

    ·     the content of the genuine document (if any)

26. I give no weight to this consideration in favour of the applicant and not cancelling the visa as no other document was supplied or is relevant which is genuine and relates to the issues in this matter.

    ·     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

27. I give no weight in favour of the applicant because the visa would not have been granted to the applicant without this incorrect information being supplied. The applicant was granted the extension to the subclass 417 working holiday visa based in part on meeting the requirements of regulation 417.211 which required the Minister to be satisfied he had undertaken specified work in regional Australia for at least three months full time and had been remunerated for it. Given incorrect information was supplied to support this and the visa was granted on the bases that the applicant had met this criteria it was central to the granting of his visa. 

    ·     the circumstances in which the non-compliance occurred

28. The Tribunal asked the applicant how the incorrect information came to be on the application form. The applicant explained as detailed above that a man called Murray prepared her application and she confirmed that she saw it prior to it being lodged. She stated that she was given casual employment sometimes for a few weeks or just days. She said that she was given an ABN and payslips prepared by the same person however did not report him when she discovered she had been encouraged to provide misleading information and she was unable to provide any documentation regarding her communication with Murray.

29. The Tribunal gives no weight in favour of the applicant and not cancelling the visa based on her explanation about the circumstances in which non-compliance occurred. The Tribunal acknowledges her explanation regarding being new to Australia and not understanding the requirements or what is a regional area, however it is each visa applicant’s responsibility to provide accurate and truthful information and to ensure they understand the requirements of the visa. The applicant is solely responsible for the information she has supplied to the Department. Whilst the Tribunal accepts the applicant may have been misled by another individual she was nonetheless unable to substantiate her claims that she has undertaken work in both city and regional locations. 

    ·     the present circumstances of the visa holder

30. The applicant is currently studying a Diploma of Business. She stated that she would like to complete her qualifications because it will enhance her employment options in Taiwan. She explained that her sister died around late 2015, around the time of these issues occurring and it caused her to be very upset. She stated that she wants a new start. She stated that she too has had health concerns.

31. She has a younger brother who is 30 years of age and he is also in Australia. Her sister was in Taiwan and she died of a flu epidemic when a further 100-200 people died at that time. She was in good health and half of the victims were healthy and they died of lung failure.

32. The applicant was in Australia at the time of her sister’s death. She immediately flew home then she returned to Australia. She had spent a year in Australia and she fell in love with the country and wanted to stay and find a better life and be a better person. She found peace in these places in regional areas. These are proper jobs and she wants to undertake a proper job and pay tax and not undertake cash jobs. She confirmed she has previously packed cherries and picked pineapples.

33. She is currently working in a logistics company since April and she does administration work and warehousing and she also assists with shipping administration for goods going to China.

34. She stated that she has undertaken language learning. She wants to complete a Diploma of Business or Marketing. She commenced the language course which is a prerequisite and the business course commences on 19 August.

35. She has work and study rights on her bridging visa. She explained that she needs a student visa to enable her to study one year for a business and marketing course however she would like to undertake research studies after this.

36. The Tribunal asked the applicant if she could enrol in online studies or return and study in Taiwan. She explained that she needs time and space to find peace to find her value and courage and to face whatever is next.

37. If she had to returns to Taiwan she said that she doesn’t know what she would do and her husband supports her and she wants to have her parents feel reassured about her future.

38. Her husband has plans for his own studies and she is not sure what she will do. She has no courage to return to Taiwan by herself. Her husband is also from Taiwan. He is on a bridging visa A applying for a student visa.  He wants to study and at the time of her review was in the process of applying for the visa. They met in Australia and he studied English and wants to study business. He previously studied mechanics and it would give him two skills.

39. The Tribunal accepts that the applicant has had a difficult and stressful time based on the death of her sister and the pressures of her family and her own health issues. It accepts that the applicant would like to continue studying and a cancellation would be disappointing, and that the applicant and her family have faced some difficult and sad times. It acknowledges that the applicant’s husband is in Australia and would like to continue studying and that a cancellation would mean they would either be separated or he would need to return with her. It acknowledges that these options are not favourable for the applicant. The Tribunal notes that the applicant did not dismiss the options of studying online in Taiwan or studying in Taiwan but prefers not to. Whilst the Tribunal accepts that the applicant’s circumstances remain difficult given the trauma of losing a sister so young and that her husband is in Australia and that she would like to remain in Australia and continuing studying, these factors individually and cumulatively are not considered sufficient enough for the Tribunal to exercise its discretion in favour of the applicant and not cancelling the visa. It gives these factors only minimal weight in not cancelling the visa.

    ·     any other instances of non-compliance by the visa holder known to the Minister

40. She confirmed she has been in strict compliance with visa conditions. There is nothing before the Tribunal to indicate that the applicant has had any other instances of non-compliance and as such the Tribunal gives this factor no weight either way.

    ·     the time that has elapsed since the non-compliance

41. The non-compliance related to claimed work at the end of 2015. Her student visa was cancelled in 2018. The issues in review, namely the claimed work was for a period in time some 5 years ago. There is nothing before the Tribunal to indicate the applicant has misled the Department or the Tribunal since this period in time. Further, the Tribunal accepts that in this period in time the applicant has demonstrated a regret about the situation and a continued commitment to informing other students about the issues she faced. Notwithstanding these factors, the non-compliance is serious and as such the Tribunal gives this factor minimal weight.

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

42. The Tribunal gives this factor no weight as there have been no breaches of the law since non-compliance that the Tribunal is aware of or that the applicant has disclosed.

    ·     any contribution made by the holder to the community.

43. The applicant stated that she loves Australia and it gives her peace and she met her husband here and she does not want to bring shame to him and she apologises and hopes that the visa is not cancelled.

44. She said that she is sociable, and she likes to make friends and despite making mistakes she attempts to assist new arrivals into Australia and inform them about the need to be careful and accurate in their visa applications. She stated that she offers accommodation and advice. She tells them to meet a range of people to get a good perspective and encourages law abiding visitors.

45. She claims to have dedicated herself to the work of teaching Taiwanese backpackers about the law in the hope of getting a visa extension but has got caught up with dishonest people and the work was in vain and she has provided reliable information to them to assist them. The Tribunal asked if there is anything formal and she said she has set up chat groups on ‘Line’. She also holds a monthly Q&A session and promotes Australia. Andrew is one of many. Her friends are aware of her efforts and she share her loves of the country.

46. The Tribunal acknowledges her genuine remorse and her efforts to encourage others not to do the same. The Tribunal gives this factor some weight in favour of the applicant.

47. 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.

    ·     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

48. If the visa is cancelled, the applicant will be unlawful and will need to obtain a bridging visa in order to rectify her status or she may be subject to detention. This is an ordinary consequence of a visa cancellation and as such the Tribunal gives this factor no weight in favour of the applicant and not cancelling the visa.

    ·whether there would be consequential cancellations under s.140

1. There are no other people attached to the applicant’s visa and as such no consequential cancellations. The Tribunal gives this factor no weight in favour of the applicant.

   ·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.   

2. The applicant has stated there is no reason why she could not return to Taiwan and spoke about her future intention to return. The applicant does not have any children and whilst she explained that she met her husband in Australia and would like to remain in Australia whilst her husband completes his studies there is no evidence before the Tribunal which would suggest that her husband is unable to join her in Taiwan or that they could not be apart for a temporary period. Whilst this is not something the applicant stated was acceptable, it is an option available to her. The Tribunal gives this factor minimal weight in favour of the applicant and not cancelling the visa. 

   ·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

3. The applicant stated that her family are not aware of her situation as she does not want them to know she was deceived. She does not want to return to Taiwan. She stated that she has no criminal record in Taiwan and she said her parents will be very upset if they knew she was in trouble. She said that she had no idea she was doing was the wrong thing at the time until she heard others speak and then she realised she was not paying tax on her income and it was not until she lodged the application for the next visa when she was in Taiwan for her sisters funeral and her friends reached out to her and she found out about the potential issues. She stated that her sister died on 28 Feb 2016 and her application was in January 2016.  She arrived in Australia in May 2015.

4. The Tribunal took oral evidence from Mr Chun Fu Yao, the applicant’s husband. He  explained the visa was cancelled around the time their marriage was happening. It came a month after they were married. He stated that his wife was upfront with what happened. She submitted the application when she was new to the county and didn’t understand the ramifications. She did not know how to find a channel to make the change and set things right. 

5. He was asked about the implications of the cancellation on him and a possible bar on her applying for further visas and he stated that an Australian qualification will give them better jobs in Taiwan and he would need to return to Taiwan with her and he would like to remain in Australia and complete his studies.

6. He explained that they have not been married for very long and they want to stay together. He said that he would continue with his course and try to complete the course. Without her presence this is a challenge both academically and in everyday life.

7. He said that she assists him with his studies and keeps him focussed. He explained that he would like to study a Diploma of leadership and management and his agent has made a recommendation for a course in Burwood however he could not recall the name of the course.

8. He confirmed they are financially self-sufficient. He said that he needs the qualifications from Australia to enhance his employment prospects in Taiwan. He was asked whether he could do distance education or undertake studies in Taiwan, and he stated that Australia is an English speaking country and the language skills he will obtain here are a further advantage. He has been in Australia for over three years.

9. He was asked whether he could delay his studies if the cancellation occurred and the applicant was barred for three years from applying for a further visa. He said he could not wait for a period of three years. He said that they are in their mid-30s and it is a significant time to start a family. He stated that he would like to return to Taiwan to start a family and have their studies completed by this point in time. He said that if the visa was cancelled there is a potential they could be separated. He explained that it would have a tremendous impact on their life.

10. Ms Lok confirmed that she has known Ms Lui for three years. He said that she is originally from Macau. She knew her through a mutual friend. She came to support a good friend. She has done a lot which is not required to help people. She has created chat groups and tells people about employment. When she has spare time and sets up gatherings to support newcomers to Australia from Taiwan on working holiday visas. She promotes Australia but also about things they should be aware of when living here. For example temperature change and getting sick.

11. The Tribunal took further evidence from Ms Cheng. She described the applicant as a warm hearted friend and always willing to help people. Her online support of international students is well known and she helps people and works and pays taxes.

12. Ms Cheng stated that she has known Ms Lui for over two years. She came to know her through a club she organised. It is a networking club for recently arrived back packers. She found out about it online and she is the organiser. She read about it through a Taiwanese group. Then the applicant organised a BBQ. There were 200-300 members in the group and 30 people were at the BBQ. They came in a few vehicles and they were all from Taiwan. The objective of the group is to share information on employment opportunities.

13. She has not provided information to the group about her situation and she shares information about work in regional Australia and how to find it. This includes fruit picking opportunities on farms and all aspects of legal employment. They also share information on  transport and how to get there. The group share information on courses and work safety.

14. The applicant’s Migration Agent restated that she is studying and has been undertaking English for three years She is grateful for her friends and their support and Australia is the place she has met them and they see her as a good person and she wants to remain in Australia where she can complete her studies and so that her parents can be certain about her future.

15. The applicant was asked about her medical issues which she raised. She explained that after she arrived in Australia around July her breast had a cyst and it started to bleed.  It was thought to be benign and she had it removed. However she stated that she has been told it is cancerous. The cyst was removed but she was not certain that everything was clear. She said that she has not looked into it further because it happened at the time her sister died and then she met her husband and he gave her a new purpose in life, and she does not want to think about it.

16. She reiterated that she arrived in Australia in May 2015. In July she discovered her cyst and stayed until October 2015. She returned to Taiwan and had it removed. In January 2016 she applied for the extension to her visa of which is the subject of this review and on 28 February 2016 her sister passed away. She explained so much was happening however since then she has been in strict compliances with the conditions on her visa. She stated that the  doctors did not require any further treatment. It has caused a great deal of emotional stress. She was meant to attend a review the following year but with the cancellation of the review she has not done this. She spent her time in Australia has taken out medical insurance and will look into it now.

17. The Tribunal acknowledges that a cancellation of the visa would impact the applicant’s husband and cause some hardship in their relationship should they be separated temporarily. They Tribunal understands that such hardships may present as a consequence of the cancellation of a visa and whilst this is disappointing and extended family may also be disappointed, it is the natural consequence of a cancellation and a temporary situation. Furthermore the applicant and her husband would have a choice regarding whether they elected to remain separated or whether the applicant’s husband would return to Taiwan with her. The Tribunal gives this some weight in favour of the applicant and not cancelling the visa. 

18. The applicant’s health issues were raised with the Tribunal and the Tribunal appreciates that the stress of such health concerns as well as the tragic death of the applicant’s sister are all factors which may impact the applicant’s judgement. Not withstanding this, the provision of false information which leads to a visa being approved is serious. The applicant was able to undertake work and meet her now husband and had the option of remaining in or returning to Taiwan. Given these options, the Tribunal gives these factors minimal weight in favour of the applicant.

19. The Tribunal accepts that the applicant has been a positive influence on other visa holders and friends and is considered a good person. It appreciates that a cancellation would be disappointing to the applicant, her husband, her friends and family. By having to return to Taiwan it may impact on future employment opportunities of the applicant and possibly her husband and that completed qualifications from Australia and the ability to remain and practice their English are all factors which assist in better employment opportunities. The Tribunal sees these as unfortunate but obvious consequences of a cancellation.  It gives these factors minimal weight in favour of the applicant and not cancelling he 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

20. The applicant has acknowledged that the information is incorrect and has apologised.  She stated that she was unaware of the error until some time later after the extension was issued. She stated she did not know how to rectify the situation. She presented to the Tribunal as being earnest and expressed remorse.

21. The Tribunal gives some minimal weight in favour of the applicant and her honesty in regard to the situation and her expressions of remorse, however the provision of this information and ensuring it is accurate and meets the criteria of the relevant visa is her responsibility and hers alone. The applicant presents as an intelligent person and should have familiarised herself with the requirements. Furthermore one of the key criteria for an extension to the visa she applied for was the need to undertake and provide evidence of the relevant work undertaken. Given this is such a key element to meeting the requirements of the extension, it rests with the applicant to ensure the information is correct and notify the Department immediately if it is found to be incorrect.

    Summary

22. The Tribunal has considered all factors raised by the applicant pertaining to why the visa should not be cancelled and how the non-compliance came to be and the consequences of a cancellation. It has considered this evidence and the evidence supplied by the applicant’s witnesses. It has weighed this evidence up and considered it individually and cumulatively and finds that the visa should be cancelled.

    CONCLUDING PARAGRAPHS

23. 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

24. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    .

    Rachel Westaway
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.