Marchbank (Migration)

Marchbank (Migration) [2022] AATA 3137 (29 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Amie Morton Marchbank
CASE NUMBER:  2118732
HOME AFFAIRS REFERENCE(S):          BCC2021/335925
MEMBER:Mark Bishop
DATE:29 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 29 July 2022 at 1:46pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – lockdown travel restrictions – impact of the COVID19 pandemic – mental health issues – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information in the Working Holiday (Extension) visa application as she did not work at the named employer. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 4 August 2022 to give evidence and present arguments. The applicant provided a copy of the decision record to the Tribunal. The applicant called a witness to give evidence to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with the following section(s) of the Act:
Section 101 Visa applications to be correct:
·A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.
·The applicant provided employer detail, employer business and address, work conditions and period of employment.
The Department initiated employment verification checks with Mat Mining Pty Limited, the business registered under ABN 21103091783, to verify the visa holder’s employment claims. On 13 January 2021, Mat Mining Pty Limited contacted the Department and advised that the visa holder never worked at the business.
For these reasons, the Tribunal finds that there was non-compliance with s 101 of the Act by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
In response to the NOICC (Doc ID number 9225682) the applicant provided a written response (Doc ID number 9225684). In summary the applicant advised (as set out by the delegate) as follows:
·‘I was given a contact from a friend, and it was believed he was someone who worked in immigration who could help me apply for my 3rd year visa even though I had not completed my 6 months farm work.’
·‘This decision was made on a whim without the thought for any consequences and was extremely naive of me.’
·‘I acknowledge this was a very stupid thing to do and I completely regret it and accept full responsibility for my stupidity.’
In response giving reasons as to why the visa should not be cancelled the applicant advised (in addition to the summary provided in paragraph 13 above) as follows:
·She provided a summary of her employment and education history.
·She provided context of her travel to and stay in Australia.
·She provided a summary of her experience undertaking specified Subclass 417 work for her second Working Holiday (subclass 417) visa.
·In March 2020, her employer terminated her employment contract due to the COVID-19 pandemic and she was unable to find regular employment until July 2020. She was therefore not in a financial position to leave Sydney and attempt to secure specified Subclass 417 work. When she was able to do so, she no longer had the validity on her visa to complete six months of specified Subclass 417 work.
·She did not want to return to the United Kingdom (UK) because of the COVID-19 pandemic. She knew it would be detrimental to her mental and physical health. She was also concerned about her employment prospects.
·She made a panicked decision because she was fearful of returning home.
·She engaged a third party to assist her in applying for her third Working Holiday visa.
·She has been suffering anxiety. Visa cancellation will negatively affect her mental health.
·During her stay in Australia, she has formed close friendships and met her partner. She does not want to leave them.
·Her mother has sold her family home and she does not have anywhere to stay if she has to return to the UK.
·She wants to apply for another visa. She is considering participating in a course of study in Australia.
·She is an outstanding individual who is committed to Australia. The skills and qualities she possesses would be beneficial to Australia.
·She proposed that there be a consequence other than visa cancellation for her non-compliance, such as a fine.
In addition to the submissions outlined above at paragraphs 13 and 14 the applicant provided supporting documents (letters of support, email correspondence, income history)
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal is also required to consider both the prescribed matters, where relevant or indicate where not relevant; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:
·whether there would be consequential cancellations under s 140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal now turns to consider the above as follows:
(a) the correct information
The correct information is the visa holder did not undertake specified Subclass 417 work, as defined in the legislative instrument in effect at the time of visa application, for a period of six months; and she did not work for Mat Mining Pty Ltd (ABN 21103091783) between 16 March 2020 and 13 September 2020. Her response to the NOICC indicates that from March 2020 to July 2020, she undertook some short-term temporary work, and from 13 July 2020 onwards, Sydney Catholic Schools employed her. The correct information is significantly different from the information provided in the Working Holiday (Extension) visa application.
The Tribunal gives this aspect significant weight in favour of cancelling the visa.
(b) the content of the genuine document (if any)
There is no genuine document to consider. The Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration.
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The visa holder’s employment details relating to her regional work experience were central to the grant of her Working Holiday (Extension) visa. The visa holder has confirmed the information, regarding her employment at Mat Mining Pty Ltd, provided in her application for the Working Holiday (Extension) visa was incorrect. The Tribunal considers the delegate made the decision to grant the visa based, in part, on this incorrect information, and the visa holder may have received an immigration benefit to which she may not have been entitled.
The Tribunal gives significant weight to this aspect of cancelling the visa.
(d) the circumstances in which the non-compliance occurred
In oral evidence the applicant advised the Tribunal she had not completed some farm work requirements during the period of her 2^nd Working holiday Visa. She made inquiries of friends. A friend of a friend referred to her to a person. She initiated contact with this person. She did not meet him. He was and is a stranger to her. All communication with this person was done via phone or email. She provided him with her details and log in details to the department. This person logged into her account and provided relevant detail to the department. She paid him $2,000. Shortly after this process she received written notice the 3^rd Working Holiday Visa was granted.
In response to the NOICC, the visa holder claims that in March 2020, her employer terminated her employment contract due to the COVID-19 pandemic and she was unable to find regular employment until July 2020. She was therefore not in a financial position to leave Sydney and attempt to secure specified Subclass 417 work. When she was able to do so, she no longer had the validity on her visa to complete six months of specified Subclass 417 work. The visa holder also claims that she did not want to return to the United Kingdom (UK) because of the COVID-19 pandemic. She knew returning to the UK would be detrimental to her mental and physical health and she was concerned about her employment prospects; she made a panicked decision because she was fearful of returning home.
The Tribunal acknowledges that the COVID-19 pandemic created uncertainty and accept that it also disrupted the visa holder’s employment.
The period of Covid-19 requires more detailed consideration.
Covid-19 was a period of immense societal dislocation in Australia. Draconian measures were imposed by various state governments in the name of sound public policy. The impact of many of those measures are still being felt in different parts of Australia. In particular in the case of immigrants and those holding temporary visas separated from family and loved ones there were critical concerns that many did not know how to address. Locking up borders, denying individuals and families the right to leave, restricting access to work, confining individuals and their families to home, imposing stringent public health obligations, and requirements were clearly a feature of the Covid -19 period. Those measures were largely justified by the desire to seek optimum health incomes for the larger population.
Different individuals react to strange circumstances or new circumstances in varying ways. It is not surprising to the Tribunal that the applicant felt isolated, remote, alone and that these feelings may have materially affected her decision making to the extent that she acted in a most unwise manner.
The applicant was responsible for the provision of false information to the department. In some respects the applicant engaged in a subterfuge. Prior to coming to Australia she worked for 5 years as a human resources person in Scotland. An experienced human resources person would appreciate the necessity to comply with government policies and not engage in behaviour that jeopardised the future.
The Tribunal has paid close attention to the applicants’ statement in paragraph 14 above that “In March 2020, her employer terminated her employment contract due to the COVID-19 pandemic and she was unable to find regular employment until July 2020. She was therefore not in a financial position to leave Sydney and attempt to secure specified Subclass 417 work. When she was able to do so, she no longer had the validity on her visa to complete six months of specified Subclass 417 work. She did not want to return to the United Kingdom (UK) because of the COVID-19 pandemic. She knew it would be detrimental to her mental and physical health. She was also concerned about her employment prospects.”
However times of change with restrictions and limitations placed upon all is not sufficient reason not to comply with the law and seek appropriate advice. All during the period of Covid the relevant department continued to operate and provide service and advice to the wider public. All during the period of Covid institutions like the AAT continued to operate and provide service to visa holders and the like. All during the period of Covid online access to obtain information from the department was readily available. All during the period of Covid the applicant had the ability to obtain and put into practice the correct advice.
The Tribunal has considered the applicants submissions and has considerable sympathy for her in the circumstances that existed at that time.
The Tribunal considers the provision of incorrect information in an application for a visa to be a very serious matter.
The Tribunal gives the existence of Covid-19 at that time, the applicant’s fear of contracting the virus if she should remove herself to a more unsafe environment and the circumstances in which the non-compliance occurred no weight in favour of not cancelling the visa.
(e) the present circumstances of the visa holder
The applicant acknowledges that it was her mistake for not verifying her information before it was submitted to the Department. The applicant was apologetic about her actions and wishes to remain in Australia with the intention to continue working in her current occupation.
The applicant advised the department in a written submission dated 23 November 2021 she was working as a credit controller for a large law firm in Sydney. She is a university graduate with degrees in international business and worked in human resources for 5 years in Scotland. She had trouble finding and keeping work in regional Australia. She completed her 88 days work as part of her 2^nd Working holiday Visa. In January 2020 her 2^nd Working holiday Visa was about to expire. From March 2020 she lived and worked in Sydney and in the period March 2020 to July 2020 gained only short term work. She did not leave Sydney in this period. From July 2020 she had a 6 month contract with Sydney schools. She remained in this firm for another 6 months. In July 2021 she was required to leave her position.
The applicant engaged a third party to assist her in applying for her third Working Holiday visa. For full detail see paragraph 25 above. She has been suffering anxiety. Visa cancellation will negatively affect her mental health. During her stay in Australia she has formed close friendships. She does not want to leave them. Her mother has sold her family home and she does not have anywhere to stay if she has to return to the UK. She wants to apply for another visa. She is considering participating in a course of study in Australia. She is an outstanding individual who is committed to Australia. The skills and qualities she possesses would be beneficial to Australia.
The applicant has provided the background to her retention of an agent who acted improperly. The Tribunal has considered the lengthy period since the decision of the delegate. The Tribunal has considered the applicant’s submissions that address her continuing employment, her value as an employee, her personal connections and relationship and degree of personal support and psychological support she seeks in the future.
The applicant has established for herself a relatively normal life in Australia. She wishes to work again. Her employment record she submitted is exemplary. She provided a copy of a statement from ‘Change recruitment’ that states “We are aware that her Visa has been cancelled, but we implore you to reconsider your decision as it took Change Recruitment three months to find Amie and considerably more time for her to integrate and gain the trust of our clients & candidate base. The Recruitment market, like all others right now is incredibly competitive & as a start-up – attracting people like Amie to the business is very difficult. We could be left in a position where our clients are left un-serviced, and our bottom line is seriously affected as they take their business elsewhere.”

On 14 July 2022 she was referred to a psychology clinic for ‘opinion and management’. The referral notice said ‘no past history’ is recorded. Her mental health plan patient assessment as submitted to the Tribunal sets out presenting issues as ‘anxiety, stress insomnia’ and advises the applicant will need to take action for ‘better coping’. In oral evidence the applicant advised the Tribunal she had not been receiving psychological counselling, psychiatric counselling or like medical health counselling from a medical professional.
The Tribunal gives these circumstances no weight in favour of the applicant.
(f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
The Tribunal has considered the applicants’ submission. The applicant is now aware of her responsibility to act in a manner consistent with the law. The Tribunal accepts the applicant has not demonstrated any further behaviour of concern. In essence the applicant made a serious mistake, she regrets that mistake, she regrets the consequences of her own poor decision making and she now advises she will abide by the law going forward.
The Tribunal accepts this position of the applicant. It is logical and sensible. To say otherwise would be absurd. The applicant now complies with the law and her subsequent behaviour is consistent with that of a person holding a temporary visa. It is the behaviour of expected of law abiding citizens and non-citizens alike.
The Tribunal gives this aspect minor weight in favour of the applicant.
(g) any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is not aware of any further instances of non-compliance. The Tribunal gives this aspect neutral weight.
(h) the time that has elapsed since the non-compliance
The instance of non-compliance was 24 to 30 months ago. The applicant has continued to live and work in Australia. There is no evidence before the Tribunal to suggest the applicant has been anything other than a law abiding non-citizen in this period of time. This standard of behaviour is expected by all residents of and in Australia. It is not the exception. It is the norm.
The Tribunal gives no weight to the elapse of time.
(Note: there is no consideration (i) in the current legislation)
(j) any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant has not engaged in any further breaches of the law and there is no evidence of any further or additional non-compliance. Temporary visa holders or those seeking preferment in Australia (like all others) are expected to conform to the law at all time.
(k) any contribution made by the holder to the community
The applicant has provided copies of character references that outline employment detail, her value as an employee, ongoing friendships and her contribution to those relationships and the nature of her character.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
The Tribunal is not aware of any persons in Australia whose visas would, or may, be cancelled consequentially.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
The applicant advised the Tribunal she does not have any children.
Whether there are mandatory legal consequences to a cancellation decision.
If the visa is cancelled, the visa holder will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart Australia, as he would no longer hold a valid visa.
The visa holder may be eligible to apply for a Bridging E (subclass 050) visa, which would allow her to remain lawful in Australia until the outcome of his pending application.
A bar under section 48 of the Act will also be imposed, limiting the visa holder’s options to apply for further visas from within Australia. Furthermore, she will also be affected by Public Interest Criterion 4013, where she may be prevented from being granted certain types of visas for a period of three years from the date of visa cancellation.
The applicant has created the circumstances where there may be consequences to her own unwise decision making. Conditions of entry into Australia and conditions often attached to temporary visas are imposed in a lawful manner consistent with the dictates of the parliament. Whilst resident in Australia temporary visa holders are expected to conform with conditions attached to their visa and in accordance with the law. Sources of advice are many and varied. Any of the consequential and mandatory legal consequences as outlined above will occur only because of the actions of the applicant.
The Tribunal accepts that if the applicant’s visa is cancelled she could be liable to detention and subsequent removal from Australia. However, there is no information before the Tribunal to indicate the applicant would be unable or unwilling to voluntarily depart Australia.
The Tribunal gives this aspect minor weight in favour of 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.
The applicant advised she was not married and not in a de facto relationship. She does not have any children. Her parents live in the UK. Her family home in Bathgate was sold around August 2021. The applicant advised the Tribunal she was distant from her family and the family relationship was strained.
The Tribunal appreciates that the cancellation of the applicant’s visa may cause financial, psychological and emotional hardship to the applicant.
The Tribunal is of the view the applicant was an informed and knowledgeable participant in a scam on the department and paid a significant fee that resulted in the grant of a 3^rd working Holiday Visa in circumstances that were not warranted.
The applicant submitted references to similar case decisions and said those cases were similar to hers in that
·The visa applicant provided incorrect information in relation to specified regional work in Australia
·The visa applications Working Holiday Visa was cancelled
·External factors such as the COVID-19 pandemic affected the visa applicant in obtaining regional work
·The visa applicant’s employer will be impacted
·The visa applicant takes full responsibility for the incorrect information provided
·The visa applicant has provided mitigating and compelling circumstances for which the visa should not be cancelled
·The visa applicant has no other instances of non-compliance
·The visa applicant has established strong ties in the Australian community
The Tribunal has reviewed the cases provided by the applicant. The review application is not an appeal matter. It is a new hearing. It is a de novo application and the Tribunal brings a fresh mind to the review application. Prior decisions of the Tribunal are not binding on the Tribunal. Each review application is determined on merit.
There are no other relevant matters before the Tribunal.
There will not be any consequential cancellations under s 140.
There are not any children whose interests might be affected.
The applicant’s removal from Australia (should it occur) would be lawful and not give rise to consideration of Australia's non-refoulement or family unity obligations.
CONCLUDING PARAGRAPHS
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Senior Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 3137

29 July 2022

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