Naughton (Migration)

Naughton (Migration) [2021] AATA 5435 (6 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Emma Naughton
CASE NUMBER:  2110128
HOME AFFAIRS REFERENCE(S):          BCC2020/2294431
MEMBER:Nicole Burns
DATE:6 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – there was non-compliance in the way described in the notice –– applicant had provided false information – applicant did not undertake specified regional work in Australia – undertaken critical COVID-19 work – family ties to Australian citizens – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2
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 Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act) on 6 August 2021.
The delegate cancelled the visa because they were satisfied the applicant provided incorrect information in her visa application in certain respects in breach of s 101(b) of the Act. Further, the delegate was not satisfied that the factors in the applicant’s case against cancelling the visa outweighed the factors for cancelling the visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal via video link on 30 November 2021 where she gave evidence and presented arguments about the issues in her case.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by way of a video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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.
The applicant was sent a notice of intention to consider cancellation (NOICC) of her working holiday (extension) visa (lodged and granted on 4 August 2020) on 11 May 2021 which set out the alleged non-compliance with s 101(b) of the Act. She was invited to provide a response which she did in an email dated 25 May 2021 containing a letter and supporting documents.
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 s 101(b) in the following respects.
The notice records that in filling out her visa application form the applicant responded ‘yes’ to the question about whether she had undertaken three months’ specified work as the holder of a first working holiday visa (Subclass 417) and provided the details of her purported employer (AAG Labour Services PTY LTD (ABN 21126217294)). However, subsequently, on 8 September 2020, a staff member at AAG Labour Services contacted the Department (following the delegate initiating an employment verification check) and advised that the applicant had never worked at their business.
In her letter provided in response to this information the applicant agreed that there was non-compliance as set out in the notice and provided several reasons and extenuating circumstances. She states that at the time she decided to provide false information about undertaking regional work to extend her stay in Australia she was working in medical procurement at the IT department of a hospital in Melbourne before the Department announced that critical work could be counted towards second or third working holiday visas. Victoria was in stage four lockdown and she was working full time at the hospital in extremely hectic and busy circumstances, assisting with the global pandemic.
The applicant states she tried to gain employment as a fruit picker in regional Victoria – aware of the 88 days of regional work requirement – but did not receive a response from the companies she contacted. She then decided to contact a person she had heard was able to submit false information regarding regional work. In terms of benefits she can bring to Australia the applicant states that she is 25, has a bachelor’s degree in social work and has four years’ experience in the mental health field, and that she worked in residential care for mental health and disability services before her current position, assisting vulnerable groups. She also works on Sundays assisting a woman in her 30s with severe multiple sclerosis (MS). The applicant adds that she did not think much about what she was actually doing and the rules she was breaking, and she is ashamed and extremely sorry for her actions.
Material the applicant provided to the Department in response to the NOICC included as follows:
·A copy of her qualifications (Bachelor of Arts (Honours) Applied Social Studies (Professional Social Care).
·A copy of her first aid certificate; driver’s licence; working with children check; and Community Care Healthcare Australia (HCA) identity card.
·A copy of a reference letter from her current employer (Austin Health) Terry Papadopoulos, Manager, ICT Services, dated 22 June 2021.
·Copies of a selection of the applicant’s bank statements showing evidence of salary from HCA and Milestone Information Technology (in the period from 19 March 2020 to 19 May 2020).
·VEVO information showing her Subclass 417 visa was granted on 4 August 2020 with an expiry date of 12 November 2021.
·Working Holiday Maker (WHM) program information and updates from the Department.
·A copy of an employment contract between the applicant and Milestone Information Technology (as a client of Austin Health) signed on 5 April 2020 in effect from 6 April 2020 to 9 October 2020 with the option of extension.
·A copy of the applicant’s employment contract extension in effect from 12 October 2020 to 4 February 2021.
·A copy of a letter from Milestone Information Technology dated 4 February 2021 advising the applicant of a change of workplace location from 5 February 2021 to Heidelberg Repatriation Hospital.
·A copy of an email (dated 25 June 2021) and several Facebook messages showing the applicant’s attempts to contact potential employers for regional work.
·Pay advice information, Milestone Information Technology covering the period from 6 April 2020 to 18 April 2021.
·A copy of a reference letter from Steven Mooney, Nua Healthcare Residential Services, Ireland, dated 6 September 2019. In it he confirms the applicant worked for four years for Nua Healthcare Residential Services (from January 2016 to September 2019), a residential care unit in Ireland, supporting adolescents with a variety of severe mental health conditions.
·The applicant’s pay history from Nua Healthcare Residential Services, Ireland.
·A copy of the applicant’s work permit, Victorian State Government, showing her employer as Nurse 4U Pty Ltd. It states the applicant has a permitted role as a disability support worker, signed on 6 August 2020.
·The applicant’s pay history from Nurse 4U Pty Ltd from 23 March 2020 to 23 August 2020.
The delegate was satisfied the applicant had provided incorrect information in the manner particularised in the notice. Having weighed up the discretionary factors the delegate was satisfied the reasons for cancelling the visa outweighed those for not cancelling the visa and the visa was cancelled on 6 August 2021.
On review the applicant provided written statements and supporting documents to the Tribunal, some of which had already been submitted to the Department. Her first statement provided to the Tribunal was the same as her letter provided in response to the NOICC in which she acknowledges she provided false information about her regional work in order to extend her time in Australia (summarised earlier).
In her second statement provided to the Tribunal the applicant admits to making a foolish mistake – which she claims was completely out of character – and asks the Tribunal to give her a second chance. She is concerned for her mental health and that of her partner – an Irish national presently working in Australia (holding a bridging visa and awaiting his sponsored training visa as a construction worker) – if her visa remains cancelled. She notes that if she had waited a week or so she would have been eligible to apply for the second year by counting her work at the hospital which contributed to Australia’s COVID-19 response.
The applicant provided to the Tribunal copies of documents she had provided to the Department as set out earlier as well as the following additional documents:
·A copy of a certificate of achievement showing she completed a procurement course at Austin Health dated 26 February 2021.
·Copies of the applicant’s email correspondence showing her role in helping establish mobile COVID-19 vaccination clinics, dated August 2021, including a vaccination clinic at La Trobe University.
·A copy of an email from the program manager at Pathology Austin Health to several recipients including the applicant dated 5 March 2021 expressing her gratitude for their ICT help in supporting the pathology network expansion in the Loddon Mallee Region.
The applicant also provided a typed statement (undated) to the Tribunal titled ‘Evidence of work completed to contribute towards assisting with the COVID-19 virus’. In it she sets out the various ways she has assisted Victoria’s COVID-19 response through her work at Austin Health for a year and a half during the pandemic as their primary IT medical procurement officer. This included procuring and managing the rollout of IT medical equipment for COVID-19 and SCOVID-19 (suspected COVID-19) wards and solely equipped vaccination and screening clinics across Victoria.
At hearing the applicant agreed there was non-compliance in the manner set out in the NOICC. She confirmed that she did not undertake specified regional work in Australia as indicated in her second Subclass 417 visa application. She explained at the time she was working full time for Austin Health in IT medical procurement, a position she had had since April 2020, and which had scaled up considerably in response to demands to source and provide IT medical equipment for COVID-19 and SCOVID-19 hospital wards at the Austin Hospital and Heidelberg Repatriation Hospital. More recently her role has included helping set up the IT infrastructure and equipment required for vaccination clinics at the hospitals and mobile vaccination clinics in Melbourne and in regional Victorian (including Swan Hill and Echuca).
The applicant said she was aware she needed 88 days’ regional work to meet the requirements for a second working holiday visa yet Melbourne was in stage four lockdown at the time and she was under enormous work pressure, often working overtime. She contacted some potential farm employers via email and phone but did not receive any response. She then heard – via word of mouth – of a person called Lee Hansol who could help her fabricate the required regional work experience. She contacted him via email and there was a quick turnaround.
The applicant said she was very sorry for what she did and whilst not making excuses, wanted to emphasise the enormous work pressure she was under at the time. She said, as indicated in her written submissions, that shortly after she applied for the visa the government announced such work could be counted towards regional work, given it was in the COVID-19 response health sector.
Based on the evidence before it, including the applicant’s oral evidence at hearing acknowledging she did not undertake specified work in regional Australia, the Tribunal is satisfied she provided incorrect information in the application for a working holiday (extension) visa as set out in the NOICC by:
·Answering ‘Yes’ to the question: ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’;
·Providing details of claimed employment with AAG Labour Services PTY LTD, at the section of the application form titled: ‘Details of Specified Work Undertaken’; and
·Answering ‘Yes’ to the declaration: ‘Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa.’
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations), as follows.
The correct information: was that the applicant was not employed with AAG Labour Services PTY LTD for three months as set out in her visa application form and she did not undertake specified work in regional Australia. The Tribunal gives this considerable weight towards cancelling the visa.
The content of the genuine document (if any): This prescribed circumstance is not relevant in this case because the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents).
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 Tribunal finds the decision to grant the applicant a Subclass 417 (extension) visa on 4 August 2020 was based in part on her statement that she had undertaken specified work in regional Australia for three months. The applicant has confirmed that she did not undertake such work and engaged Lee Hansol to help lodge her application providing false information, knowing she would have otherwise not met this core visa criterion. If the correct information had been provided the applicant would not have been granted the visa as she would not have satisfied this key requirement. The Tribunal gives this considerable weight towards cancelling the visa.
The circumstances in which the non-compliance occurred: the incorrect information was provided by the applicant in her Subclass 417 (extension) visa application dated 4 August 2020. In response to the NOICC and her oral evidence at hearing the applicant explains she did so because she was working full time (and more) in IT medical procurement for Austin Health in Melbourne helping provide essential equipment during the COVID-19 response to the Austin and Heidelberg Repatriation hospitals. She claims she tried to find regional work, aware of this requirement to obtain a further Subclass 417 visa, but was unsuccessful. She has provided evidence of her attempts to do so and the Tribunal accepts she tried to find work in regional Australia at the time. The applicant then heard about being able to provide false information in this respect and made the decision to do so, which she now deeply regrets, claiming it is out of character.
The applicant submits that changes to the Subclass 417 visa scheme to count work undertaken in essential COVID-19-related areas (such as health and disability) came into place around a week after she applied for the Subclass 417 visa which meant that her work at Austin Health would have been counted. As indicated in the WHM updates from the Department provided by the applicant, the government did announce that from 19 August 2020, working holiday makers (WHMs) can count critical COVID-19 work in the healthcare and medical sectors undertaken anywhere in Australia after 31 January 2020 as specified work to apply for a second or third WHM visa. Whilst this does not excuse the applicant’s decision to provide incorrect information in her Subclass 417 (extension) visa application, it does confirm that the Australian Government considered such work critical in combating COVID-19.
The Tribunal also considers the applicant’s work with Austin Health to have been (and continues to be) instrumental in helping Austin Health – one of the main healthcare providers in Victoria who is leading the vaccine rollout for the north-eastern Melbourne metropolitan region[1] – adapt, adjust and gear up to be able to respond to the demands of the global pandemic at their hospitals, outpatients services and more recently through COVID-19 vaccination clinics on and offsite, including in parts of regional Victoria. The applicant’s supervisor and Manager of ICT services at Austin Health, Mr Papadopoulos in his letter confirmed that the applicant has been their main IT medical procurement officer in the IT Procurement Department since 5 April 2020 and states that she played a central role in managing COVID-19 response and vaccine rollout at the hospital. He states her work – which he described as outstanding and invaluable – was critical to support Victoria’s health response to the pandemic.
[1]
The Tribunal found the applicant was remorseful in her decision to provide false information about specified regional work in her visa application and considers it was made largely as a consequence of difficulties in securing specified work and pressure to continue work with Austin Health during the pandemic response and vaccine rollout. It is satisfied based on the evidence from her employer that she worked in a critical area during a global pandemic and her role was instrumental in managing Austin Health’s COVID-19 response and vaccine rollout.

For these reasons the Tribunal gives this factor significant weight towards not cancelling the visa.
The present circumstances of the visa holder: the applicant has been resident in Australia for two years, since arriving on 12 November 2019 as the holder of a Subclass 417 visa. At hearing she said initially she worked in residential care for mental health and disability services before her current position, assisting vulnerable groups, via an agency, across different parts of Melbourne. However, when COVID-19 hit she could no longer obtain any work as she did not hold a permanent visa.
The applicant said she started her current job with Austin Health in April 2020. She has a rolling contract and her supervisor has indicated they have secured funding for the position until at least mid-2022. The applicant said she met her partner – Shane – around a month after arriving in Australia. He is an Irish national who came to Australia around four years ago holding a working holiday visa. He has applied for a sponsored training visa (in construction), which is pending, and currently holds a bridging visa with work rights. The applicant said Shane has fallen in love with Australia and hopes to stay here. If her visa remains cancelled he has indicated he will return to Ireland with the applicant; however, the applicant said she would encourage him not to, given his desire to stay here.
The Tribunal accepts the applicant’s evidence about her work history in Australia and her relationship with Shane. It considers her partner would be impacted adversely if her visa remains cancelled, either by returning to Ireland with the applicant and cutting short his plans to live in Australia, or by them separating. Although such a situation is of the applicant’s own making – given she provided incorrect information in her visa application which resulted in the visa being cancelled – the Tribunal gives this factor some weight towards not cancelling 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: in response to the NOICC the applicant acknowledged that she had provided incorrect information in the manner particularised in it. Further, there is no information before the Tribunal to indicate that subsequent to the NOICC being issued, the applicant has not complied with any of her obligations under Subdivision C of Division 3 of Part 2 of the Act. The Tribunal considers this factor weighs towards not cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister: there are no other instances of non-compliance known to the Tribunal.
The time that has elapsed since the non-compliance: the relevant non-compliance took place when the applicant applied for the Subclass 417 visa on 4 August 2020, which is over a year ago. This is not a significant amount of time and the Tribunal gives no weight to this factor when considering cancellation.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance.
Any contribution made by the holder to the community: in response to the NOICC and at hearing the applicant said for around five months in 2020, whilst working at Austin Health, she did weekend work (through an agency) helping a woman in her 30s with severe MS. She did this to keep her skills and experience in social work. Evidence has been provided in the form of her payslips and a letter from the relevant agency. The Tribunal accepts the applicant worked for five months in 2020 assisting a vulnerable member of the Australian community, and more broadly accepts her claims that she wishes to continue to do similar work in the future. It gives this factor some weight towards not cancelling the visa.
Other matters
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.
In this case there are no persons whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa under s 140 of the Act. Further, the applicant does not have any children to give rise to questions about the best interests of any children whose interests would be affected by the cancellation.
The applicant has not made any claims to fear persecution or other forms of harm on return to Ireland which may enliven Australia’s non-refoulement obligations. There is nothing to suggest that Australia’s international obligations would be breached because of the cancellation.
The Tribunal has considered the legal consequences of cancelling the visa. If the visa is cancelled she is likely to become an unlawful non-citizen and potentially subject to detention and removal unless granted a bridging visa. The operation of s 48 of the Act would limit the kind of visas the applicant can apply for in Australia and she will also be affected by public interest criterion 4013 which may prevent her from being granted certain kinds of visas for three years since the date of cancellation. The Tribunal accepts her and her partner’s plans would therefore be interrupted and gives this factor some, albeit limited, weight towards not cancelling.
In terms of hardships the applicant or family members may face if the visa is cancelled, in addition to the applicant’s concerns about the impact on her partner (and herself) as discussed, at hearing she advised that her sister lives in Western Australia (WA) with her husband, and two young daughters. She is expecting her third child soon. The applicant said she is very close to her sister and has managed to visit her in WA three times since she came to Australia, when the border was open. Although the applicant did not mention her sister (and nieces) in her response to the NOICC, the Tribunal accepts her evidence in this regard. It accepts she is close to her sister and nieces and that they would be adversely impacted if her visa remains cancelled and she leaves Australia. The Tribunal considers this factor weighs towards not cancelling the visa.
EXERCISE OF DISCRETION
The Tribunal considers the provision of incorrect information in this case to be significant given the decision to grant the visa was based partly on that information and the applicant engaged a third party to help her provide incorrect information. She was able to obtain a positive migration outcome as a result. Nonetheless this took place during a time of a global pandemic when Melbourne was in stage four lockdown making it difficult to obtain regional work. Additionally, the applicant was working in a critical area supporting IT medical procurement for major hospitals and related systems in Victoria, which was one of the hardest hit areas in Australia with respect to COVID-19. She has continued in that role, helping support Austin Health’s vaccine rollout in Melbourne and parts of regional Victoria, which is crucial in helping stem the impact of the disease. There are no other instances of non-compliance in the applicant’s case, she admitted her wrongdoing in response to the NOICC, and appears genuinely remorseful. Further if the visa remains cancelled her partner and sister (and nieces) in Australia will be negatively impacted. Taking into account these considerations the Tribunal is satisfied that the factors in the applicant’s case against cancelling the visa outweigh the factors for cancelling the visa.
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 not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Nicole Burns
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.

[2021] AATA 5435

6 December 2021

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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