O'Hagan (Migration)

O'Hagan (Migration) [2021] AATA 4149 (30 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Kerrie Anne O’HAGAN
CASE NUMBER:  2104659
HOME AFFAIRS REFERENCE(S):          BCC2020/2127047
MEMBER:Nathan Goetz
DATE:30 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Working Holiday (Extension) (Onshore) (subclass 417) visa.

Statement made on 30 August 2021 at 2:45pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday (Extension) (Onshore)) – incorrect information in extension application – specified work for 3 months while holding first working holiday visa – departmental checks show no record of work – claim to have been unaware of incorrect information – application completed and lodged by another person – current work in sector with skill shortage – consent to decision without hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 359(2)
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Working Holiday (Extension) (Onshore) (subclass 417)) visa under s.109(1) of the Migration Act 1958 (the Act).
BACKGROUND
The applicant identifies as 24-year-old female citizen of the Republic of Ireland who was born in Northern Ireland, United Kingdom.
On 24 July 2019 she arrived in Australia holding a working holiday visa which ceased on 24 July 2020.
On 7 May 2020 she was granted a second working holiday visa. This visa was to cease on 24 July 2021.
On 16 March 2021 the delegate notified the applicant of the department’s intention to consider cancelling the applicant’s second working holiday visa (the ‘NOICC’).
On 29 March 2021 the applicant responded to the notice.
On 9 April 2021 the delegate cancelled the applicant’s second working holiday visa under s.109 of the Act on the basis that the contravened s.101(b) of the Act.
On 13 April 2021 the applicant applied to the Tribunal for review of the cancellation decision. On 20 April 2021 the applicant was granted a bridging visa to regularise her migration status in Australia for the duration of her review application.
On 12 August 2021 the Tribunal wrote to the applicant and invited her to appear at a Tribunal hearing on 30 August 2021 to give evidence and present arguments in relating to the issues arising in relation to the decision under review.
On 13 August 2021 the Tribunal wrote to the applicant under s.359(2) of the Act and requested that she provide information to the Tribunal. The letter advised the applicant that if she did not provide this information by 27 August 2021 the Tribunal hearing listed on 30 August 2021 would be cancelled and the Tribunal would make a decision on the review application without allowing or enabling the applicant to appear at the Tribunal.
On 27 August 2021 the applicant wrote to the Tribunal and advised that she would not appear at the Tribunal hearing and requested that the Tribunal decide the review application ‘on the papers.’
THE STATUTORY FRAMEWORK
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.
If the Tribunal is satisfied that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, then it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
CONSIDERATION OF CLAIMS AND EVIDENCE
Visa application form
So far as relevant to this review application, in the visa application form the applicant declared that she worked for Robert Logozzo at the Trustee for Marvoe Farming and Marketing Unit Trust trading as The Sweet Life. The business is located in the Northern Territory and this work was ‘Harvest work’ in ‘Tree farming and felling’ subgroup of the agriculture, forestry and fishing industry type. This work was direct employment. The applicant claimed she worked there from 20 January 2020 until 5 May 2020. She worked a total of 639 hours over 105 days.
The applicant declared that that the information contained in the visa application was complete and correct. She declared that she had completed 3 months of specified work as the holder of a first working holiday visa.
NOICC
The delegate wrote to the applicant on 16 March 2021 regarding the Working Holiday (Extension) (Onshore) (subclass 417) visa which was granted on 7 May 2020. The letter detailed that the delegate considered that the applicant did not comply with s.101(b) of the Act and that as a result, the visa may be cancelled under s.109 of the Act.
The particulars of the possible non-compliance were detailed as follows:
On 7 May 2020 you applied for a Working Holiday (Extension) (Onshore) (subclass 417) visa. As part of your electronic visa application form, you provided the following answer (in part) under the heading “Details of Specified Work Undertaken.” The delegate detailed the employment with The Sweet Life.
The delegate wrote that on the basis of this information, as well as meeting other relevant criteria for the grant of the visa, the applicant was granted a Working Holiday visa on 7 May 2020.
The delegate went on to detail that departmental checks conducted with the trustee for Marvoe Farming and Marketing Unit Trust, trading as The Sweet Life on 16 August 2021 confirm that they have no record of you working for them. The Trustee for the Marvoe Farming and Marketing Unit Trust confirm hat the last time there were workers at the farm was in October 2019.
On the basis of this, the delegate considers that the applicant had not complied with s.101(b) of the Act because You indicated in your Working Holiday visa application that you worked for the trustee for Marvoe Farming and Marketing Unit Trust, trading as The Sweet Life, ABN 40321958545 from 20 January 2020 to 5 May 2020. This is contrary to the information before the department that confirms the trustee for Marvoe Farming and Marketing Unit Trust have no record of you working for them.
The delegate concluded that the applicant had not complied with s.101(b) of the Act because it appeared the applicant had provided incorrect answers in the visa application. The letter noted that if the applicant did not comply with s.101(b) of the Act, the visa may be cancelled under s.109 of the Act.
The delegate noted that before any decision can be taken on whether to cancel the visa, the Act gives the applicant the opportunity to comment on the possible non-compliance and to give a written response why the visa should not be cancelled. The delegate noted that the applicant had 14 calendar days to respond.
The response to the NOICC
The applicant responded to the delegate in writing on 29 March 2021. She wrote:
I did not know anything about false documentation. A person lodged the application on my behalf. I did not give any permission for fake documents to be lodged. I was very surprised to read this notice you emailed me.
I agree that my visa may be cancelled but please do not cancel my visa. I do not want you to cancel my visa because I work in childcare, classed as a critical sector during this corona virus outbreak. My job as an early childhood teacher is on high demand in this country. My company do not want me to leave as they need my skill set and would struggle greatly to find a replacement. I can provide proof of my qualifications that enable me to hold a job in this area of skilled workforce, and proof of experience as an early childhood teacher in Australia. Furthermore, I do not wish to travel during this time because of covid, I do not want to risk bringing back this virus to my vulnerable family members whilst travelling. Please don’t cancel my visa.
Delegate decision
The delegate noted and summarised the applicant’s response to the NOICC and indicated the response had been considered.
The delegate provided an individual assessment of various aspects of the factors for cancellation of the applicant’s visa, including the content of the genuine document (if any), whether the decision to grant the visa 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 their obligations under Subdivision C of Division 3 of Part 2 of the Act, any other instances of non-compliance by the visa holder, 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 contributions made by the holder to the community, whether any persons in Australia whoe visa 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, whether there were any mandatory legal consequences to a cancellation decision, and any other relevant matter.
The delegate’s assessment was that the ‘correct information’ was that she did not in fact complete the specified work as claimed in the visa application form. By providing the ‘incorrect information’ the delegate considered that the applicant circumvented the proper assessment of the visa application, and that as a result, the applicant may be holding a visa she is not entitled to hold.
The delegate determined that in view of the findings and assessments for each of the various aspects as above to cancel the visa.
Review application
Having considered the applicant’s response to the NOICC, the Tribunal was unsure whether the applicant was in fact claiming that she did complete the specified work as she claimed to have not lodged ‘false documents’ and that someone else lodged the visa application on her behalf. The Tribunal was unsure if the applicant believed that the delegate was referring to a a false document that had been submitted in the visa application, and the applicant maintained that she had completed the work she claimed to have completed. Noting that the applicant had also claimed that someone else had submitted the visa application on her behalf, the Tribunal wanted to know more about how that visa application came to be completed.
With this in mind, the Tribunal wrote to the applicant on 13 August 2021 to obtain information from the applicant. The Tribunal asked the applicant to provide information to address the following:
·You were granted the first working holiday visa on 1 February 2019 and arrived in Australia on 24 July 2019 holding that visa. That visa ceased on 4 July 2020 and you did not depart Australia. Why did you not depart Australia when your first working holiday visa ceased?
·In your response to the department’s notification that they were considering cancelling the second working holiday visa granted to you on 7 May 2020, you wrote that: “I did not know anything about false documentation. A person lodged the application on my behalf. I did not give any permission for fake documents to be lodged.” You are directed to provide the Tribunal with the full name, address, telephone and email address of the person who lodged that visa application on your behalf.
·Your second working holiday visa contains a copy of your British passport. Please advise the Tribunal how that passport came to be included in your second working holiday visa application form, and detail what was involved in completing the second working holiday visa application and applying for your second working holiday visa
·Have you ever had the telephone number [redacted] registered to you? If no, who is that telephone number registered to? Have you ever used the telephone number [redacted]?
·Is your email address [redacted]? Have you previously used this email address? If this is not your email address, who does that email address belong to?
·Did you work for ‘The Trustee for Marvoe Farming and Marketing Unit Trust’ trading as ‘The Sweet Life’ ABN 40321958545 between 20 January 2020 and 5 May 2020 as claimed in your second working holiday visa application form?
The Tribunal was particularly interested in the telephone number and email address detailed in the above request for information as those were included in the applicant’s visa application form.
The response to the request for information was due by 27 August 2021. The Tribunal advised the applicant that the response needed to be in writing in statutory declaration form. The applicant emailed the Tribunal on 27 August 2021 as follows:
I was given an email address and told to contact them for a visa. I was not aware they would lodge false documents. I was given that email address from someone else. I am a victim of a fraudster and would like you to make a decision based on this.
Furthermore, I have been working as an Early Childhood Teacher, a job which has been flagged as an occupation currently in short supply. I have been able to fill the skill shortage in this crucial industry of childcare and education, especially during the coronavirus outbreak. My company have been unable to source a suitably skilled Australian to fulfil this role and thus have provided a letter of engagement stating all duties I have caried out. Please see attached letter of job role.
I will not be attending the hearing on Monday the 30^th of August, please make a decision based on these papers.
The applicant included a letter dated 16 August 2021 addressed to the department from Vicky Patience who was identified as the operations manager of The Green Elephant Learning Services. The letter detailed that the applicant is employed by that organisation and has been employed since 14 January 2021 to date. It noted the duties she will perform as an Early Childhood Teacher. The letter detailed that the applicant was engaged because that business had not been able to source a suitably skilled Australian to fulfil this role after placing advertisements for this position on SEEK, Indeed, JobActive, as well as social media platforms.
The applicant’s response to the request for information was not satisfactory. She did not tell the Tribunal the name and contact information of the person she claimed to have used to complete the visa application form, or address the Tribunal’s request for information concerning the telephone number, email address, or whether she had actually worked for the Trustee for Marvoe Farming and Marketing Unit Trust’. Nor did she provide something as basic as information about why she did not leave Australia when her first working holiday ceased.
FINDINGS AND REASONS
The questions for the Tribunal are whether there was non-compliance as described in the s.107 notice and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal was 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) of the Act, namely that no incorrect answers are to be given or provided.
The incorrect answer was particularised as the applicant’s claim that she had completed work with the ‘The Trustee for Marvoe Farming and Marketing Unit Trust’ trading as ‘The Sweet Life’ ABN 40321958545 between 20 January 2020 and 5 May 2020 when the correct answer was that she did not work for them.
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. It was tolerably clear that the issue was the fact that the applicant claimed to have worked and completed ‘specified work’ with ‘The Trustee for Marvoe Farming and Marketing Unit Trust’ trading as ‘The Sweet Life’ when she had not in fact done so. The applicant has never explicitly said that she did not do this work, but nor has she explicitly said in response to the NOICC or to the Tribunal’s letter requesting information that she did, in fact work for this employer as claimed in the visa application form.
The Tribunal is satisfied that the applicant’s silence about this and reference to another person providing bogus documents demonstrate that the applicant was well aware that her claimed employment in the visa application was false, and that the information that the department had, namely confirmation from the Trustee for Marvoe Farming and Marketing Unit Trust’ trading as ‘The Sweet Life’ that the applicant had not worked for them, was the in fact, he correct information.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
The Tribunal is satisfied that the applicant’s Subclass 417 (Working Holiday) visa should be cancelled. In the Tribunal’s judgement, to do anything other than cancel the applicant’s visa would make a mockery of the integrity of Australia’s migration laws.

The Tribunal has considered the prescribed matters under Regulation 2.41.
The correct information
The correct information is that the applicant did not do the work as claimed. The Tribunal notes that this is not the case where the applicant fell short of an hour or two of specified work from an employer and fabricated a small number of hours to meet the requirements for the visa. It is far worse that than that. In the present case, the applicant has fabricated the entirety of her claimed work and fabricated her employment.
The Tribunal has taken this into account when dividing whether to cancel the visa.
The content of the genuine document (if any)
This consideration is clearly designed to address a situation where a document has been altered or fabricated. In the present case, no fraudulent document was produced.
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
It is essential for the grant of a Working Holiday (Extension) (Onshore) (subclass 417) visa that the applicant completed 3 months of specified work in the applicant’s earlier Working Holiday (subclass 417) visa. In the present case, the Tribunal is satisfied that but for the applicant providing the incorrect information, she would not have been granted the visa.
The Tribunal has taken this into account when dividing whether to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant provided no explanation for her circumstances in which the non-compliance occurred other than to suggest that another person was responsible. She did not, for example, claim she was under any stress or in a predicament during the time the false employment history was given. Nor did she provide any detail about how the visa application came to be completed, despite being asked to do so. For example, she did not claim that she had completed other work and that the person who lodged the visa application on behalf of the applicant committed some form or data entry error and entered someone else’s work history instead of the applicant’s own work history. Given the absence of the applicant providing circumstances in which the non-compliance occurred, the Tribunal concludes that the applicant simply did no work at all during her earlier visa and was prepared to fabricate her work history to get another visa.
The Tribunal has taken this into account when deciding whether to cancel the visa.
The present circumstances of the visa holder
The applicant has written that she is currently employed in Australia. She claims that her work in childcare is in high demand. She does not want to return to the United Kingdom because of the COVID-19 pandemic. The Tribunal accepts that as a result of the visa cancellation, she will lose her employment and that she may be required to return to the United Kingdom while the pandemic continues.
The Tribunal has taken this into account when deciding whether to cancel 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
Subdivision C of Division 3 of Part 2 of the Act is headed Visas based on incorrect information may be cancelled. Subdivision C covers s.97 to s.155 of the Act. Regarding her obligations under Subdivision C, The Tribunal notes that the applicant did not volunteer to the department that she provided incorrect information in her visa application form. It was only after the applicant was given the NOICC that she provided some acknowledgement, albeit limited to a denial that she was responsible for providing false documents and that someone else was responsible for the visa application.
The Tribunal has taken this into account when deciding whether to cancel the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence that the applicant has failed to comply visa conditions, or that she has otherwise provided incorrect information to the department. However, the Tribunal notes that the applicant did not comply with the Tribunal’s request for information under s.359(2). She did not provide the detail asked for, nor was it provided in the required format.
The Tribunal has taken this into account when deciding whether to cancel the visa.
The time that has elapsed since the non-compliance
The non-compliance occurred when the applicant applied for the visa on 7 May 2020. The applicant was granted the visa the same day. The issue was brought to the attention of the applicant in March 2021 by way of the NOICC. Following cancellation of the visa by the delegate in April 2021 and the applicant applying for review of the cancellation decision with the Tribunal, some 15 months have passed since the non-compliance occurred.
The Tribunal has taken this into account when deciding whether to cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence that the applicant has breached any laws since the non-compliance of May 2020.
The Tribunal has taken this into account when deciding whether to cancel the visa.
Any contribution made by the holder to the community
The only contribution to the Australian community that the applicant advanced was her employment in childcare. The Tribunal accepts that the applicant has made a contribution to the community through her work and her role as a taxpayer.
The Tribunal has taken this into account when deciding whether to cancel the visa.
The Tribunal has also considered the factors to be considered under the ‘General visa cancellation powers’ policy document from the department.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
There is no evidence that any person in Australia would or may have a visa cancelled as a result of the applicant having her visa cancelled.
Whether there are mandatory legal consequences to a cancellation decision.
As a result of the applicant’s visa being cancelled, the Tribunal accepts that the applicant would be liable to the operation of s.48 of the Act. This provides that a person who had a visa cancelled under s.109 is limited in the visas for which the applicant may apply. However, this limitation only applies if the applicant remains in the migration zone. This prohibition lifts once the applicant leaves Australia.
The Tribunal also accepts that as a result of the visa being cancelled, the applicant will become an unlawful non-citizen after the bridging visa associated with the Tribunal review application is finalised. This may mean that the applicant will be liable to immigration detention as an unlawful non-citizen, pending removal from Australia. Given that the applicant provided what can only be described as false information in the visa application, the Tribunal accepts that this is a real chance for the applicant. The Tribunal may be very wary about granting the applicant a bridging visa on departure grounds, or a bridging visa if she applies for any of the visas prescribed following a visa cancellation.
The Tribunal has taken this into account when deciding whether to cancel the visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
The applicant provided no information to suggest that Australia would or may breach any international agreements as a result of the applicant’s visa being cancelled.
Any other relevant matters
Although not raised by the applicant, the Tribunal accepts that the COVID-19 pandemic means that there are limited flight opportunities to return to the United Kingdom and that she may find herself stranded in Australia without any visa and consequentially no rights to work or any other means to meet her living expenses. The Tribunal notes that in this case, the applicant may end up in immigration detention for a period of time that would be longer than normal.
The Tribunal has taken this into account when deciding whether to cancel the visa.
CONCLUSION
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act.
The Tribunal has considered whether the visa should be cancelled. The Tribunal concludes that it should uphold the decision to cancel the visa because to do otherwise would make a mockery of Australia’s migration system.
The applicant would not have been granted the visa had she provided the correct information, namely that she had not done the claimed specified work through her fabricated employment. While the Tribunal accepts that consequences such as loss of employment, limited visa opportunities (if she remains in Australia), potential immigration detention, and that this appears to be an isolated incident, if the Tribunal did not uphold the visa cancellation decision, it would condone the applicant’s dishonesty.
Further, the applicant’s subsequent actions by not providing the Tribunal the information it asked for, suggest that the applicant is not remorseful for her past conduct and that she was party to the false information being put in her visa application. If she was remorseful and not party of the false information, the Tribunal is satisfied that the applicant would have provided the Tribunal with the information it asked for. Having regard to all the relevant circumstances, the Tribunal concluded that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Working Holiday (Extension) (Onshore) (subclass 417) visa.
Nathan Goetz
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 4149

30 August 2021

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