O'Mahony (Migration)

O'Mahony (Migration) [2021] AATA 5398 (2 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ciaran Sean O'Mahony
CASE NUMBER:  2108822
HOME AFFAIRS REFERENCE(S):          BCC2020/2243188
MEMBER:Alan McMurran
DATE:2 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Statement made on 02 December 2021 at 2:45pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 –applicant had provided false information –applicant had not worked for the required six months in regional Australia – valuable contribution to community – voluntary work – strong family ties to Australian citizens – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 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 lodged 8 July 2021 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s third Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).
Based on the information provided by or on behalf of the applicant in the visa application, the Department assessed the applicant to have met the relevant criteria for the grant of the visa, including the requirement that while holding his second Subclass 417 visa, the applicant had worked the equivalent of at least 6 months’ full-time work in a specified occupation in regional Australia.
Some months after the third visa application was approved, and the visa granted, the Department carried out an employment check with the applicant’s stated employer, in or about May 2021. That employer informed the Department that the applicant had never worked for that company while he held the second visa.
On 30 June 2021, the Department delegate cancelled the third visa on the basis that the applicant did not comply with s.101(b) of the Act, by providing incorrect information in relation to a Subclass TZ 417 Working Holiday (extension) 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 on 30 November 2021 to give evidence and present arguments. The applicant was represented by a solicitor, who appeared at the hearing and made submissions. Further written submissions were also received from the solicitor on 30 November 2021.
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.
In the present matter, the Tribunal is satisfied that on the information available, the delegate had reached the necessary state of mind to engage s.107, and that the notice issued under s.107 and referred to below, complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is a two-step process, firstly, whether there was non-compliance in the way described in the Department’s s.107 notice, and if so, secondly, whether the visa should be cancelled.
The s.107 Notice
On 17 May 2021, the Department sent a notice under section 107, containing the information in part extracted below, and invited the applicant to make a response within 14 days. The applicant acknowledged at the hearing that he had received the notice by post at his given address, that he ‘panicked’, and had not responded.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act, in the following respects: [extract from Notice]
(a) On 12 July 2020, the applicant applied for a third Working Holiday (Extension) (subclass 417) visa via the Department’s online facility.
(b) In response to the question ‘They have carried out at least six months of specified work’ you answered ‘Yes’.
(c)   In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’ you answered ‘Yes’.
(d) Under the heading ‘Details of specified work undertaken’, you provided the following answers (in part):
Employer Details Legal registered name: EKC
Trading name:  EKC
Australian Business Number (ABN):         52607542503
Employer business address
Address: EKC
Suburb / Town: Nowra
State / Territory New South Wales
Postcode: 2540
Work conditions
Employment type: Direct Employment
Industry type: Construction
Industry type sub-group: Construction
Description of duties Form work -
Forming bridge columns and decks
Pre cast culverts
Waterproofing culverts
Stripping form work
Date from: 13 January 2020
Date to: 12 July 2020
Total days worked: 180
Based on the above information, as well as meeting other relevant criteria, you were granted your Working Holiday (Extension) visa on 29 July 2020.
The Department’s notice further states:
Possible non-compliance with section 101(b)
I consider that you provided incorrect information in your application for a Working Holiday (Extension) visa when you:
● answered ‘Yes’ to the question ‘They have carried out at least six months of specified work’;
● answered ‘Yes’ to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’;
● provided details of claimed employment with EKC, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’.
At the hearing, the Tribunal asked the applicant questions about the contents of the notice, whether he understood its significance and whether the particulars were correct. The applicant confirmed the contents of the notice were correct, that he had never worked for EKC as stated, and that the information provided in the application about employment was false.
The Tribunal asked questions about the actions taken by the applicant in lodging the visa extension application. The applicant gave a history of his arrival in Australia on 4 October 2018, and employment since that time. He explained that after completing his first 6 months working at Ballina in regional New South Wales, he had moved to Sydney. In about August 2020, the applicant changed employers and remained in Sydney, where he has been working continuously up until the time of the hearing. The Tribunal discussed these matters with the applicant in more detail as set out below, and in consideration of the issue whether the visa should be cancelled.
The Tribunal asked the applicant how he came to lodge the application for the extension. The applicant said that in about July 2020, he had decided he wanted to stay in Australia for a further period but realised he had not completed his working requirement in a specified occupation in regional Australia for the additional 6 months and was unable to do so before his second extension visa expired. He discussed the problem with an Irish friend who was also on a working holiday visa and who told him he knew of a contact who could help him meet the requirement. The applicant said he believed the “contact” was a solicitor who could make visa extension applications which would be granted. The applicant was provided an email address which he used to provide all his personal details, information about his background, and his bank details. He said he exchanged six or seven emails with the email address but did not speak to any person, nor was introduced to the person. He said he paid in total $1500 from his bank account for the visa, and which sum included the application fee.
The Tribunal asked whether he saw the application before it was lodged, which he denied, but agreed he received a copy of the application afterwards. He said the information in the application about the employer was not correct, as he had never worked there, but the other details and information was true. He said he had never heard of the employer and did not know how that information was obtained for his application. He agreed the employment information in the application was false and that the particulars alleged and provided in the Department s.107 notice were correct.
The applicant was candid and forthcoming in respect of his admissions concerning the non-compliance, for which he apologised and said he now regrets. The applicant when asked did not dispute any of the contents of the s.107 notice or the facts upon which it relied.
For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the 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). As stated, the applicant did not respond to the notice.
There are prescribed circumstances for consideration 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. The Tribunal has had regard to the Department’s file, the Tribunal’s file and considered the Policy guidance[1] concerning cancellations.
[1] PAM 3
Prior to the hearing, the applicant made several submissions. He provided a copy of the Department’s cancellation decision and his passport, and on 30 November 2021, a written personal statement, a statement from his current employer, submission from his solicitor, and a tender bundle prepared by his solicitor. The bundle included the applicant’s current Irish National Craft Card for Mechanical Automation and Maintenance Fitting, and a skills assessment from VETASSESS for the nominated occupation of Fitter (General) ANZSCO 323211. The Tribunal accepts that the applicant has the skills for the occupation as claimed.
The applicant included 3 personal character references and a letter from the applicant’s current employer, Kenny Constructions, signed by the Operations Manager, dated 25 November 2021.
The Tribunal discussed the applicant’s submissions and considered each of the prescribed matters with the applicant at the hearing. The Tribunal explained the legal effect of s.109 (2) of the Act which provides for the exercise of discretion, and that the visa may be cancelled, noting there are no current circumstances prescribed by regulation where the visa must be cancelled. The Tribunal explained that although discretionary, it was the responsibility of the applicant to provide sufficient information for the proper exercise of the discretion and outline circumstances which might exist in terms of the prescribed criteria in regulation 2.41 and which might lead to a reasonable conclusion as to how the discretion should be exercised. The applicant was asked if there was any additional information he thought might be required by the Tribunal, or whether he required an adjournment to enable submissions in that regard. The applicant indicated he wished to proceed and that he had no further information he sought to rely upon.
The Tribunal then found it convenient in this instance to go through each of the prescribed circumstances in regulation 2.41 with the applicant, by reference to his submitted information, his oral evidence and as set out below. There is no mandated process for consideration of the prescribed circumstances by the Tribunal [2], and which consideration may differ from case to case.
[2] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145
The Tribunal has found convenient in this instance to specify each of the prescribed regulation 2.41 circumstances, considered relevantly and cumulatively by the Tribunal on how the discretion should be exercised, and as discussed with the applicant, as follows.
2.41 (a)
The Tribunal put to the applicant that the correct information is that the applicant had not worked for the required six months in regional Australia, as claimed in the visa extension application. The applicant agreed. The Tribunal places some weight on this consideration.
2.41 (b)
This is not a case involving the content of a genuine document or provision of a bogus document. The Tribunal places no weight upon this consideration.
2.41 (c)
The Tribunal finds it is satisfied that the decision to grant the third Working Holiday (Extension) Subclass 417 visa was based, wholly or partly, on incorrect information, provided for and on behalf of the applicant and as conceded by the applicant as set out above. The applicant agreed at the hearing that the incorrect information was the basis upon which the extension visa was approved by the Department. The Tribunal places considerable weight on this finding.
2.41 (d)
The Tribunal explored the circumstances of the non-compliance at hearing with the applicant. The Tribunal found the applicant gave his answers honestly and truthfully concerning those circumstances.
The Tribunal was satisfied on the applicant’s oral evidence that it was the applicant who made the decision to rely upon a third party, whom he mistakenly believed was a solicitor. The applicant permitted and authorised the third party to make an application for the visa on his behalf and for the payment of a fee. The applicant agreed that he knew at the time of lodgment of the application on his behalf that he had not met the work criteria for the visa to be extended. He said he did not know how the information would be provided but was concerned only to obtain the extension for the visa. He explained that the arrival of the pandemic had made it more difficult to obtain regional employment, however, there was no difficulty for him to obtain work as a fitter in the city. He did not submit that the pandemic was a reason for his failure to find regional employment. He said once he obtained employment in Sydney, he made no enquiries about working regionally or elsewhere. He said he knew he did not meet the requirements for the extension of the visa and it was too late for him to complete the regional specified work requirement. He said there was no further work available from his previous employer in Ballina at the time but that he could continue working in Sydney. He said it did not occur to him to approach the Department about his personal circumstance. He did not seek advice at the time, other than from the person he thought was a solicitor acting on his behalf, via email.
The applicant said he had worked continuously since arriving in Australia in October 2018 as a fitter, commencing work on referral from an Irish friend a week or two after arriving. He worked on infrastructure and roadworks in Ballina as a Fitter, in Northern New South Wales. Arriving in Sydney, from August 2019, he worked firstly on the Parramatta light rail infrastructure project, the Metro project at Martin Place, and the Metro project at Central Railway where he is currently engaged. He said he had worked in the regional area, Ballina, in the specified occupation for 9 or 10 months before relocating to Sydney, even though he was only required to work there for 3 months to meet his initial working visa requirement.
The applicant did not offer any further information about the circumstances surrounding the non-compliance, other than the fact he now sincerely regretted what he regarded as a ‘stupid decision’. The Tribunal accepts the circumstances described by the applicant at the time of the non-compliance. The Tribunal places some considerable weight on this consideration.
2.41 (e)
The Tribunal discussed the applicant’s present circumstances. The applicant said he works 60 to 70 hours per week in his current role as a fitter for Kenny Constructions. He said it is a contractor in the construction industry and employs approximately 100 people. He said he had completed his 4 year training and apprenticeship in Ireland, where he is now authorised by the Irish Further Education and Training Authority for the craft of Mechanical Automation and Maintenance Fitting. He produced his current Irish Merit Craft Card issued 14 February 2017 for this occupation.
The Tribunal was further satisfied the applicant has obtained a successful skills assessment from VETASSESS on 3 September 2021 for his nominated occupation in Australia of Fitter (General). He described his current work as variously carrying out maintenance on machinery, and tunnel welding. His employer describes him as “a highly skilled fitter and a good leader” who has “worked on various large infrastructure projects” and who “has become a valued member of the Kennys workforce”. The Tribunal was further satisfied and in accordance with the testimonials provided, that other than for the matters the subject of this review, the applicant has worked hard while in the Australian community and is a person of good character and standing. He said he has been told by his employer that he has enough work “for the next 7 years”, should he be available. The Tribunal gives some weight to these considerations.
2.41 (f)

The applicant has engaged with the Tribunal and the Department and provided explanations and attended the hearing. The applicant has candidly admitted the incorrect information provided and has been consistent as to the circumstances arising and how it occurred and has presented his submissions and evidence openly and without equivocation. The Tribunal gives some weight to this consideration.
2.41 (g)
There is no information before the Tribunal of any other concerns arising as to the behaviour of the applicant since the lodgment of the application with the incorrect information in July 2020. The Tribunal has no information of any other non-compliance by the applicant. The Tribunal gives some weight to this consideration.
2.41 (h)
The applicant was granted the third Working Holiday ( Extension) visa on 12 July 2020 and 16 months has elapsed since the non-compliance by the applicant. The Tribunal considers the lapse of time as relatively recent and given that the applicant has been on notice since the NOICC on 17 May 2021, and later on 30 June 2021 when the visa was formally cancelled. The Tribunal gives little weight to this consideration.
2.41 (j)
The Tribunal is not aware of any breaches of the law by the applicant since non-compliance and has no information before it in that regard. The Tribunal gives some weight to this consideration.
The Tribunal accepts that the applicant provided information himself for the first and second visa applications and wherein the information was true and correct. The Tribunal accepts that but for the incorrect answers in the third application, as to the specified work performed, the applicant has not provided any other incorrect answers or misinformation and has otherwise been a compliant visa holder.
2.41 (k)
The Tribunal asked the applicant about any contribution to the Australian community since his arrival in October 2018. The applicant explained that since arriving in Sydney in about July 2019, he has been active in the Irish community, particularly with the local Irish Gaelic football club. He said it is a very large community with many local teams and many children involved. He said he has been coaching the children regularly on a voluntary basis, and which has been difficult for him because of his extensive work hours. He said the club conducts an annual camp for the children which he first attended in 2019 over a 2 week period. He said the camp was cancelled in 2020 and 2021 because of COVID. He said there are approximately 200 children involved and he is a committed coach. The Tribunal accepts that the applicant gives up his time voluntarily outside his work commitments to support the club and the children, noting the club has provided the applicant its support for this application. The Tribunal gives some weight to this consideration.
Other relevant factors
The prescribed circumstances as listed under Reg 2.41 are considered above. However, case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case.[3] The Department’s procedural guide also requires its delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. Neither of these considerations apply in this instance. The Tribunal has considered the following factors, which are not prescriptive but which may be considered, in addition to those required under Reg 2.41.
[3] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at
On questioning from the Tribunal, the applicant outlined his family background. The applicant is the youngest of 5 children. His parents in Ireland are aged respectively 62 and 66. His father works part-time in a factory and his mother is unemployed. His parents live alone, and he has 2 adult sisters and an older brother also living in Ireland. The applicant has another older brother who is now an Australian citizen, living in Perth. He said his brother has been in Australia for approximately 10 or 11 years. He also has two cousins who are Australian citizens living in Perth. He said his brother in Perth has an 8 week old child and that he is now the godfather of that child. He said he is unable to visit his brother because of the border closure in Western Australia. He said he saw his brother initially in 2019 when he went to Perth but has been unable to see him recently. He said they regularly talk every week and that he is close to his brother. He said he wants to meet his godson in due course and spend time with him. He said if the opportunity arose, he would work anywhere in Australia including in Perth, but that is presently unlikely because of the pandemic circumstance and border closure. The applicant explained that if he were to return to Ireland, he would be compelled to live for a period with his parents. He said that it would be very difficult for his parents to support him due to their very limited financial circumstances. He said his family members are aware of his visa cancellation. The applicant is concerned about the impact on his family both in Ireland and Australia occasioned by the cancellation of his visa.
The applicant submitted that if he returns to Ireland, he believes he will be unable to re-enter Australia. He will be unable to visit his older brother and his family with whom he is close and meet his godson. A bar imposed will separate them for at least 3 years, and which he says will devastate his family. He submitted that he is really sorry for what happened, that it was a “stupid mistake”, out of character, and that he would never repeat the mistake as he hopes also to make Australia his permanent home. If the visa remains cancelled, it will have a significant impact on his life personally, and for his family. The Tribunal places limited weight on these considerations, while accepting the veracity of those concerns raised by the applicant.
It is not the case that in every circumstance where a visa has been cancelled by the Department that the decision will be affirmed. Each case must be considered on its merits by the Tribunal, which has the advantage of seeing and hearing from the applicant and his representative and is able to form a reasonable view about the applicant’s circumstances, cumulatively with regard to the prescribed matters and the likely circumstances which may flow from its decision. Equally, the Tribunal does not lightly set aside a decision to cancel and must remain conscious of the need to support the integrity of the visa programme and not encourage unscrupulous and unlawful behaviour.
The Tribunal finds in this instance that the evidence as to how the discretion should be exercised, when put in context and cumulatively, is not compelling in favour of exercising the discretion to cancel the visa. The applicant has demonstrated that he is otherwise a person of good character, hard-working, a law-abiding citizen, and with strong family ties to Australian citizens. He has made some community contribution to Australian children of Irish heritage and continues to do so. He is fully employed with good work prospects in a sought after and skilled occupation which is in demand and in respect of which there is a genuine skill shortage, and where he has demonstrated a strong work ethic to perform over a lengthy period in order to achieve personal goals, while making an important contribution working on large infrastructure projects for the Australian community.
These are not reasons to exculpate what was clearly conduct by the applicant intended to mislead and misinform the decision maker and to obtain the benefit of a visa to which the applicant was not otherwise entitled. The Tribunal acknowledges that cancellation entails some very serious consequences including upsetting established community and family ties, physical dislocation and hardship, personal anxiety and cost. Such outcomes are predictable and in some few instances may not be warranted, depending upon the particular circumstances giving rise to the decision to cancel. Presumably, that is why the statutory context does provide for the exercise of discretion, applied favourably to an applicant usually in a very small number of cases where the decision-maker, acting impartially and fairly, comes to the view that the discretion should be so exercised and in accordance with the statutory objective.[4]
[4] For general discussion on the correct approach see 2019 article from the Ombudsman Western Australia, “Exercise of discretion in administrative decision making” as illustrative of some of the difficulties involved.
The proper exercise of discretion is a balancing act, where the facts found against the applicant must be weighed against those facts which are supportive. The Tribunal has had regard to the prescribed circumstances, as well as other factors not prescribed, but which the Tribunal has considered relevant, such as the applicant’s work and family circumstances, his otherwise good character, and importantly the effect of cancellation in this case both on the applicant and on the Australian workforce, which presently requires workers with the applicant’s skills.
The Tribunal finds in this application, there is sufficient objective material available to tip the balance in the applicant’s favour, such that the exercise of discretion should be applied favourably. For all those reasons, the Tribunal is of the view that the discretion as to whether the visa should be cancelled, should be exercised in favour of not cancelling 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. 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.
Alan McMurran
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 5398

2 December 2021

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