TSE (Migration)

[2018] AATA 4180

TSE (Migration) [2018] AATA 4180 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hei Po TSE

CASE NUMBER:  1817923

DIBP REFERENCE(S):  BCC2018/64143

MEMBER:R. Skaros

DATE:27 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 27 August 2018 at 3:01pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – incorrect information with a previous application – spouse’s previous Working Holiday visa – migration agent provided incorrect employer details – hardship for the applicant’s marriage – hardship for the spouse’s employer – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109

Migration Regulations 1994, 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 457 visa on 9 November 2015 on the basis of being a member of the family unit of Mr Chun Wai Chan. On 11 March 2016, the applicant was granted the 457 visa as a secondary visa holder.

3. The Department received information indicating that the applicant may have provided incorrect information in relation to an application for a previously held visa, namely the Working Holiday (Extension) Subclass 417 visa, which she had applied for on 14 July 2015 and was granted on the same day.

4. On 30 May 2018, the Department issued to the applicant a notice of intention to consider cancellation under s.109 of the Act (the notice), which set out the particulars of the possible non-compliance. The applicant’s representative provided submissions and supporting documents in response to the notice. The documents included a personal statement from the applicant, an extract of a Westpac bank account statement in the name of Kwan Chan and a statement from Ms Jenny Po, the Director of Billabongs Restaurant, where Mr Chun Wai Chan is employed. 

5. The delegate, after considering the response, decided to cancel the applicant’s secondary Subclass 457 visa on the basis that the applicant had provided incorrect information in her Working Holiday (Extension) Subclass 417 visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. The Tribunal received a copy of the delegate’s decision record with the application for review. The Tribunal also received submissions from the representative addressing the findings made by the delegate and further supporting documents, including character references and letters of support for the applicant and her spouse.

7. The applicant appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Mr Chun Wai Chan. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

9. 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

10. 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.

11. 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.

12. 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?

13. 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 as follows:

    Particulars of the possible non-compliance

    I consider that there has been non-compliance with the following section of the Migration Act:

    Section 101     Visa applications to be correct:

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

    (b) no incorrect answers are given or provided.

    The breach of section 101(b) applies to a visa that the visa holder previously held, namely Working Holiday (Extension) (subclass 417) visa granted on 14 July 2015. Section 107A of the Migration Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.

    Section 107A:

    The possible non-compliances that:

    (a)may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)if so specified, can constitute a ground for the cancellation of that visa under section 109; include non-compliances that occurred at any time, including non- compliances in respect of any previous visa held by the person.

    By operation of s99 of the Act, 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.

    Section 107A provides that failure to comply with section 101(a) and/or 101(b) of the Act in connection with a previous visa application may be grounds for cancellation of the current visa. As incorrect information was provided in the application for the Working Holiday (Extension) (subclass 417) visa, it may result in the visa holder’s current Temporary Work (subclass 457) visa granted on 11 March 2016 being liable for cancellation.

    Answers provided in your visa application

    On 14 July 2015 you lodged an application for a Working Holiday (Extension) (subclass 417) visa via the Department’s online facility.

    As part of the application, you completed an electronic application form and provided the following answers:

    In response to the question “Have you undertaken specified work in regional Australia for a total of 3 months?” you answered “Yes”.

    Under the heading “Details of specified work undertaken”, you provided the following answers:

    Details of specified work undertaken: ABN  64185011430

    Postcode  4716
    Start Date  21 December 2014
    End Date  06 April 2015

    Under the heading “Declaration”, to the question “I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa”, you answered “Yes”.

    On 14 July 2015, based on the information provided in your the visa application, including your answers for the requirement to have worked the equivalent of at least 3 months’ full-time work in a specified occupation in regional Australia, you were granted the Working Holiday (Extension) Subclass 417 visa.

    Information indicating those answers were incorrect

    Departmental records dated 19 December 2017 indicate that the employer declared on the visa holder’s Working Holiday (Extension) visa application, B.A Wedemeyer & C.W Wedemeyer (ABN: 64185011430) (the employer) have confirmed to the Department that the visa holder had never worked for B.A Wedemeyer & C.W Wedemeyer.

14. In considering the information, the delegate formed the view that the applicant had provided incorrect information regarding her claimed employment with B.A Wedemeyer & C.W Wedemeyer in the Working Holiday (Extension) Subclass 417 visa application. The delegate noted that non-compliance with s.101(b) of the Act in relation to the Subclass 417 visa may constitute grounds for cancelling the applicant’s Subclass 457 visa. 

15. In response to the notice and in submissions to this Tribunal, the applicant’s representative conceded that incorrect information was likely provided in the applicant’s previous application for an extension of her Working Holiday visa. It was submitted that the applicant did not deliberately provide incorrect information in her previous visa application and that the provision of the incorrect information was solely the result of her former agent’s deceptive and misleading conduct. It was submitted that the applicant acknowledges that she is responsible for the accuracy of the information that was provided on her behalf and deeply regrets the inconvenience caused.

16. At hearing the applicant confirmed that she was not employed by B.A Wedemeyer & C.W Wedemeyer between 21 December 2014 and 6 April 2015 as indicated on the application form for the Subclass 417 (Extension) visa and sought to explain the circumstances that led to the provision of the incorrect information.

17. The Tribunal had regard to evidence relevant to the circumstances of the non-compliance further below in its consideration of the discretion.  However, for the purpose of determining whether there has been non-compliance with s.101(b) as described in the notice, the evidence before the Tribunal, the correctness of which the applicant confirmed at the hearing, is that she was not employed by B.A Wedemeyer & C.W Wedemeyer between 21 December 2014 and 6 April 2015. On the basis of this evidence, the Tribunal is satisfied that incorrect answers regarding the applicant’s employment were provided in the visa application form for Working Holiday (Extension) Subclass 417 visa.

18. For the above reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice. By operation of s.107A, the applicant’s Subclass 457 visa is therefore subject to cancellation under s.109 of the Act.

    Should the visa be cancelled?

19. 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).

20. 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 Migration Regulations 1994. 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.

21. 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 Procedures 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.

22. The Tribunal has considered the evidence and submissions relevant to the prescribed circumstances as follows. 

    The correct information

23. The correct information is that the applicant was not employed by B.A Wedemeyer & C.W Wedemeyer (ABN: 64185011430) from 21 December 2014 to 6 April 2015 as indicated on the application for the Subclass 417 (Extension) visa.

    The content of the genuine document (if any)

24. This consideration is not relevant in the circumstances of this case.

    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

25. One of the requirements for the grant of the Working Holiday (Extension) Subclass 417 visa is that the applicant has worked in regional Australia for a total period of three months. The Tribunal therefore finds that the decision to grant the Subclass 417 (Extension) visa was based, at least in part, on incorrect information relating to the applicant’s employment in regional Australia. This factor weighs in favour of cancellation.

26. The Tribunal has also considered the representative’s written submissions that the applicant’s secondary Subclass 457 visa was granted on the basis of her relationship with Mr Chan and that she did not need to apply for or be granted the working holiday extension visa. The Tribunal acknowledges that if the applicant had not applied for the Working Holiday (Extension) visa, which was granted on 14 July 2015, she would have continued to hold the first working holiday visa, which was valid until 2 December 2015, and she could have been included in her spouse’s Subclass 457 visa application, which was lodged on 9 November 2015. However, this was not what occurred and the applicant nevertheless decided to lodge the Subclass 417 (Extension) visa application which contained incorrect information. The Subclass 417 (Extension) visa was granted and held by the applicant between 14 July 2015 and 11 March 2016, until the grant of the secondary Subclass 457 visa.   

27. The Tribunal has had regard to the submissions that the applicant’s secondary Subclass 457 visa was granted on the basis of her relationship with Mr Chan. The Tribunal has had regard to the parties’ relationship further below. The evidence before the Tribunal indicates that the applicant met the eligibility requirements for the grant of the secondary Subclass 457 visa. There is nothing before the Tribunal to suggest that any incorrect information was provided in relation to the Subclass 457 visa application and the Tribunal gives some weight to this factor in the applicant’s favour. 

    The circumstances in which the non-compliance occurred

28. The non-compliance occurred on 14 July 2015 when the application for the Subclass 417 (Extension) visa, which contained incorrect information about the applicant’s employment, was lodged with the Department.

29. In seeking to explain the circumstances, the applicant provided a statement explaining that in June 2015 a person by the name of Wen Tao He, who represented himself as a migration agent, advised her and her husband that he could assist the applicant to extend her working holiday visa for a further period of 12 months. At that time, the applicant was the holder of the initial working holiday visa, which was valid until 2 December 2015.

30. The applicant claims that Mr He did not give her any advice regarding the requirements for applying for the second working holiday visa or that the extension of her current visa was in fact an application for the second working holiday visa. She stated that she had agreed to extend her visa for a small fee while awaiting the outcome of her husband’s 457 visa application.

31. At the hearing, the applicant gave evidence that she was referred to Mr He by a friend, Kwan Chan, who transferred the money directly to Mr He. When asked if she had made any enquiries about the requirements for extending the working holiday visa, she stated that Mr He told her that the process was very simple and fully legal and she trusted him. She stated that she then let him handle everything and did not follow it up. The applicant gave evidence that at the time her spouse was working and in the process of preparing his application for the Subclass 457 visa and studying for the English test so she did not want to concern him about her application. She stated that it was not long after that they were granted the 457 visa and that neither she nor her husband became aware of the incorrect information in the working holiday visa until they received the notice and sought advice from a lawyer. The applicant maintained that she had no knowledge and did not suspect that Mr He would provide false information. She claimed that if she knew she would not have agreed to the application being lodged and would have just waited for the 457 visa application to be processed.  

32. The applicant confirmed that she had engaged the services of Mr He and understood that he was going to make an application on her behalf to extend her working holiday visa for a further period of 12 months. The applicant gave evidence that she only provided a copy of her passport and the fee to Mr He for the application. She claimed that he had not asked her for any other documents or details.

33. The Tribunal put to the applicant that it found it difficult to believe that she would not have been aware that one of the requirements for an extension of the working holiday visa is that a 417 visa holder has worked in a particular industry in regional Australia for a specified period. In response, the applicant stated that she had made a mistake by trusting Mr He too much. She stated that she was not completely aware of the requirements and that Mr He had led her to believe that all she had to do was pay a fee and she would be exempted.

34. The Tribunal explained to the applicant that in the circumstances, where she had engaged an agent to act on her behalf, the principles of agency apply and any actions of the agent are considered to be her actions. The Tribunal explained to the applicant that the onus was on her to ensure that any information provided on her behalf is true and correct. The applicant conceded that she should have made further enquiries and checked the information.

35. The Tribunal explained to the applicant that even if it was to accept that she was not aware of the specifics of the information provided on her behalf by Mr He, it appears that she was, at the very least, indifferent about the information Mr He put in the application on her behalf. The Tribunal noted that she appears to have made little to no effort to verify the information that was included in the application form. In response, the applicant maintained that she relied on Mr He too much and believed the information he provided was correct. The applicant stated that she is sorry for what occurred. She was naïve and should have been more vigilant.

36. The Tribunal has considered the applicant’s evidence, and while it is prepared to accept that the applicant relied on her agent to lodge the application on her behalf, the Tribunal considers that this is not a case where the agent had committed fraud on the applicant. The applicant engaged the applicant to act on her behalf for the extension of her working holiday visa, and while she appears to have been generally aware that requirements had to be met so she can qualify for the visa, she made little effort to inform herself of those requirements and to ensure that the information provided in the application was true and correct.

1. The Tribunal considers that the onus was on the applicant to ensure that the information provided on her behalf was correct. The Tribunal considers that it was within the applicant’s control to inform herself of the requirements for the visa and to check the correctness of the information provided in her visa application. While the applicant may not have deliberately sought to provide incorrect information, she was at the very least indifferent to the information being provided on her behalf. The Tribunal considers that the circumstances of the non-compliance do not weigh in the applicant’s favour.

   The present circumstances of the visa holder

2. The present circumstances of the visa holder are that she has been residing in Australia since December 2014, initially on the first working holiday visa, then for a period of about seven months on the second working holiday visa and as the secondary holder of a Subclass 457 visa since 9 March 2016. The applicant and her spouse, Mr Chan, currently reside in East Maitland. The applicant is currently employed as a massage therapist and her spouse is employed as a cook at Billabongs Restaurant which is located within the East Maitland Bowling Club. Mr Chan’s sponsoring employer has lodged an employer nomination in relation to him and on 28 June 2018 Mr Chan lodged a Subclass 186 visa on the basis of that employer nomination. At the hearing, Mr Chan explained to the Tribunal that his employer wanted to lodge the nomination and the visa application prior to an increase of the fees on 1 July 2018. Mr Chan informed the Tribunal that his employer’s advisor explained to him that the applicant could not be included in the Subclass 186 visa application because her visa had been cancelled and that if the review of the cancellation is successful she could be added to the application during processing.    

3. The Tribunal has had regard to the representative’s written submissions stating that the cancellation of the applicant’s visa would cause detrimental and adverse impact on her relationship with her spouse. It was also submitted that any time apart could cause mental and emotional health concerns for the parties and that the applicant had developed an interdependency on Mr Chan and relies on him for emotional support. It was submitted that the applicant and Mr Chan wish to remain in Australia where they have a better quality of life and career opportunities. In referring to the delegate’s finding that Mr Chan could accompany his wife if she had to depart Australia, it was submitted that this would impose difficulties on Mr Chan’s application for permanent residence.

4. In seeking further evidence about the above submissions, the Tribunal asked the applicant about her relationship with Mr Chan. The applicant provided a detailed account of when she met Mr Chan, the development of their relationship, their decision to travel to Australia together on a working holiday, their decision to marry in September 2015 and their plans for the future. Mr Chan’s evidence to the Tribunal about the parties’ relationship was consistent with the applicant’s evidence. The Tribunal accepts that the parties have been together for over five years and that they have been living together as a couple since arriving in Australia in December 2014. The Tribunal accepts that the parties have been in a long term relationship and that they rely on each other for emotional support. The applicant gave evidence that she and Mr Chan had hoped to establish themselves in Australia and have a family. She gave evidence that she also has a sister who is currently living and working in Australia on a 457 visa. Her sister also lives and works in East Maitland.

5. The applicant gave evidence that if her review is not successful she would return to Hong Kong where her parents and two brothers reside, but she feels guilty about the trouble she has caused her spouse. She stated that Mr Chan had worked so hard since arriving in Australia and has a good career, which she feels has now been jeopardised because of her conduct. She stated that Mr Chan was innocent and she wanted him to pursue his career in Australia though she believes that their relationship may not withstand the separation.  

6. In his evidence to the Tribunal, Mr Chan stated that if they could remain in Australia they would continue working very hard for their future and would make a positive contribution. He provided details about his current employment and the support he has received from his current employer who would like him to continue in the position. When asked what he would do if the applicant’s visa was cancelled and she had to depart Australia, he stated that he would have to respect her and respect the marriage and would have to give up all they have built in Australia and would return to Hong Kong. 

7. The Tribunal has had regard to the applicant’s current circumstances. Even though the cancellation is unlikely to result in the parties’ separation, given Mr Chan’s evidence that he would respect the marriage and depart Australia with the applicant, the Tribunal accepts that this course of action would cause significant hardship for the applicant and her spouse. The applicant is extremely remorseful that her non-compliance has put Mr Chan in the position where he would need to give up his career and the life they have established in Australia over the last three and a half years. The letters of support received from the applicant’s employer and clients indicate that she is a hardworking, reliable and highly regarded employee. The letters of support in respect of Mr Chan from his employer, work colleagues and friends also speak very highly of him as a person and of his high level of competence as a skilled cook.      

8. The Tribunal considers that the present circumstances of the applicant weigh in favour of 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

9. It was submitted that the applicant, upon being notified that incorrect information was likely provided, has been cooperative in assisting the authorities with their inquiries and has been honest in her actions.

10. The Tribunal accepts that the applicant promptly conceded that the information provided in her Subclass 417 (Extension) visa regarding the claimed regional employment was not correct information. The applicant’s subsequent behaviour regarding her obligation to notify of incorrect information is a factor that weighs in her favour.

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

11. There is no information before the Tribunal which suggests that there has been any other instances of non-compliance by the applicant.

    The time that has elapsed since the non-compliance

12. The non-compliance occurred when the incorrect information was provided in the Subclass 417 (Extension) visa application which was lodged on 14 July 2015. A period of over three years has now elapsed since the non-compliance. 

    Any breaches of the law since the non-compliance and the seriousness of those breaches

13. There is no evidence before the Tribunal that the applicant has breached any law since the non-compliance.

    Any contribution made by the holder to the community

14. At the hearing, the applicant was unable to recall any contribution she had made to the community, however it is appropriate to consider all the letters of support provided in relation to this consideration. The Tribunal received numerous letters of support from the applicant’s employer and a number of clients indicating that the applicant is hardworking, friendly, dedicated and demonstrates high moral character. The Tribunal is satisfied that the applicant has made a contribution to the community through her work and gives this factor some weight in her favour.

15. The Tribunal has also considered the policy considerations that are relevant to the circumstances of this case as follows.

16. In relation to the mandatory legal consequences of cancellation, the Tribunal accepts that if the applicant’s visa remains cancelled, she will not be able to be included in her spouse’s Subclass 186 visa application which is currently pending before the Department.

17. If the visa remains cancelled and the applicant has to return home, Mr Chan has indicated that he would return to Hong Kong though this would come at a great personal and financial cost for the applicant and her spouse who have worked hard to establish themselves in Australia. The Tribunal also considers that the cancellation would cause hardship to Mr Chan’s nominating employer, Billabongs Restaurant, who have employed Mr Chan over the last three years and have come to rely on him to train and supervise staff. The letter of support from the restaurant’s manager states that Mr Chan is a hardworking and responsible employee who has demonstrated leadership skills. It states that Mr Chan has excellent communication skills and has built a strong rapport with the team, organising regular social activities, including fundraising and charity fun runs. Mr Chan’s employer considers him to be a valuable asset to the organisation and refers to Mr Chan and the applicant being regular diners at the restaurant.

18. The Tribunal considers that the legal consequences of cancellation and the hardship that would be caused to the applicant, her spouse and her spouse’s nominating employer are circumstances that weigh in favour of not cancelling the visa.

    Overall considerations

19. The Tribunal has carefully considered all of the relevant evidence before it. While the circumstances of the non-compliance and the fact that the applicant was granted a previously held visa on the basis of incorrect information weigh in favour of cancellation, the Tribunal considers that these factors are outweighed by the other circumstances in favour of not cancelling the applicant’s current visa. The visa currently held by the applicant, namely the secondary Subclass 457 visa, was granted to the applicant on the basis of her relationship with Mr Chan.  The Tribunal is satisfied as to the genuineness of that relationship. This factor, when considered in combination with the current circumstances of the visa applicant, the applicant’s cooperation with the Department following the issuing of the notice, the hardship that would be experienced by the applicant, her spouse and the nominating employer, tip the balance in favour of not cancelling the visa.

    Conclusion

20. 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

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    R. Skaros
    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.