Whelan (Migration)

[2022] AATA 99

Whelan (Migration) [2022] AATA 99 (12 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Katie Louise Whelan

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2112224

HOME AFFAIRS REFERENCE(S):          BCC2020/2685397

MEMBER:Nicole Burns

DATE:12 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 12 January 2022 at 10:14am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in extension application – 3 months of specified work in regional area while holding first visa – verification check showed applicant never worked at claimed business – discretion to cancel visa – application completed by agent – non-compliance conceded – COVID-19 restrictions and cancellation of return flight – critical non-specified work in skilled occupation, value to employer and community activity – partner’s visa cancelled on similar grounds and application for review in progress – decision under review set aside 

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
Chardronnet (Migration) [2021] AATA 1335
Gormley (Migration) [2021] AATA 4341
MIAC v Khadgi (2010) 190 FCR 24

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 Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act) on 10 September 2021.

2. The delegate cancelled the visa because they were satisfied the applicant provided incorrect answers in her Working Holiday (Extension) visa application for her second working holiday visa in certain respects in breach of s 101(b) of the Act. Further, the delegate was not satisfied that the factors in the applicant’s case against cancelling the visa outweighed the factors for cancelling the visa.

3. The issues in the present case are whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal via video link on 6 January 2022 where she gave evidence and presented arguments about the issues in her case. The Tribunal also received oral evidence from Mr Luke Hanley, Principal (relieving), Arndell School in Sydney, New South Wales (NSW).  The applicant was represented in relation to the review and her representative attended the hearing.

5. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by way of a video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. There were no apparent communication difficulties during the hearing and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. 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

7. 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.

8. 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.

9. In this case the Department sent the applicant a notice of intention to consider cancellation (NOICC) of her working holiday (extension) visa (lodged and granted on 16 September 2020) on 9 August 2021 which set out the alleged non-compliance with s 101(b) of the Act. She was invited to provide a response, which she did in the form of an email dated 23 August 2021 with supporting documents attached.

10. 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?

11. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects.

12. The notice records that in filling out her visa application form the applicant responded ‘yes’ to the question about whether she had undertaken at least three months’ specified work in regional Australia as the holder of a working holiday visa (Subclass 417) from 16 March 2020 to 5 July 2020, totalling 90 days. She also provided the details of her purported employer: Atlantic (Aust) Pty Ltd trading as Adenco Water Management and Civil Engineering, ABN: 47601690662, Western Australia (WA). However, subsequently, on 16 November 2020, a staff member at Adenco Water Management and Civil Engineering contacted the Department (following the delegate initiating an employment verification check) and advised that the applicant had never worked at their business.

13. In her email response to the NOICC setting out this information the applicant acknowledged she provided incorrect information as specified. She explained it was during the time of the worsening pandemic, her scheduled return flight to England on 27 April 2020 had been cancelled (and those few that remained were expensive), and she considered England to be more high-risk. Further, she was working as a primary school teacher in Sydney and due to the border closures, lockdowns, quarantine requirements and difficulties in finding a place to complete regional work, she felt anxious, panicked and found someone who provided her with the second working holiday visa without having to complete any ‘farm work’.

14. The applicant states that she accepts her wrongdoing but nonetheless argues that her visa should not remain cancelled for several reasons.  These include because she has adhered to the visa conditions attached to her past tourist visas and her first working holiday visa; there have been no other instances of non-compliance; she abides by relevant Australian laws and pays taxes; and teaches at a school that caters for students with emotional disturbances. She also notes that in recent months primary school teachers – of which she is one – have returned to the NSW skilled occupation list. She believes she meets all the eligibility requirements for this role and is enquiring about a skills assessment to apply for a relevant skilled visa.

15. The applicant provided to the Department several supporting documents including a reference from her current employer, Luke Hanley, Principal (relieving), Arndell School dated 23 August 2021; a reference letter from a friend and colleague, Deanne Taylor, dated 22 August 2021; and a copy of an email advising the applicant of her flight cancellation scheduled for 27 April 2020.

16. The delegate was satisfied the applicant had provided incorrect information in the manner particularised in the notice. Having weighed up the discretionary factors the delegate was satisfied the reasons for cancelling the visa outweighed those for not cancelling the visa and the visa was cancelled on 10 September 2021.

17. On review the applicant provided a written statement to the Tribunal dated 29 December 2021 setting out her background, circumstances that led to the non-compliance, her current circumstances and plans, possible impact if the visa remains cancelled and other relevant matters, similar to (and elaborating upon) what she had stated in response to the NOICC.

18. The representative provided a comprehensive written submission to the Tribunal in which he mainly addressed the discretionary factors, acknowledging the applicant had provided incorrect information in the visa application. In it he referred to recent Tribunal decisions with similar factual scenarios wherein the Tribunal (differently constituted) exercised its discretion not to cancel those applicant’s visas. In doing so weight was given to certain factors including the widespread uncertainty and ongoing restrictions in place due to COVID-19 at the time of the non-compliance. Copies of these Tribunal decisions were provided.[1]

    [1] Gormley (Migration) [2021] AATA 4341 and Chardronnet (Migration) [2021] AATA 1335

19. The representative argues that whilst the applicant acknowledges her wrongdoing, her reason and judgement were impaired at the time of the non-compliance due to securing employment, exacerbated by COVID-19 and related restrictions and fears, including of having to return to the UK with a declining economy. It was in this context that she panicked and engaged the services of the agent. As well she was concerned for her students at Arndell School who experience various conditions and challenges and struggled to cope with education during lockdown.

20. The representative provided to the Tribunal a bundle of supporting documents, some of which had been provided to the Department in response to the NOICC as well as the following documents:

    ·A letter of support from Carol McLaughlin, Clinical Nurse Specialist, Clinical School Programme at Coral Tree Family Service, dated 30 December 2021. In it she explains that they are a state-wide tertiary referral service working with children and their families experiencing significant difficulties with mental health, behaviour, emotions and relationships; they work closely with staff at Arndell School to support the children at home, in the playground, classroom and at home school; and in this capacity she has worked with the applicant for the last two years (who also participated in training workshops) and found her to be extremely professional and competent, and an asset to the team.

    ·A letter of support from Michelle Bloom, Coogee Dolphins, Committee member, under 7s Manager, dated 30 December 2021. In it she confirms the applicant is an active member of the Coogee Dolphins Junior Rugby League club and has spearheaded a mental health initiative with children aged 6–13 years.

    ·A letter of support from Rebecca Hamer, a friend of the applicant’s from the UK, dated 28 December 2021 in which she attests to the applicant’s kindness and support, among other things.

    ·Copies of the applicant’s education documents showing she has obtained a Bachelor of Arts (First Class Honours) from the University of Durham, and gained relevant certification to qualify as a teacher in the UK.

    ·Correspondence showing the applicant has been given an unconditional offer of post graduated certificate in Education (Primary) Top Up January 21/22 academic period (in Australia).

    ·A copy of the applicant’s employment contract with Arndell School, NSW Department of Education.

    ·Evidence showing the applicant has undertaken various professional development/learning courses in Australia including, for example, relating to first aid, work health and safety, and child protection.

    ·Copies of ‘thank you’ notes from the parents of students at the applicant’s school.

    ·Various photographs of the applicant’s students performing at school and examples of their work.

    ·A copy of the applicant’s residential tenancy agreement for a property in Kirribilli, NSW made on 6 October 2021 signed by the applicant and her partner.

    ·A Black Dog Institute pamphlet titled ‘Tackling mental illness together’.

21. At hearing the applicant agreed there was non-compliance in the manner set out in the NOICC. She confirmed she did not undertake specified regional work in Australia as indicated in her second Subclass 417 visa application. She explained at the time she was working full time as a teacher at Arndell School in Sydney; she knew she had to undertake regional work but panicked after several friends had travelled to regional Australia to do so and were unsuccessful due to COVID-19 lockdowns and related restrictions; and she then decided with three months left on her (first Subclass 417) visa to go through an ‘agent’ recommended by a friend of a friend to obtain the second Subclass 417 visa. She never met the agent, contacting them via email only.

22. The applicant said she had planned to return to the UK and had booked a flight in April 2020 however due to COVID-19 that flight was cancelled. Additionally her sister (and her sister’s partner) in the UK contracted COVID-19 and the situation in the UK became more riskier than Australia, prompting her decision to try and stay. She is very remorseful and the decision to contact the agent was out of character.

23. Based on the evidence before it, including the applicant’s oral evidence at hearing acknowledging she did not undertake specified work in regional Australia, the Tribunal is satisfied she provided incorrect information in the application for a working holiday (extension) visa as set out in the NOICC by:

    ·Answering ‘yes’ to the question: ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’;

    ·Providing details of claimed employment with Atlantic (Aust) Pty Ltd trading as Adenco, at the section of the application form titled ‘Details of Specified Work Undertaken’; and

    ·Answering ‘Yes’ to the declaration ‘Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa’.

24. For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice and is satisfied that the grounds for cancelling the visa have been made out.

    Should the visa be cancelled?

25. 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).

26. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth), as follows.

27. The correct information: was that the applicant was not employed by Adenco Water Management and Civil Engineering, WA for 90 days from 16 March 2020 to 5 July 2020, as set out in her visa application form, and she did not undertake specified work in regional Australia. The Tribunal gives this considerable weight towards cancelling the visa.

28. The content of the genuine document (if any): This prescribed circumstance is not relevant in this case because the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents).

29. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The Tribunal finds the decision to grant the applicant a second Subclass 417 Working Holiday (Extension) visa was based in part on her statement that she had undertaken specified work in regional Australia for at least three months. The applicant has acknowledged she did not undertake such work: with Adenco or elsewhere. If the correct information had been provided the applicant would not have been granted the visa as she would not have satisfied this key requirement. The Tribunal gives this considerable weight towards cancelling the visa.

30. The circumstances in which the non-compliance occurred: the incorrect information was provided by the applicant in her Subclass 417 Working Holiday (Extension) visa application dated 16 September 2020. In response to the NOICC and her oral evidence at hearing the applicant explains she did so because she was working full time at a school catering for high needs children in Sydney, it was during the height of the pandemic with related lockdowns and restrictions, she had several friends attempt to obtain regional work at this time unsuccessfully, and she was afraid of returning to the UK due to the high number of COVID-19 cases there. The applicant then heard about someone who could help her obtain the visa and made the decision to do so, which she now deeply regrets, claiming it is out of character.

31. As noted, the representative has argued there were various extenuating circumstances including difficulties getting regional work during the COVID-19 pandemic at the time, which affected the applicant’s judgement and decision making.

32. In her written statement and oral evidence to the Tribunal the applicant has described the nature of her work teaching high needs children at Arndell – where she was at the time of the non-compliance – and its various challenges and rewards. The school’s principal, Mr Hanley, spoke highly of the applicant’s skills with the children and considers her an invaluable asset, noting the difficulties in obtaining and maintaining teaching staff at the school.

33. Whilst the applicant clearly knew what she was doing when she engaged the ‘agent’ to apply for the second Subclass 417 visa, and she knew she did not meet the relevant criteria in relation to specified regional work, the Tribunal accepts the challenge in finding and maintaining work in regional Australia during COVID-19 and related restrictions in various parts of the country. The Tribunal found the applicant was remorseful in her decision to do so and considers it was made largely as a consequence of perceived difficulties in securing specified work due to COVID-19-related restrictions and her desire and commitment to continue work teaching high needs children at Arndell School. It is satisfied based on the evidence from the school’s principal that she was a critical staff member – one of only four – helping keep high needs children engaged in education during a global pandemic and related disruptions and that she was a key part of this team.

34. For these reasons the Tribunal gives this factor significant weight towards not cancelling the visa.

35. The present circumstances of the visa holder: the applicant has been resident in Australia since December 2019 and told the Tribunal she presently lives with her partner – also from the UK – in Sydney. As noted she works full time as a primary school teacher at Arndell School since February 2020.

36. The applicant said at hearing she has enrolled to study a further year teaching in order to apply for a permanent (skilled and/or sponsored) visa which requires a four-year degree, given her teaching degree in the UK was for only three years. She has provided evidence of such to the Tribunal. She said she plans to study part time whilst continuing to work at the school noting most of the modules are based on work experience. She has Mr Hanley’s full support in doing so. Although challenging at times, she enjoys her work at Arndell and wants to continue to work there, finding it very rewarding helping high needs children manage their behaviour, and reengage with learning. Mr Hanley confirmed that she has an annual contract for this year and indicated her position would remain available in the foreseeable future.

1. The applicant said she met her partner in Australia and they have been in a relationship for a bit over a year. He works in construction. He also came to Australia on a working holiday visa and had his second 417 visa cancelled for similar reasons to the applicant. He has sought a review of that decision with the Tribunal (differently constituted) which is pending. The applicant said her partner wishes to stay in Australia. She said they have not really discussed what would happen if her visa remains cancelled and she has to return to the UK.

2. The applicant told the Tribunal she has a cousin who moved to Australia, is now an Australian citizen and presently lives in Tasmania with her husband and three children, one of whom is her god daughter. The applicant spent time with them in 2018 when she visited Australia from the UK, holding a tourist visa. Although close, she has not been able to see them since she returned to Australia in late 2019 due to COVID-19-related travel restrictions and border closures but is due to fly to Tasmania to see her cousin and her family shortly.

3. The Tribunal accepts the applicant’s evidence about her work history in Australia, the type of work she does, and about her relationship with her partner, and her cousin (and her cousin’s family) in Tasmania. It considers her partner would be impacted adversely if her visa remains cancelled, either by returning to the UK with the applicant and cutting short his plans to live in Australia, or by them separating. Also that her cousin would be negatively affected. Further it accepts that whilst not necessarily irreplaceable, if the applicant left Arndell School it would have an adverse impact on many of the children there, as well as the staff and the principal who may struggle to find a suitable replacement, at least initially.

4. The Tribunal gives these factors considerable weight towards not cancelling the visa.

5. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: in response to the NOICC the applicant acknowledged that she had provided incorrect answers in her visa application as set out in the NOICC. Further, there is no information before the Tribunal to indicate that subsequent to the NOICC being issued, the applicant has not complied with any of her obligations under Subdivision C of Division 3 of Part 2 of the Act. The Tribunal considers this factor weighs towards not cancelling the visa.

6. Any other instances of non-compliance by the visa holder known to the Minister: there are no other instances of non-compliance known to the Tribunal.

7. The time that has elapsed since the non-compliance: the relevant non-compliance took place when the applicant applied for the second Subclass 417 visa on 16 September 2020, which is a year and four months ago. The representative submitted that the Tribunal should take into account that the applicant has been resident in Australia since December 2019, which is just over two years. Even so, this is not a significant amount of time and the Tribunal gives no weight to this factor when considering cancellation.

8. Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance.

9. Any contribution made by the holder to the community: in response to the NOICC and in her written and oral submissions to the Tribunal the applicant said she volunteers at a local rugby club and has been helping provide mental health support to some of the children and their families there. She has provided a letter from one of the club’s members who spoke highly of the applicant’s volunteer work with the club and the Tribunal accepts she has contributed to the community in this way over the past two years. It gives this factor some weight towards not cancelling the visa.

   Other matters

10. 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.

11. In this case there are no persons whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa under s 140 of the Act. Further, the applicant does not have any children whose best interests would be affected by the cancellation.

12. The applicant has not made any claims to fear persecution or other forms of harm on return to the UK which may enliven Australia’s non-refoulement obligations. There is nothing to suggest that Australia’s international obligations would be breached because of the cancellation. She has indicated that her parents – who whilst working have struggled financially during COVID-19 – would be burdened by her return because it is likely they would have to financially support her at least initially until she gets a job. The representative has noted the high unemployment rate in the UK due to COVID-19. At hearing she noted she may not be able to secure a teaching job until around September, to coincide with the start of their school year. The Tribunal accepts the applicant is genuinely concerned about being a burden on her parents if she returns to the UK. However, she is a qualified teacher with teaching experience in the UK and Australia and the Tribunal considers she will be able to find work eventually. Such circumstances do not give rise to any potential breaches of Australia’s international legal obligations.

13. The applicant worries about the pandemic, which is worse in the UK, which the Tribunal accepts. However, this is a problem faced by most countries’ populations in the world. There is nothing in the applicant’s circumstances or profile to suggest she would be particularly vulnerable.

14. The Tribunal has considered the legal consequences of cancelling the visa. If the visa is cancelled she is likely to become an unlawful non-citizen and potentially subject to detention and removal unless granted a bridging visa. The operation of s 48 of the Act would limit the kind of visas the applicant can apply for in Australia and she will also be affected by public interest criterion 4013 which may prevent her from being granted certain kinds of visas for three years since the date of cancellation. The Tribunal accepts her plans would therefore be interrupted and gives this factor some, albeit limited, weight towards not cancelling the visa.

15. In terms of hardships the applicant or family members may face if the visa is cancelled, in addition to the applicant’s concerns about the impact on her partner (and herself) as discussed, as noted at hearing she advised that her cousin and her family (including her god daughter) live in Tasmania who she is close to. The Tribunal accepts her evidence in this regard, and accepts she is close to her cousin (and her children) who are all Australian citizens and that they would be adversely impacted if her visa remains cancelled and she leaves Australia. The Tribunal gives this factor some weight towards not cancelling the visa.

    EXERCISE OF DISCRETION

16. The Tribunal considers the provision of incorrect information in this case to be significant given the decision to grant the visa was based partly on that information and the applicant engaged a third party (‘agent’) to help her provide incorrect information, knowing she did not meet the particular requirement. She was able to obtain a positive migration outcome as a result.

17. Nonetheless this took place during a time of a global pandemic with related lockdowns and restrictions in Australia which made it difficult to obtain regional work. Additionally, the applicant had a secure job and income at the time teaching children with significant emotional and other needs during a time of turbulence and upheaval to their education (and lives). She has continued in that role, and has been instrumental according to evidence provided by the school’s principal and a colleague, showing she has an ability to positively impact the lives of those vulnerable children (and, in turn, their families). There are no other instances of non-compliance in the applicant’s case, she admitted her wrongdoing in response to the NOICC, and appears genuinely remorseful. Further if the visa remains cancelled her partner and cousin (and her children) – the latter Australian citizens – will be negatively impacted. Taking into account these considerations the Tribunal is satisfied that the factors in the applicant’s case against cancelling the visa outweigh the factors for cancelling the visa.

18. 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

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Nicole Burns
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.