Wong (Migration)

Wong (Migration) [2019] AATA 3184 (4 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wai Fung Wong
CASE NUMBER:  1805571
DIBP REFERENCE(S):  BCC2017/4474756
MEMBER:Karen Synon
DATE:4 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 04 March 2019 at 10:06am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – incorrect answers in previous working holiday visa application – specified work in regional Australia – family financial hardship – subsequent employment on a 457 visa – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 97, 99-101, 107, 109
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had provided an incorrect answer in his application for a Working Holiday (Extension) visa by claiming that he had undertaken three months of specified work in a regional area. 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 28 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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 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.
When referring to the regional work requirement in the Working Holiday visa application, 13 weeks and three months should be read as the same amount of time.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101 – visa applications to be correct - in the following respects:
Section 101 – Visa applications to be correct
A non-citizen must fill in or complete his or her information form in such a way that:
…(b) no incorrect answers are given.
The breach of s.101(b) relates to a Subclass 417 Working Holiday (Extension) visa which the applicant previously held that was granted on 14 April 2015 and ceased on 16 March 2016. Section 107A of the Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.
Section 107A:
Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
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 section 99 of the Act:
Information 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.
The section 107 notice relevantly set out:
On 26 February 2015 you applied for a subclass 417 Working Holiday (Extension) visa by the Department’s online facility. As part of the application, you completed an electronic application form. On page 2 of the application form, in response to the question “Have you undertaken specified work in regional Australia for a total of three months?” You answered “Yes”.
On page 3 of the application form, under the heading “Details of specified work undertaken”, you provided the following answers:
Details of specified work undertaken:
ABN 41149928174
Postcode 2680
Start Date 09 June 2014
End Date 22 September 2014
On page 6 of the application form, under the heading “Declaration” in response 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”.
Based on information provided in the visa application, you met the relevant criteria for the visa approval and on 14 April 2015 you were granted a TZ417 Working Holiday (Extension) visa.
Department officers contacted the company owners of ABR Farming Pty Ltd (ABN 41149928174) and on 5 October 2017, the Department received an email from ABR Farming Pty Ltd which stated that you had never worked for ABR Farming Pty Ltd.
Therefore, you have provided an incorrect answer by recording “Yes” on page 2 of the application form, in response to the question “Have you undertaken specified work in regional Australia for a total of 3 months?”.
On page 3 of the application form, under the heading “Details of specified work undertaken”, who provided the following answers:
ABN 41149928174
Postcode 2680
Start Date 09 June 2014
End Date 22 September 2014
I consider this information is incorrect, as the business using ABN 41149928174, ABR Farming Pty Ltd, has confirmed that you never worked for ABR Farming Pty Ltd.
On page 6 of the application form, under the heading “Declaration” in response 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”. I consider this information is incorrect, as it would appear you did not undertake three months of specified work.
Based on the information before me, I consider you have not complied with section 101(b) of the Migration Act because it appears you provided incorrect information in your TZ417 Working Holiday (Extension) visa application.
If you failed to complete your visa application form in such a way that no incorrect answers are given or provided there may be grounds for cancellation of your 457 Temporary Work (Skilled) visa under section 109 of the Act.
The power to issue this Notice, make a decision about whether there was non-compliance in the way described in this Notice and make a decision about whether to cancel your visa, it is whether the non-compliance was deliberate or inadvertent.
The applicant was invited to respond and address any matters he thought relevant within 14 calendar days of the Section 109 Notice. The following statement was received in response:
In July 2013 my father was injured while working, he not only had to spent (sic) money for medical expense, but also had to take rest at home for recovery, as advised by the doctor. At that time, our family had just closed our own shop, which had accumulated some loss, few months ago. All of these made me has the pressure to earn much money in a short time to support my family. While I searched for the job with high remuneration on the internet, I found lots of young people mentioned that they got high pay by working in Australia with working holiday visa. Therefore, after discussing with my family, my girlfriend and I applied for the working holiday visa to Australia.
In March 2013, after celebrating the Chinese New Year with the family, both of us came to Australia. As I had qualification and working experience as a Western Chef before, so I looked for relevant jobs in Melbourne during the first few weeks after we arrived in Australia. However, as both of our English is not so good, we either did not get responses after interviewing or could only get the jobs with hourly rate between eight and ten Australian dollars merely. When we got the chance to chat with other working holiday visa holders, were told that good English is not a critical requirement while working at the regional farm: besides, the remuneration there is also higher than the jobs in most of the metropolitan areas in Australia. In addition, with at least three months’ working experience in the regional farms, we would be eligible to apply for the second working holiday visa, which would allow us to get another year for working here. With this good news, we went to a regional farm via a friend’s referral, hope to get job there. However, after to stayed there for some period, we just realised that there is assistance between ideal and reality. The situation in the regional farm was that all the works there would be arranged by the foreman, who would take part of our wage as his service fee, that means, we could only get less than three hundred dollars per week even we worked hard for six days in a week, after deducting the rental and the foreman’s service fee. Even worse was that, as so many people stayed in the regional farm waiting for jobs, there was no guarantee that we could get work all the time. Sometimes, we could only get jobs for 3 or 4 days per week, which means we sometimes even could not have surplus at all. Because we had to provide financial support for our family in Hong Kong, the money we accumulated at the regional farm was far more than enough for what we expected; we had no choice, but moved to Sydney, hope to get better chance there.
It was lucky that we found the stable jobs in Sydney through a friend’s referral. As we plan to apply for the second working holiday visa; we started looking for the job in regional farms again after working in Sydney for several months. With a bad experience in the farm last time, we thought maybe it would be better to engage an expert to assist us this time. So we paid the fee to an agent, promised us that he would find suitable jobs in the regional area for us very soon, after understanding our situation. However, every time when we contacted him, he was always asked us to be patient, saying that “haste makes waste”. We told him that we were in a hurry because we did not have much time left as we plan to apply for the second working holiday visa. He then told us not to worry as he could help us to get the second willing working holiday visa anyway.
Too young, to (sic) naive as us, we somehow believed what he said, maybe because of the pressure caused from my father’s situation and the financial hardship in our family. After paying the service fee and provided him our passports, we got our second working holiday visa a few weeks later.
Since July 2015, I was hired to be the chef in a restaurant named Three Monkeys Place in Melbourne. At beginning, the business was not so good, with all my effort; the restaurant became famous and had more and more customers gradually. As the only chef in that restaurant, I usually had to work overtime without extra pay, so the boss promised to give me 10% of the net profit as my bonus remuneration after I had worked there for one year. While my second visa was going to expiry, the boss says he could sponsor me applying for the 457 working visa as he really hope that I could continue to work for him. At the beginning of 2016, the restaurant was chosen as one of the “Melbourne’s Top 50 cheap-eat 2016” by “The Good Food Guide Melbourne”, and at that time, I still devoted myself to the business even better.
In October 2016, I was granted the 457 working visa. Later, when I asked my boss about my bonus which he promised me before, he mentioned to me that as the company had sponsored me to get the 457 working visa, so he would not give me the bonus as promised. I was shocked as it was totally different from what he said to me before. When he sponsored me applying for the 457 visa, he never mentioned about the cost, just told me that as the business needs me, so he could sponsor me to stay in Australia and work for him. Since then, he gave me the hard time quite often in work, such as saying something, that makes me embarrassed, in front of other staff. I still remember that at the initial stage while I worked there, the turnover was usually less than on (sic) thousand dollars per day, however; with my hard works, the best turnaround in a day could reach around eight thousand dollars. My efforts have been relentlessly treated; I was sad and could not stand anymore, therefore; I started to look after another job at the end of 2016.
Luckily, the boss of Linger Patisserie Café was willing to sponsor and hire me working at her shop. Hence; I left the Three Monkeys Place, even helped it to become one of the “20 Cafes you must go to in Melbourne Eastern Suburbs” posted by The Good Food Guide. While working at the Linger Patisserie Café, I also contribute my best and it has helped to win the “AGFG (Australian Good Food & Travel Guide) Readers’ Choice Award for 2018” recently.
The chess player usually said “make one wrong move in chess and you will lose the whole game”; and I believe this is a situation I face at the moment. I am deeply regretted about believing what the agent said to me at the time, without suspecting it or double confirm with other experts. However, except for the incorrect information he provided to Department of Immigration on my behalf, as what you mentioned in your letter; I believe I have not do anything unlawful during my stay in Australia these years. Therefore, we hope you can give forgive my past ignorance and give us an opportunity to stay here until the expiry of our current 457 working visas.
The applicant also provided to the Department:
·     A personal letter of support from Mr Andrew Braham, head chef at Archie Green, a Melbourne restaurant, who writes that has known the applicant for seven years having first met him in Hong Kong and that he is a trustworthy and honest person, he loves Australia was to stay and establish a life and family here.
·     Medical records, receipts and certificates in relation to his father’s medical condition; and
·     Copies of excerpts from the Australian Food Good & Travel Guide which lists Linger Patisserie as a reader’s choice award in 2018.
The delegate considered the response and documents provided and decided to cancel the applicant's Subclass 457 visa on the basis that he had provided incorrect information in his Working Holiday (Extension) visa application.
The applicant provided no evidence or documentation to the Tribunal prior to the hearing.
At the hearing applicant gave evidence that he had never worked at ABR Farming Pty Ltd.
As it is not in dispute in either the written or oral evidence of the applicant that he never worked at ABR Farming Pry Ltd (ABN number 41149928174), the Tribunal is satisfied that the applicant provided an incorrect answer in his Working Holiday (Extension) visa application.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
The correct information
The applicant was asked at the hearing what the correct information was relating to his work in a regional area at the relevant time when he lodged the Working Holiday (Extension) visa application. He said the correct information was that after they[1] came to Melbourne, they worked in a grape farm for one month. This farm was about 3 or 4 hours’ drive from Melbourne; it might be in Victoria or New South Wales. He did this through an agent and when he came to the farm he thought there might be illegal workers there and they would not help him to do the tax and they realised they would not help them apply for their visa extension.
[1] When the applicant referred to himself in the plural during the hearing he was referring to his wife and himself. His wife is the subject of a separate visa cancellation.
The correct information is that the applicant was not employed at ABR Farming Pty Ltd during the period 9 June 2014 and 22 September 2014. It is not disputed that the information contained in his Working Holiday (Extension) visa application was incorrect. The Tribunal considers the content of the correct and incorrect information, namely that he only worked at a grape farm for about one month, to be significant.
The content of the genuine document (if any)
This is not a relevant consideration in 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
One of the requirements for the grant of a working holiday visa is that the applicant has worked for a total of 13 weeks/three months in a regional area. On the evidence, the applicant worked in a regional area for approximately one month at a grape farm/orchard. The applicant said they went to another agent hoping he would help them find work on another farm. But the agent required them to pay first and after that he would find work and assist with their visa application. But after they paid the agent, he tried to drag out the matter and he could not find any work. As their first visa expiry was coming, he told them “there is no need to do so” and he put in an application for them. When the time was almost up and they did not have enough time to work anymore in the farm, then the agent told them that they did not really need to work 90 days on a farm and since they had previously worked on a farm they just had to provide that previous information and then they could apply for the extension.
When asked, the applicant agreed that had he filled in the information that he had only worked one month grape picking, he would not been granted the second visa. The applicant said that when they came here he did hear that they needed to work for 90 days but the agent insisted they did not need to do so and told them that as long as they had worked on a farm for one month they could submit the application and get an extension. He paid the agent and had no choice and had to believe her.

The Tribunal said that it did not find the applicant’s evidence in this respect to be genuine given his statement to the Department in which he said “with at least three months working experience in the regional farms, we would be eligible to apply for the second working holiday visa, which would allow us to get another year for working here”.
The Tribunal finds that the decision to grant the Working Holiday (Extension) visa was made, at least in part, on incorrect information relating to the applicant's employment in regional Australia. The requirements for the grant of a second working holiday visa for people who are 18-30 years of age is granted, essentially, on the basis that the applicant has a passport from an eligible country and has completed three months of specified work (in a regional area) while holding the first Subclass 417 visa.
Had the applicant not included the information that he had worked for three months in regional Australia, he would not have been entitled to the grant of the visa. This significantly weighs against the applicant and in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The Tribunal invited the applicant to make any submissions in relation to the circumstances in which the non-compliance however he declined to do so.
Having regard to the applicant’s response to the Department it notes and accepts that his first experience working as a grape picker at a farm/orchard was not as financially lucrative as he expected and that he left this farm after one month. However the Tribunal formed the view that the applicant was aware of the requirement to perform 90 days or three months’ work in a regional area. As noted above in his submission to the Department he specifically stated “with at least three months working experience in the regional farms, we would be eligible to apply for the second working holiday visa, which would allow us to get another year for working here” and “[a]s we planned to apply for the second working holiday visa; we started looking for the job in regional farms again after working in Sydney for several months” and later that “[w]e told him (the agent) that we were in a hurry because we did not have much time left as we plan to apply for the second working holiday visa” and also that “[h]e then told us not to worry as he could help us to get the second working holiday visa anyway”. The Tribunal observes that it appears convenient for the applicant to blame the agent for the circumstances in which his non-compliance occurred when in fact his submission to the department reveals that he was clearly aware of the three month work requirement in order to lodge an application for a second Working Holiday visa. Nor does the Tribunal accept that pressure caused from the ill-health of his father or any other financial hardship in his family was a significant factor in the circumstances at the time. It is the Tribunal’s view that the applicant’s claimed naivety and reliance on his agent are no justifications for his non-compliance.
The present circumstances of the visa holder
The applicant is married. His wife is separately the subject of a review of her visa cancellation for the same reason. They do not have children and he is not working. The Tribunal is not of the view that any of the present circumstances of the visa holder weigh against the cancellation of 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
There is no information before the Tribunal that indicates the applicant has demonstrated any behaviour of concern.
Any other instances of non-compliance by the visa holder known to the Minister
There is no information before the Tribunal that the applicant has otherwise been non-compliant with visa conditions since the incorrect answers were given in his working holiday application in 2015. The applicant’s evidence to the Tribunal is that he ceased employment as a Chef as soon as he received the Notice of Intention to Consider Cancellation letter and the Tribunal accepts this.
The time that has elapsed since the non-compliance
The non-compliance occurred 4 years ago in February 2016 when the applicant was applying for a second Working Holiday visa. The applicant has now spent almost five years living in Australia and has financially benefited from employment as a chef on a 457 visa in two Melbourne cafes. In this time he has also presumably acquired new skills and experience. The Tribunal does not, in the circumstances of this case, consider the period of time that has elapsed since the non-compliance to be significant enough to weigh in favour of not cancelling the visa given the circumstances in which the cancellation arose.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that the applicant has breached any laws since the non-compliance.
Any contribution made by the holder to the community
The applicant said he has been working as a chef for 15 years and thought he could bring some skills to Melbourne. In 2016 he helped his restaurant get the ‘Melbourne’s Top 50 cheap-eats by ‘The Good Food Guide Melbourne and in 2017 he got the top 20 Melbourne Café. This was referred to in his written submission as a Readers’ Choice Award for 2018 from ‘AGFG (Australian Good Food & Travel Guide)’. Asked if he had provided anything of a voluntary contribution to the community he said that he used to be a volunteer in Hong Kong teaching children who have problems to make pastries and he could do this in Australia if his English was better. He agreed that other than his paid employment he had made no contribution to the community. As the applicant was employed in these positions and therefore being paid and expected to perform at his professional best, the Tribunal places no weight on his employment experience and reputation as being a significant contribution to the community.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in r.2.41 where they are relevant or applicable in this case.
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 therefore, in addition to the prescribed matters in r.2.41, has had regard to matters under policy include the following.
Mandatory legal consequences
The Tribunal has considered whether cancellation would result in the applicant being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without Ministerial intervention.
Cancellation may result in the applicant being detained and removed from Australia if he did not depart under any conditions that may be imposed on her bridging visa. The applicant may be subject to s.48 of the Act which may prevent him from applying for further visas while in Australia. The applicant may be affected by Public Interest Criterion 4013 which may limit the granting of a further temporary visa for a specified period.
Subdivision C of Division 3 of Part 2 of the Act was intended, among other things, to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application. It places an onus on non-citizens to provide accurate information and to correct inaccurate information in relation to visa applications. Relevant in this case is that when a visa applicant fills in an application they must answer all questions and must give no incorrect answers. The applicant did provide incorrect answers and the Tribunal's view is that the applicant has benefitted, significantly, from providing the incorrect answers. He was granted two more visas, an extension to his working holiday visa and a Subclass 457 visa, and thus has had the benefit of residing in Australia since 2016, which is the country where he says he prefers to live and wants to settle and raise a family.
While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if his visa is cancelled, he has benefited from providing the incorrect information in his working holiday visa application and would not have been granted that visa in 2016 if he had provided correct or accurate information about satisfying the work requirement.
Consequential cancellations under s.140
There are no consequential cancellations under section 140 however the Tribunal notes that the applicant’s wife’s dependent 457 visa was separately cancelled for the same reason.
Australia's international obligations
There is no information before the Tribunal that indicates that cancellation of the visa would result in any breach of Australia's international obligations
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
The applicant said he and his wife married a year ago in Australia and they want to have kids but if they go back to Hong Kong the wages are low but the rents and daily expenses are high. If only one person works, there is not enough to support the whole family. Also the education system in Hong Kong places a lot of pressure and stress on students and children and children who grow up in Hong Kong are pressured and this is why there are always cases of children committing suicide, for example by jumping off buildings etc. He wants his kids to be happy and enjoy their school life like they could in Australia.
The applicant said that since he has not been working for the past 12 months they have received some financial support from his wife’s cousin and a friend and also by using their savings. Asked if he thought of returning to Hong Kong after the visa cancellation and since he did not have working rights on his bridging visa, the applicant said both he and his wife love Australia and hope they can stay here. Also, because his English has not been good, he has been taking English classes and sat some IELTS tests. He showed the Tribunal some test results from 2015 and 2016.
Asked if he would like to comment on any hardship to family members the applicant said no. Asked if there was anything else that he would like to say that had not been covered as to why his visa should not be cancelled, the applicant apologised for the wrong information but said because their English was not good they relied on the agent and did not follow up. He said he only realised the wrong information when they received the department’s letter.
The Tribunal explained that section 107 of the Act means that any information a non-citizen gives or provides, causes to be given or provided, or that is given or provided on the applicant’s behalf for a visa is taken, for the purposes of section 100, to be an answer to a question on a non-citizen’s application form.
The Tribunal acknowledges that the applicant regrets the circumstances in which he gave incorrect information and that the cancellation of his visa may result in some financial hardship should he and his wife have to return to Hong Kong and that they would prefer to remain and settle in Australia and raise their children here. However, given that the applicant has not been working and earning an income here for more than a year, and that the applicant has only ever been in Australia on temporary visas with no expectation of permanency, the Tribunal is not of the view that this hardship will be significant such as to weight against the cancellation of the visa.
Having considered all the written and oral evidence before it, 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 be cancelled.
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 be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Karen Synon
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.

[2019] AATA 3184

4 March 2019

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Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Statutory Construction

Judicial Review

Breach

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