Proving Genuine Mistakes in Visa Applications: How to Respond to Section 107 Notices
Can My Visa Be Cancelled for Incorrect Information I Accidentally Wrote?
Yes, your visa can potentially be cancelled under section 109 of the Migration Act for providing incorrect information, even if it was accidental. The key points are:
Section 101 requires visa applicants to provide correct information on their application form. Providing incorrect answers can be grounds for visa cancellation under section 109.
The visa holder's state of mind is not relevant—section 100 states that an answer is incorrect even if the person did not know it was incorrect.
However, the delegate has discretion on whether to cancel the visa and must consider factors like the gravity of the non-compliance and the circumstances in which it occurred.
So, while accidentally providing incorrect information can potentially lead to visa cancellation, the delegate has flexibility in deciding whether cancellation is appropriate in your specific case. We recommend being upfront about any mistakes and explaining them to the delegate for their consideration.
What is the Visa Cancellation Process for Section 107 Notice?
The visa cancellation process under section 109 of the Migration Act involves the following key steps:
The delegate issues a section 107 notice to the visa holder, which:
Provides details of the possible non-compliance (e.g. incorrect information provided)
Gives the visa holder an opportunity to respond in writing by a specified date
The delegate considers any response from the visa holder under section 108.
If the delegate decides there was non-compliance as described in the section 107 notice, they must then consider the matters prescribed in regulation 2.41 before deciding whether to cancel the visa under section 109.
The matters the delegate must consider include:
The correct information
Whether the visa grant was based on incorrect information
The circumstances of the non-compliance
The visa holder's present circumstances and subsequent behaviour
If the delegate decides to cancel the visa under section 109, they must notify the visa holder of the decision, the grounds for cancellation, and information about merits review rights.
The delegate must follow the procedural requirements, consider the prescribed matters, and provide the visa holder with an opportunity to respond before making a cancellation decision. The process aims to ensure procedural fairness.
What Is Section 107 Notice?
A section 107 notice is a notice issued by a delegate under section 107 of the Migration Act. This is a key procedural step before a delegate can consider cancelling a visa under section 109 of the Migration Act. The main purpose of a section 107 notice are:
Purpose of Section 107 Notice:
To provide the visa holder an opportunity to respond to possible instances of non-compliance with sections 101, 102, 103, 104, 105 or 107(2) of the Act.
To give the delegate the legal power to then consider cancelling the visa under section 109 if they decide there was non-compliance.
Content of Section 107 Notice:
The notice must provide particulars of the possible non-compliance.
It must state the visa holder can respond in writing by a specified date.
It must inform the visa holder the delegate will consider cancelling the visa after receiving the response or at the end of the specified period.
It must inform the visa holder about the effects of section 108, section 109, section 111 and section 112.
It must require the visa holder to provide their current residential address.
Issuing Section 107 Notice:
The notice must be issued (given) to the visa holder or their authorized recipient.
There are specific requirements for how the notice can be delivered, such as by registered post.
How Long Do I Have To Respond To Section 107 Notice?
Depending on whether the visa is permanent or temporary, the visa holder has time to respond to a Section 107 notice. Permanent visa holders have a fixed 14-day response period, while temporary visa holders are given a reasonable period as determined by the delegate based on the circumstances of the case.
For permanent visas:
The visa holder has 14 calendar days to respond to the section 107 notice.
The 14 days starts from the day after the date of the notice is taken to have been received.
The 14-day deadline cannot be extended or shortened, but any response received after the deadline before a decision is made must still be considered.
For temporary visas:
The visa holder must be given a "reasonable period" to respond, as no specific period is prescribed in the regulations.
In determining what is a reasonable period, the delegate should consider factors such as:
The visa holder's English skills and any disabilities
The complexity of the notice
How the notice was delivered
The stay period of the temporary visa
The delegate must carefully document why they consider the response period given to be reasonable.
What Will The Department Consider Before Cancelling A Visa Under Section 107 Notice?
According to the meeting context, if a visa holder responds to a Section 107 notice, the department delegate must consider the following matters under Section 108 before deciding whether to cancel the visa under Section 109:
Any response from the visa holder about the possible instance(s) of non-compliance.
Whether there was non-compliance by the visa holder as described in the section 107 notice.
In addition, the meeting context indicates that the delegate must have regard to the following 10 prescribed matters under regulation 2.41 when deciding whether to cancel the visa:
The correct information.
The content of any genuine document.
Whether the visa grant was based on incorrect information or a bogus document.
The circumstances in which the non-compliance occurred.
The visa holder's present circumstances.
The visa holder's subsequent behaviour regarding their obligations.
Any other known instances of non-compliance by the visa holder.
The time elapsed since the non-compliance.
Any breaches of law since the non-compliance and their seriousness.
Any contribution to the community made by the visa holder.
The delegate must weigh these matters in favour of or against cancelling the visa. They cannot simply disregard any of the prescribed considerations. So, the department will thoroughly review the visa holder's response and all the relevant circumstances before making a decision on visa cancellation.
What If My Visa Is Cancelled, What Can I Do Next?
if your visa is cancelled under section 109 of the Migration Act, you have the following options:
Merits review
If the visa cancellation decision is merits-reviewable, you can apply for merits review of the decision to the Administrative Review Tribunal (ART).
The notice of the cancellation decision must inform you about the merits review process, including who can apply and where and when the application must be made.
A merits review enables an independent tribunal to evaluate the accuracy of the department's decision.
Judicial review
If the visa cancellation decision is not merits-reviewable, or if the merits review is unsuccessful, you may be able to seek judicial review of the decision in the courts.
Judicial review examines whether the decision was lawful rather than the merits of the decision.
Applying for a new visa
Depending on your circumstances, you may be able to apply for a new visa after the cancellation if you are still eligible.
However, the cancellation may trigger certain bars or restrictions on making new visa applications.
You should carefully review the notice of the cancellation decision to understand your specific review and reapplication rights and timeframes. Seeking professional immigration advice may also be prudent.
How can Agape Henry Crux Help You?
Don't wait until it's too late. An innocent mistake may lead to serious serious consequences on your visa application. Take the initiative and contact us at Agape Henry Crux to speak with one of our Accredited Specialist Immigration Lawyer(s). Our team of immigration lawyers and registered migration agents can assist you with the next steps, as we specialise in handling highly complex matters. You may schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin, Cantonese and Malay. We can also help you arrange an interpreter if this isn't your language.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.