1509158 (Migration)

[2016] AATA 3022

1509158 (Migration) [2016] AATA 3022 (11 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Maria Aracelle Lumbang Sese
Mr John Golimlim Sese
Mrs Patricia Subida Lumbang
Miss Millen Johnelah Lumbang Sese
Master Gabrielle John Lumbang Sese

CASE NUMBER:  1509158

DIBP REFERENCE(S):  BCC2014/3498376

MEMBER:Bruce MacCarthy

DATE:11 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189 -  Skilled - Independent visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 11 January 2016 at 2:46pm

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 first named applicant’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis the applicant had not complied with s.101(b) of the Act when completing her application for the visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant).  The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act.  As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 15 December 2015 to give evidence and present arguments.  The Tribunal also received oral evidence from the applicant’s sister and brother-in-law, and from two members of the applicant’s church.  The applicants were represented in relation to the review by their registered migration agent.

5. 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

6. 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.

7. 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.

   Did the notice comply with the requirements in s.107?

8. In the present case, there is a question as to whether the notice issued on 23 May 2015 by the Minister’s delegate complied with s.107.  As explained in greater detail below, the notice referred to answers given in the application form in relation to (a) whether the applicant had a suitable skills assessment from the relevant assessing authority and (b) whether the applicant had undertaken an English language test within the previous 36 months. 

9. While, for reasons explained in paragraph 17 below, the Tribunal is of the view that the particulars set out in the particulars of evidence indicating non-compliance in relation to the issue of an English language test were incorrect in one respect, it is satisfied that the delegate had reached the necessary state of mind to engage s.107 in relation to the non-compliance relating to the issue of a skills assessment, and that the notice issued under s.107 complied with the statutory requirements in relation to that issue.

   Was there non-compliance as described in the s.107 notice?

10. 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) when she applied online for the Subclass 189 visa, in the following respects:

    ·the applicant answered in the affirmative to the question on page 10 of the application form “Does the applicant have a suitable skills assessment from the relevant assessing authority?”;

    ·she said in the application that her nominated skilled occupation was “ICT Business Analyst”, that the assessing authority was the Australian Computer Society, that she had a skills assessment dated 12 December 2012 with the reference/receipt number “44283”;

    ·the applicant answered in the affirmative to the question on page 13 of the application form “Has the applicant undertaken an English language test within the last 36 months?”

    ·She provided further information regarding the English language test she claimed to have undertaken, saying that the test was an IELTS test conducted on 4 June 2013; that the test reference number for that test was “133400092MORT400G” and that her language ability was “Superior”.

11. The notice stated that, based upon the information provided by the applicant in her application, she was found to satisfy the criteria for the grant of the visa and was granted a Subclass 189 visa on 9 December 2013.

12. The notice went on to point out that the Department had received information from the Australian Computer Society, that they had no record of the applicant been given the skills assessment and that they had no record of the reference number she had given in her application and had no record of her name in the database. 

13. The notice also stated that the department had undertaken checks with the “IELTS Test Report Form Verification Service” and that those checks had shown that there was no record of the applicant having undertaken an IELTS test; that there was no record of the reference number she had provided and that there was no record of her name in the IELTS data base.  The notice said that, on the basis of the evidence it had obtained it appeared that the applicant had provided incorrect answers in her application form. 

14. The notice invited the applicant’s comments on the possible non-compliance as identified, and her migration agent replied on her behalf on 19 June 2015, enclosing a declaration by the applicant.  In brief, apart from giving details of her previous life in the Philippines, and a current life in Australia, she said that her sister and brother-in-law (who live in Australia) were advised by a friend that they had a chance come to Australia and that all of their paperwork would be handled and they would not have to worry about anything.  She named the person who provided the paperwork for her.  The final paragraph of her statutory declaration included the following:

    How do I get involved in this scam?  I was contacted by a relative that there was a case officer who will process my paper and that there is a possibility based on my skill to apply for immigration here in Australia. ….

15. However, while tacitly acknowledging that she had given incorrect answers to questions in her application form, she did not provide the correct answers.

16. The agent said that he would be providing further submissions in relation to Regulation 2.41 in the following week, but no further submissions were received.  The delegate, after notifying the agent in an email message sent at around noon on 1 July 2015 of her intention to make a decision by close of business that day, the delegate decided to cancel the visa at 6 p.m. on 1 July 2015.

17. At the hearing, the applicant and her migration agent told the Tribunal that they accepted that the notice issued on 23 May 2015 had complied with the requirements of s.107.  However, the Tribunal is aware, from evidence in the Department’s file, that there is a record of the IELTS reference number given by the applicant in the IELTS verification service, though that reference number refers to a test undertaken by a different person (a man with a different surname to hers, different given names and a different date of birth.  Therefore, while the information obtained by the Department indicates that the applicant gave incorrect information regarding the English language test, the particulars given in the notice were incorrect in one aspect.

18. Nevertheless, the Tribunal is satisfied that the notice complied with the requirements of s.107, as it related to the non-compliance regarding the question of a skills assessment. 

19. At the hearing, the applicant confirmed that her  skills for the Nominated Skilled occupation of ICT Business Analyst [a skilled occupation with the ANZSCO Code 261111 listed in IMMI 13/066 , the instrument applicable at the time the visa was granted] had not been assessed by the Australian Computer Society on 12 December 2012, as stated in her answer in the application form or indeed at any other time.  Given this evidence, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

20. 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).

21. 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 content of the genuine document (if any)

    ·     whether the decision to grant a visa 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.

22. Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

    The correct information

23. In her application form, the applicant said that her skills for the nominated skilled occupation had been assessed as suitable by the relevant assessing authority, the Australian Computer Society, on 12 December 2012.  As noted above, the correct information is that her skills have not been assessed by the relevant assessing authority at any time.

    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

24. It is not in dispute  that the decision to grant the visa was based in part on the basis of incorrect information that the applicant’s skills were suitable for her nominated skilled occupation.

    Would the visa would have been granted if the correct information had been given?

25. A necessary criterion to be satisfied for the grant of the visa was that the applicant’s skills had been assessed, by the relevant assessing authority, as suitable for her nominated skilled occupation; cl.189.211(1).  Had the correct information been included in the application form, the visa would not have been granted.

    Are there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act?

26. Cancellation of the applicant’s visa will result in the automatic cancellation, under s.140 of the Act, of the visa is held by the applicant’s husband, mother and her 2 children who are applicants.  There is now a third child but that child was born after the applicant’s visa was cancelled and did not hold a Subclass 189 visa. 

    Would the visa cancellation result in Australia breaching its international obligations?

27. The Tribunal has considered whether the fact that cancellation of the applicant’s visa will result in a consequential cancellation of the visa is held by her children, would be in breach of the Convention on the Rights of the Child (CROC).  The applicant has made no such explicit claim, though she has claimed out that she and her family have settled into her local community. 

28. The applicant have now been in Australia for approximately 2 years.  The evidence before the Tribunal indicates that the 2 children who are applicants in the present matter are aged 15 and 8.  Therefore they have spent the majority of their lives in the Philippines, the country of their nationality. 

29. The third child, who is not an applicant in the present matter was born in 2015.  She has not reached an age where she would yet to be aware of Australian culture.  All 3 children are citizens of the Philippines.  Contrary to an assertion made in one of the references submitted by the applicant’s agent on the day before the hearing, the applicant and her agent confirmed that the third child is not a citizen of Australia, having been born after the applicants’ subclass 189 visas were cancelled.

30. This is not a case where cancellation of the applicant’s visa would result in the family being separated.  If she returns to the Philippines, all her family will return to that country.  The children will therefore continue to live with their parents.   There is evidence before the Tribunal that the applicant has other family members still living in the Philippines.  While the Tribunal accepts that the family will be in a better financial situation if they remain in Australia, having regard to the relatively short period of time the family has lived in Australia, the Tribunal does not consider that their return to the Philippines would constitute a denial of any rights of the children have under CROC.

31. In her response to the Department’s notice, the applicant said she had “no whatsoever political, religious, or ethnic reasons that I don’t wish in returning home.”  The Tribunal interprets this as meaning the applicant does not claim to be owed protection obligations by Australia.  There is nothing to suggest that the visa cancellation would result in Australia breaching any other international obligations. 

    The circumstances in which the non-compliance occurred

32. In written submissions and in oral evidence presented at the hearing, the applicant said that the circumstances which led to the current situation were that an official of the Department made contact with the applicant’s brother-in-law and effectively invited them to lodge an application.  The oral evidence was that he asked if there was anyone with a degree in one of the areas of skill which were in demand in Australia.

33. The applicant said in written submissions that they trusted this person because he was a close friend of the applicant’s brother-in-law and accepted his assertions that everything that was going to be done was in accordance with the rules.  However, the Tribunal does not accept this.  At the hearing, the applicant said that she did not receive any official receipt from the Department, as no funds were paid directly to the Department.  When the Tribunal discussed this with the applicant and said she must have been aware, in these circumstances, that that the procedure was irregular, she acknowledged that she had realised this at the time.

34. In oral evidence by witnesses and in various character references submitted to the Tribunal, it has been said that the applicant and her family are good people who have not broken any other rules, and that their participation in what applicant described as a “scam” was at the instigation of the officer concerned.  They presented evidence that indicated that person had accepted bribes amounting to hundreds of thousands of dollars in a number of cases and that he had since been sentenced to a term of imprisonment. In oral submissions to the Tribunal, the applicant’s agent said that in some countries, including the applicant’s home country, fraud is a fairly common part of life.

35. The agent also said that the applicant now realise that what she had done was wrong and that, if the decision to cancel the visa was overturned, the offence would not be repeated.  As the Tribunal pointed out at the hearing, however, there would be no need for any further breaches of s.101 if the decision to cancel the visa was overturned, because the purpose of the breach would have been achieved.

36. While the Tribunal accepts that, but for the approach of the officer concerned to the applicant’s brother-in-law, the situation would not have arisen, the fact remains that the applicant took advantage of the offer by the officer concerned to achieve a migration outcome that would otherwise have been unavailable to her.

37. As the Tribunal pointed out to the applicant at the hearing, it regards the giving of false information in the visa application as a very serious issue, especially when that information led to the granting of visas which not would not otherwise have been granted.  The Tribunal gives considerable weight to the provision of incorrect information asserting that the applicant had a suitable skills assessment.  The Tribunal considers that it is strongly in the public interest that people should not benefit by giving false information to secure a migration outcome that would otherwise be unobtainable.

    The subsequent behaviour of the visa holder concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act

38. As discussed with the applicant at the hearing, s.105 of the Act requires that, when the applicant became aware that an answer given or provided in an application form was incorrect when it was given or provided, she should have as soon as practicable notified an officer in writing of the incorrectness and of the correct answer.  Although, as pointed out by her agent, she conceded in her statement to the Department that false answers were given in the application, she has at no time formally identified all incorrect answers in the application form or provided the correct answers.  Given that the applicant has been represented by her current firm of migration agents for some months, the Tribunal would have expected her to have complied with her obligations under s.105. 

39. In this regard, the Tribunal asked the applicant at the hearing whether, since the notice was issued she had gone through the application form with the migration agents to check whether there were any other incorrect answers in the form beyond those identified in the notice.  She said she had done that and assured the Tribunal that there were no further incorrect answers.  However, as discussed in greater detail below, there were other incorrect answers in the application form.  At the hearing, the migration agent said that he had not personally gone through the form with the applicant, though other members of his firm may have done so.

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

1. Although the Tribunal did not take into account the issue of answers regarding the applicant’s English language proficiency in the context of whether or not there was non-compliance of the kind mentioned in the notice, it told the applicant at the hearing that, nevertheless, the fact that the applicant had given an incorrect answer regarding her English language ability was a factor it would be taking into account.  As noted above, in her application form she had said that she had undertaken an English language test on a particular date and had given the test reference number for that test.  She said that her language ability was “superior”.  At the hearing, she confirmed that this was stated in her application but that she had not undertaken the test in question.

2. As discussed with her at the hearing in accordance with the provisions of s.359AA of the Act, the Tribunal has identified other instances where incorrect information was given in the application.  The Tribunal pointed out that the application falsely stated that the applicant’s husband had undertaken an IELTS test with the result that he had functional English whereas the test to which he had referred was a test undertaken by a different person.

3. The Tribunal also pointed out that it was stated in the application that the applicant’s mother had functional English, though there was no basis for that assertion.  This information was relevant because, by asserting that those 2 people had functional English, the applicant was able to avoid having to pay additional visa application charges. 

4. It was also relevant because it indicated that the applicant had earlier given incorrect information to the Tribunal when she said she had checked the application form since the notice was given and had verified that there were no other incorrect answers in the application form.  Another incorrect answer in the application form had been the answer that her husband had a University degree, whereas the oral evidence by the applicant and her husband was to the effect that he had only a certificate level qualification. 

5. When invited to comment on, or respond to this information, and reminded of her right to seek more time in which to do so the applicant elected to comment immediately.  She said that she had not given the incorrect information or herself, but the officer who solicited the application had completed all forms.  She then said that this was the first time she had seen the application form, though the Tribunal notes that her agent had a copy of it. 

6. The applicant also told the Tribunal that an answer in her application form indicating that she had worked as a business analyst for a firm named Spectrum was incorrect.

7. While accepting that the incorrect information was entered into the application form by the officer who solicited the application and was paid a bribe for the processing of it, the Tribunal would have expected the applicant to have checked the form following receipt of the Department’s notice and to have identified all incorrect answers.

   The time that has elapsed since the non-compliance

8. As the non-compliance identified in the notice occurred when the application was submitted on 24 October 2013, some 26 months ago.  The Department’s file does not clearly identify when the Department became aware of the non-compliance, but the notice was issued on 19 May 2015.  The applicants were therefore placed on notice that cancellation of the visa was a possibility the visa might be cancelled, within 19 months of the non-compliance.  The Tribunal does not consider that the period since the non-compliance to be particularly lengthy.

   The present circumstances of the visa holder

9. At the hearing, the applicant told the Tribunal that, up until shortly before her third child was born, she had worked in a fish shop.  She confirmed that it has been many years since she has worked in the field related to computer technology for business analysis.

10. In written submissions, and in oral evidence, supported by witnesses, the applicant has said that she and her family sold up everything in the Philippines in order to finance their travel to Australia.  They have said that, if they returned to the Philippines they will have nothing to return to.  The applicant told the Tribunal that by working in Australia, she was able to provide financial support to her sister and brother-in-law in the Philippines while paying her way while she and her family lived with her sister and brother-in-law in Australia.  She said she was also supporting her mother-in-law.  At the hearing, she confirmed that her mother-in-law was also in the Philippines.  She said she also supports her mother (the third applicant), who is a 70 year old widow who receives no benefits and is wholly dependent upon the applicant.  The Tribunal accepts the evidence regarding the family’s financial situation, but does not consider, in all the circumstances, that this is a factor which outweighs the seriousness of the non-compliance.

    Any contribution made by the holder to the community.

11. The applicant has also presented evidence that she and the family are well regarded in their community, particularly in their local church.  She has referred to her first two children’s achievements at school and sport and to her first child’s part-time work.  One of the witnesses attested to the contribution made by the applicant’s elder daughter to outreach work done with young people in their local area.  The Tribunal has no reason to doubt any of this evidence but, again, it does not consider this to outweigh the serious of the non-compliance, even when taken together with the present circumstances of the family.

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

12. The Tribunal is not aware of any breaches of the law since the non-compliance other than her failure to strictly comply with the provisions of s.105.

    Conclusion

13. 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

14. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189 -  Skilled - Independent visa.

15. The Tribunal has no jurisdiction with respect to the other applicant[s].

    Bruce MacCarthy
    

    Member

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.

    105The particulars of incorrect answers to be given

    (1)if a noncitizen becomes aware that:

    (a)      an answer given or provided in his or her application form; or

    (b)     an answer given in his or her passenger card; or

    (c)      information given by him or her under section 104 about the formal card; or

    (d)     a response given by him or her under section 107;

    was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

    (2)Subsection (1) applies despite the grant of any visa.

    106Obligations to give etc. information is not affected by other sources of information

    The requirement for a noncitizen to comply with sections 101, 102, 103, 104 and 105 is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to:

    (a)any information given by the noncitizen for purposes unrelated to the noncitizen’s visa application; or

    (b)any other information.

    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.