1710641 (Refugee)

[2020] AATA 5042

1710641 (Refugee) [2020] AATA 5042 (5 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710641

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Nicole Burns

DATE:5 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 05 November 2020 at 12:08pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – incorrect information in application – nationality – stateless Faili Kurd – undocumented resident of Iran – woman of foreign nationality who marries Iranian husband considered an Iranian subject – effect of brief religious marriage to Iranian citizen – divorced before registration of marriage – distinction under Sharia law between ceremony and registration – Iranian citizenship follows official registration of marriage – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109

CASES

SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa because they were satisfied that the applicant provided incorrect answers in her protection visa application in breach of s.101 of the Act.   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. The applicant appeared before the Tribunal on 19 October 2020 via teleconference to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. He participated in the hearing via telephone from Adelaide.

5. The Tribunal notes initially it set down the hearing as a video hearing, however the applicant requested the matter be heard by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant, including her request to do so. The Tribunal also had regard to its 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 telephone. The hearing proceeded without any apparent communication problems.  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. On the Departmental file is a copy of a Notice of Intention to Consider Cancellation (NOICC) dated 13 February 2017, which advised the applicant that her visa may be cancelled under s.109 because of concerns that she did not comply with s.101(b) (no incorrect answers are given or provided in filling in or completing her application form) of the Act.  She was advised to respond in writing.  The applicant’s representative provided a written response dated 27 February 2017.  

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.  

    Notice of Intention to Consider Cancellation (NOICC)

12. The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to her protection visa application in some respects.  Specifically, it states the applicant claimed to be a stateless Faili Kurd (among other things) in her Refugee Status Assessment (RSA) dated 4 May 2010, born in Iraq yet residing in Iran since 1980 after her parents were expelled from Iraq, and her father was given a Green Card in Iraq.  The applicant also stated that she was married to an Iranian man (‘[Given Name A]’[1]) in 2007, however he left her after four months.  On the basis of this (and other) information, the applicant was assessed as someone to whom Australia owed protection, the Minister removed the bar preventing her from lodging a valid visa application in Australia, and the applicant lodged a protection visa application on 30 August 2010.  

    [1] In response to the NOICC the representative states the applicant’s former husband’s name is [Given Name B, a spelling variation of Given Name A], although refers to him as [Given Name A] at times throughout the submission.  In her written submission to the Tribunal and at hearing the applicant confirmed her former husband’s name is [Given Name B].

13. The NOICC records that in her protection visa application form the applicant provided answers to several questions, including about her citizenship and marital status: claiming to be separated/divorced and stateless.  She sought protection so she did not have to return to Iran, referring to her RSA statement of claims, in which she states she left Iran because she had no rights or protection from the state as a Faili Kurd and divorced woman in Iran.  She also claimed not to have any identity documents.  The applicant claimed consequently she would be unable to go out, do anything alone, and would have no state protection.  The applicant was granted a protection visa on 1 September 2010.

14. The NOICC goes on to record that the applicant lodged an application for Australian citizenship on 2 September 2014 and she was interviewed in relation to that application on 23 June 2015. During the interview she denied she was an Iranian citizen because she married an Iranian man and indicated she had destroyed her marriage and divorce certificates, according to information contained in the NOICC. 

15. However referring to Article 976 of Iran’s Civil Code, which states every woman of foreign nationality who marries an Iranian husband is considered to be Iranian, the delegate was of the view that the applicant was Iranian on marriage and therefore not stateless as claimed at the time she applied for protection. According to the notice, such information indicated that the applicant had provided incorrect information in association with her protection visa application that she was stateless, undocumented and did not have legal status in Iran: specifically in answers to questions 21, 23, 44 and 46 of form 866C of her protection visa application.

    Response to the NOICC

16. In response to the notice which sets out this information, the applicant’s representative provided a written submission dated 27 February 2017.  In it he submits that the applicant refutes the assertion that she is an Iranian citizen by marriage, or any other means and he disputes the delegate’s interpretation of Iranian nationality laws. The applicant was only religiously married, there was no official registration or recognition of the marriage, and therefore there could be no ancillary processes such as those linked to citizenship, he argues. Even where a marriage is registered, it only entitles recognition as a ‘subject’, yet the applicant claims that she was never registered and never acquired status as a subject.  The other key points submitted by the representative are as follows (in summary):

    ·Iranian citizenship is not an automatic eventuality from marriage.

    ·The applicant married [Given Name B] in 2007 under Sharia law; it was a religious marriage only, conducted by a Mullah in front of witnesses; for it to become official, the Mullah’s certificate must subsequently be taken to the Office of Notary Public who registers the marriage with the Interior Ministry; the ceremony and registration are two distinct aspects to a marriage and it is possible to have the ceremony without official recognition of marriage.  However, for any official outcomes (such as citizenship) to follow on from marriage, any such union must first be legally registered.

    ·[Given Name B] promised to arrange for the marriage to be registered however failed to do so (or even provide the necessary documentation from the Mullah).  Instead, he locked the applicant in a room in his house and subjected her to abuse and violence. After four months she escaped, went home (to her parents) and the same Mullah who had performed the religious marriage performed the divorce under Sharia law.

    ·A religious marriage does not have the sanction of official recognition.  To register as an actual marriage, all the necessary paperwork for registration and the Mullah’s original documentation must be presented to the Notary Public with two male witnesses in attendance: until then there is no official, secular marriage even though a religious marriage may exist.

    ·The Department does not accept religious marriages as valid (in other respects), only properly registered and officially recognised marriages. This is the case, for example, in respect to the definition of ‘spouse’.  

    ·Religious marriages in Iran can be instruments of convenience with little social, cultural or official meaning.  For example, ‘temporary’ marriages.

    ·Marriage in Iran (like Australia) is an important step towards a future citizenship but does not guarantee citizenship.   

    ·With respect to Article 976 of the Civil Code, a woman who marries an Iranian husband acquires the right to be a ‘subject’, but that is not the same as a ‘citizen’.  Legally the terms have two distinct meanings. 

    Review application

17. On review, the representative provided a written submission to the Tribunal, dated 19 May 2017, which contained similar arguments to those put forward in his response to the NOICC, as summarised above.  He said that whilst the facts of this case (as recorded by the delegate) are not in dispute, the delegate’s interpretation of the Iranian Civil Code to argue that the applicant automatically became a citizen by virtue of marrying an Iranian man is flawed.  The representative emphasised and elaborated upon the following matters:

    ·With respect to marriage under Sharia law in Iran, the ceremony and registration are two distinct aspects and it is possible to have the ceremony without official recognition of marriage: however, this is critical for any official outcomes (such as citizenship) to follow on from marriage. That is, any such union must first be legally registered. 

    ·Whilst socially accepted as a form of marriage, religious marriages in Iran are not recognised in themselves by the authorities as a fully valid and registered union: recognition requires that the marriage is fully and properly registered through the Notary, which did not happen in the applicant’s case. 

    ·The two forms of marriage in Iran are quite distinct in terms of the status they carry and benefits they give: religious marriage is culturally and religiously acceptable, but it does not carry the full weight of the official sanctions granted by a registered marriage. The applicant’s marriage was only ever recognised at a religious level, and that is why the Mullah was able to perform the divorce.  If it had been fully recognised and officially recorded, the divorce could have only happened by application of [Given Name B]. 

18. Additionally, a signed written statement from the applicant dated 3 October 2020 was provided to the Tribunal.  In it she confirms her background, and reiterates in Iran she was stateless, despite being married to an Iranian man for a brief period in 2007, because he never registered the marriage, which took place under Sharia law.

19. At hearing the Tribunal discussed with the applicant the relevant contents of the NOICC.  She disputed the delegate’s finding that she provided incorrect information at the protection visa application stage about being stateless, and undocumented (and about her related fears) based on her marriage to an Iranian man in 2007. She said her marriage was not official – a religious marriage only – and she never received citizenship or related rights or privileges. She explained that whilst the plan was for her husband to register their marriage and undertake the necessary steps for her to become an Iranian citizen, he never did; instead he abused her and limited her movements.  She left him after four months, returning to her family home in Tehran and obtaining a divorce – essentially reversing the religious marriage – through the same Mullah who had married them several months earlier.  If the marriage had been officially recognised, she would have never been able to obtain a divorce unilaterally. 

20. When asked if there is any documentation pertaining to her marriage or divorce (under Sharia law), the applicant said there was a handwritten document confirming she had been married, which she later destroyed. 

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

21. The Tribunal has considered the information contained in the NOICC, the representative’s response to it, the applicant’s oral and written evidence to the Tribunal, the representative’s submissions to the Tribunal, and other relevant material before it to assess whether the grounds for cancelling the visa are made out.

22. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.  However, where, as in visa cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

23. While that case was concerned with cancellation under s.116, the Court’s comments are equally applicable to s.109 cancellation, as in this case.

24. The Tribunal must rely on grounds referred to in the NOICC and is restricted to consideration of whether there was non-compliance in the manner particularised in the notice: SZEEM v Minister for Immigration.[3]  In this case the NOICC particularises answers allegedly not given correctly concerning the applicant’s statelessness and related fears of persecution (and lack of state protection) in Iran.  The delegate concluded these answers were incorrect given the applicant had married an Iranian man in Iran and was therefore considered to be an Iranian, as set out earlier.

    [3] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234.

25. The applicant acknowledges she married her husband, [Given Name B], in 2007 under Sharia law and that he is an Iranian citizen.  She has consistently claimed that was the case and despite the absence of a marriage certificate, the Tribunal accepts that is the case.  She claims he was violent and abusive, they separated four months later, and the Mullah who married them also granted her a divorce under Sharia law.  The Tribunal also accepts her evidence in this regard, which has been consistent since the time she first applied for protection.  The applicant agues, however, that her husband never registered their (religious) marriage and the applicant argues she has no status as an Iranian national. 

26. The delegate rejected the applicant’s submission in this regard, arguing that by operation of law, a woman is deemed to be an Iranian citizen by marriage to an Iranian man.  She noted in the decision record that on the Iranian government website (Ministry of Cooperatives, Labour and Welfare) ‘subject’ is translated as ‘national’ in Farsi, which she took to mean that Iranian citizenship is automatically bestowed upon the person once marriage has taken place; it is only for documentary evidence that the marriage needs to be registered; and that regardless of whether (the applicant was) married for four months or whether or not the marriage had not been registered, or she was later divorced, she was deemed to be an Iranian citizen at the time of marriage, and does not lose her Iranian citizenship after dissolution of the marriage but would currently hold Iranian citizenship.  The delegate drew parallels between these marriage entitlements and the status of children born to Australian permanent residents, contending that such children are citizens and would only need to access the paperwork in order to obtain a passport, for example.  As noted earlier, the representative has disputed the delegate’s interpretation of the law in this (and other) respects.  He argued these two instances are not comparable because children in the delegate’s example obtain citizenship through jus sanguinis (right of blood); the situation for marriage confers neither jus sanguinis nor jus soli (right of the soil); and that marriage may only create the right of access to citizenship, but does not of itself confer citizenship. 

27. In relation to the reference to ‘Iranian subject’ in Article 976, the delegate proposed that the word ‘subject’ is either archaic (and applied mostly in British law) or else can be rendered in Farsi as the same word as for ‘national’.  This was disputed by the representative, who noted in his submission that ‘subject’ has distinctly different connotations from the word ‘national’ or ‘citizen’, and that it is not appropriate to suggest that being a subject is the same as being a citizen.  The law in question specifies ‘subject’ not ‘citizen’, and in the applicant’s case, as she was only religiously married, and there is no official registration or recognition, there could be no ancillary processes such as those linked to citizenship, he submits.  Even if it is argued that citizenship follows marriage, the accurate interpretation is that it can only follow the official recognition of marriage.  In order for the governmental processes to take place, the starting point is the proof of marriage; this comes only when the marriage is recognised as meeting the requirements and can be registered; and only then can the processes suggested by the delegate take place, the representative argues.  As there is no registration (of the marriage) in this case, therefore there is no citizenship. 

1. Taking into account these submissions on the issues (including the delegate’s findings), and the accepted facts of this case, the Tribunal considers the key question is whether a  marriage in Iran must be registered with the authorities for Article 929 of the Civil Code to apply.  To assist in this regard, the Tribunal has considered the relevant law and independent country information about the registration process and requirements, as follows.

2. According to Article 976 of the Civil Code, ‘every woman of foreign nationality who marries an Iranian husband’ is considered to be an Iranian subject.[4]  While amendments were made to the Civil Code in June 2020, these reforms do not appear to have changed this provision.[5]

   [4] ‘The Civil Code of the Islamic Republic of Iran’, Alavi and Associates, 2008.

   [5] ‘Iranian citizenship law for children of foreign fathers approved’, Info Migrants, 4 June 2020.

3. In a 2017 advice from the Embassy of Pakistan, Washington DC, it is explicitly stated that where a foreign woman marries an Iranian man, the marriage must be officially registered with the Iranian authorities in order for the woman to be considered an Iranian citizen, as per the Iranian Civil Code.[6]

   [6] ‘The marriage registration between an Iranian man and a woman of foreign nationality', Embassy of Pakistan, Washington DC, Interests Section of the Islamic Republic of Iran, 1 January 2017.

4. More generally, sources indicate that unregistered religious marriages in Iran are not officially recognised by the Iranian authorities and therefore are not considered to be legally valid by the state.  Whilst religious marriages are legal in Iran, these unions are not registered by the Iranian authorities and religious marriages must be registered with the authorities in order to be considered legally valid by the state[7]. 

   [7] ‘Marriage in Iran: Women Caught Between Shi’i and State Law’, Rahbari, L, Electronic Journal of Islamic and Middle Eastern Law’, Vol 7, 2019, p.43; ‘Iran: Discrimination through Citizenship’, Nikou, S N, Human Rights Brief, 13 January 2015, pp.5-6 ; ‘Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights’, Human Rights Watch, 20 November 2013, p.69.

5. An article published in the Electronic Journal of Islamic and Middle Eastern Law[8]in 2019 states that under Iranian law, ‘an Islamic marriage does not require registration to be juristically valid’ however, ‘it does require registration to be considered lawful’.  It states: 

   As such, unregistered marriages are religiously valid and as long as proof or witnesses of marriage exist, they are not considered indecent behaviour (and are thus not punishable by law like pre-marital relationships); however, they are considered illegal and do not enjoy legal protection… The existence of such strict rules, however, does not mean that unregistered marriages do not take place. The problem of unregistered marriages in Iran is widely understudied and most national statistics published by the government of Iran do not include it in their databases.[9]

   [8] The Electronic Journal of Islamic and Middle Eastern Law is an open-access peer reviewed ppublication by the Center for Islamic and Middle Eastern Legal Studies (CIMELS) at the Faculty of Law, University of Zurich, Switzerland.

   [9] ‘Marriage in Iran: Women Caught Between Shi’i and State Law’, Rahbari, L, Electronic Journal of Islamic and Middle Eastern Law’, Vol 7, 2019, p.43

6. The Electronic Journal of Islamic and Middle Eastern Law article provides the following overview of the process to register a marriage in Iran:

   In Iran, permanent marriages take place only after a compulsory submission of an application by the couple, followed by an official process that includes blood tests and possible vaccinations. If the application is approved, registration of the marriage by a legal authority and entering the marriage information in the birth certificates of both spouses will become compulsory.[10]

   [10] ‘Marriage in Iran: Women Caught Between Shi’i and State Law’, Rahbari, L, Electronic Journal of Islamic and Middle Eastern Law’, Vol 7, 2019, p.43.

7. Under changes to the nationality law introduced in June 2020 that allow Iranian women married to foreign men to pass Iranian citizenship onto their children, children are only eligible for citizenship if their parents are in an official marriage that has been registered with the authorities. Iranian women who are in unofficial or informal marriages with foreign men must first register their marriages with the Iranian authorities before they can apply for Iranian citizenship for their children.[11]

   [11] ‘Iranian citizenship law for children of foreign fathers approved’, Info Migrants, 4 June 2020.

8. Given these considerations and country information, the Tribunal accepts the applicant was (and is) unable to obtain Iranian citizenship without her marriage to her husband – an Iranian national – being officially registered.  The country information does not support the contention that a non-Iranian woman is deemed to be an Iranian citizen by marriage to an Iranian man automatically, without the registration process.  In the applicant’s case, the Tribunal accepts her marriage under Sharia law to [Given Name B] in 2007 was never registered and therefore not considered legally valid by the Iranian state.  Accordingly, the Tribunal is not satisfied that the applicant provided incorrect information in the visa application about being stateless, undocumented and her related protection claims and fears. 

9. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

   CONCLUSION

10. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) 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.