1723299 (Refugee)

[2018] AATA 5052

1723299 (Refugee) [2018] AATA 5052 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723299

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Luke Hardy

DATE:2 November 2018

PLACE OF DECISION:  Sydney

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 02 November 2018 at 11:04am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – incorrect answers in visa application – imputed political opinion – working with foreign businesses – fear of Mahdi Army – fear of killing – subsequent repeat visits to Iraq – valid notice of intention to cancel visa – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994, Schedule 2

CASES

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 on the basis of having determined that there was non-compliance by the applicant with s.101 of the Act, namely, subsection 101(b) of the Act, in that the applicant provided incorrect answers to various questions on his protection visa application form 866.

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

4. For the following reasons, I have concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

   Background

7. The applicant is a Shi’ite Muslim from Basra in southern Iraq. He arrived in Australia [in] April 2012 as an unauthorised maritime arrival (UMA). He underwent an arrival interview and indicated an intention to request protection. He lodged an application for a Protection (class XA Protection (subclass 866) visa on 13 July 2012.

8. The applicant claimed to have worked with [a foreign] company in Iraq from [specified year] to [year]. He claimed that a number of Iraqi co-workers were killed in various attacks on the company over the years. He claimed that he had been directly intimidated on occasions by the Mahdi Army. He claimed fear of the authorities not being able to protect him because the Mahdi Army had infiltrated the Iraqi government.

9. A delegate of the Minister refused the applicant’s protection visa application on 13 September 2012. The delegate’s decision was set aside by the then-Refugee Review Tribunal [in] 2013.

10. Details regarding the applicant’s subsequent visits to Iraq are provided in the NOICC extract below. It appears the applicant may have breached a condition of his protection visa, namely condition 8559 (Must Not Enter Country of Reference), but that is not particularised as a reason for cancellation in the NOICC, and so it is not an issue before me.

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

11. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107.

12. The 9 November 2016 NOICC reads as follows:

    Particulars of grounds for cancellation:

    I consider that there has been non-compliance with the following section(s) of the Migration Act:

    s101(b) This provision relevantly provides that "a non-citizen must fill in his or her application form in such a way that... no incorrect answers are given."

    By operation of s99 of the Act, 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.

    Particulars of the possible non-compliance:

    You first entered Australia [in] April 2012 as an unauthorised maritime arrival.

    On 13 July 2012 you subsequently applied for a subclass 866— Protection visa. The application form Application for a Protection (Class XA) visa, which incorporated form 866C, that you submitted to the department included the following information in Part C:

    At question 42 where it asks "I am seeking protection in Australia so that I do not have to go back to (give name of country or countries)" you answered "Iraq".

    At question 43 where it asks "Why did you leave that country?" you answered "PL see statement".

    At question 45 where it asks "What do you fear may happen to you if you go back to that country?" you answered "PL see statement".

    At question 46 where it asks "Who do you think may harm/mistreat you if you go back?" you answered "PL see statement".

    At question 47 where it asks "Why do you think this will happen to you if you go back?" you answered "PI see statement".

    At question 48 where it asks "Do you think the authorities of that country can and will protect you if you go back?" you indicated No and answered "PL see statement".

    At question 67 you signed the declaration which states:

    "The information I have supplied or caused to be supplied on or with this Part C of the form 866 is complete, correct and up-to-date in every detail"

    In your attached statutory declaration/statement dated 13 July 2012 you made the following claims:

    ·You are a citizen of Iraq and do not have right to citizenship, or to reside in any other country. You are from Arab ethnic group and a Muslim Shi'a;

    ·You were born in Al Nasria in Iraq and studied to complete [level] of your school education;

    ·Your life was in danger by Mahdi Army because you were working for [a foreign] company by the name [Business 1] from – [specified years]. This company [conducts specified business];

    ·You stated the Mahdi Army considers anyone working or associating with foreign forces as their enemy;

    ·In 2005 you were working in an important role in this [foreign] company;

    ·On one occasion you were accompanying some [foreign] soldiers including [a leader]. There was a bomb explosion and the armoured vehicle was damaged from outside, and inside the occupants (including yourself) were bruised. As a consequence you experience [an injury] due to the explosion;

    ·Another time in 2007 one of your co-workers, after he finished his work and was in his car, was attacked by members of the Mahdi army, injuring him;

    ·People working with or even near [foreign] bases would often be killed;

    ·You were targeted because you were working with [a foreign] company;

    ·You were threatened by the Mahdi Army and were living in fear. Due to this you were scared you may lose your life, or be seriously injured, and that your family wanted you to leave;

    ·The Mahdi army have infiltrated the government of Iraq, including the police; and

    ·You believed if you returned to Iraq you "...would face a real chance of serious physical harm and be killed by Mahdi Army."

    On 13 September 2012 your Application for a Protection (Class XA) visa application, was refused by the Department on the basis your claims did not amount to a real chance of persecution should you return to Iraq. The delegate therefore, was not satisfied that Australia owed protection obligations to you under the 1951 Refugees Convention, as amended by the 1967 Refugees Protocol.

    In response to this result you lodged an appeal of the decision with the Refugee Review Tribunal (RRT) on 29 September 2012.

    [In] 2013 the RRT found in your favour, setting aside the Departments refusal decision, and remitting with direction as they found you to be owed protection obligations from the Australian government.

    Subsequently, on 27 June 2013 you were granted a protection visa on the basis you were seeking protection from the Australian government due to a well-founded fear of persecution in Iraq on the grounds of imputed political opinion. Your protection visa had visa condition 8559 (Must Not Enter Country of Reference) imposed when granted.

    Following the grant of your protection visa, you were issued a Titre de Voyage [number] by the Australian government. [In] August 2013, six weeks after the grant of your protection visa, you used this Titre de Voyage to depart Australia. The outgoing passenger card you completed indicated the country where you would spend the most time abroad was Iraq.

    You re-entered Australia using your Titre de Voyage [number] [in] November 2013. The incoming passenger card you completed upon re-entering Australia stated the country where you spent most time abroad was Iraq.

    [In] June 2014 you obtained a letter from the Consulate-General of the Republic of Iraq. The letter you received advises you are an Iraqi citizen, and appears you have requested this document to help facilitate your return to Iraq.

    [In] June 2014 you departed Australia using your Titre de Voyage [number]. The outgoing passenger card you completed indicated the country where you would spend the most time abroad was Iraq.

    [In] February 2015, upon returning to Australia, your baggage was examined by the Airport border staff and the letter from the Consulate-General of the Republic of Iraq referenced above, was located on your persons. You also presented your Titre de Voyage [number] which contained an entry stamp indicating you entered Iraq [in] August 2013 and an exit stamp indicating you departed Iraq [in] November 2013. There was also an Iraqi entry stamp dated [in] June 2014, as well as an Iraqi exit stamp dated [in] February 2015.

    On 08 October 2015 you requested and were approved by the Department to travel to Southern Iraq on compassionate grounds to visit your ill [relative]. The approval allowed you to travel to Southern Iraq from [a date in] October 2015 to [a date in] November 2015. You subsequently departed Australia [in] October 2015 and returned to Australia on [an earlier date in] November 2015 utilising your new Titre de Voyage [number], which was issued to you on [in] September 2015.

    Therefore, the answers you provided to questions in your Application for a Protection (Class XA) visa application which incorporated form 866C, in relation to your fear of persecution from the Mahdi Any, whom you stated had infiltrated the Iraqi government, are deemed to be incorrect. This is due to the information obtained by the department as detailed above. Specifically I consider you have provided incorrect information in response to:

    ·Question 42, in response to which you stated Iraq. The fact you have returned to Iraq on several occasions since the grant of your protection visa is paradoxical to your claims. These actions, including returning to Iraq so soon after the grant of your protection visa, indicates you did not hold an adverse political profile, nor were of interest to your claimed persecutors (The Mahdi army) at the time of the grant of your Protection (class XA) Protection (subclass 866) visa;

    ·Question 43, in response to which you claimed your life was in danger due to threats from the Mahdi Army as a result of your work with [the foreign] company by the name of [Business 1]. This is not supported by the unhindered length of time you have spent in Iraq since the grant of your protection visa, without harm befalling you, and therefore, I consider you were not of interest to the Mahdi army as you claimed in your protection visa application;

    ·Question 45, in response to which you stated you believed if you returned to Iraq you would face a real chance of serious physical harm, and/or death. The evidence before me disputes this claim, as you have been able to return to Iraq, and have able to reside there for considerable periods of time without any evidence of any harm occurring to you. This evidence indicates you did not hold the claimed adverse political profile at the time of grant of your Protection (class XA) Protection (subclass 866) visa;

    ·Question 46, in response to which you stated you believe the people who would persecute you is the Mahdi Army. This is not supported by the fact you have returned to Iraq several times since the grant of your protection visa without any evidence indicating harm occurred to yourself, and therefore, disputes that you held an adverse political profile at the time your Protection (class XA) Protection (subclass 866) visa was granted.

    ·Question 47, in response to which you claimed your persecution by the Mahdi Army was due to Mahdi Army considering anyone working or associating with foreign forces as their enemy, as well as the knowledge the Mahdi Army had threatened your life. As you have returned to Iraq, and have spent approximately a year living there, on/off since the grant of your visa, it is highly likely that you never held the imputed political opinion you claimed the Mahdi Army were persecuting you for; and

    ·Question 48, in response to which you stated you did not believe the Iraqi authorities could protect you as the Mahdi Army had infiltrated the government of Iraq, including the police. However, your ensuing actions of returning, and staying in Iraq for substantial periods of time, without harm, demonstrates the Iraqi authorities have been able to sufficiently protect you. Also, the fact you claimed the Mahdi Army has infiltrated the Iraq government would mean they would have access to movement records which would alert them to your arrivals in Iraq.

    I consider that you have not complied with section 101(b) of the Migration Act in relation to the answers you provided in your protection visa application, in particular to questions 42, 43, 45, 46, 47 and 48 in part C of Form 866, and to answers provided in your Statement of Claims statutory declaration dated 13 July 2012 in which you declared that you held an adverse political profile. Whereas, in actual fact, the evidence indicates you never held the adverse political profile as claimed when you submitted your Form 866- Application for a Protection (Class XA) visa application.

    If you have failed to fill in your application form in such a way that no incorrect answers were given, or provided, then your visa may be cancelled under section 109 of the Migration Act.

13. The delegate proceeded to advise the applicant of action he should take.

14. In an 11 November 2016 statutory declaration, submitted in response to the NOICC, the applicant conceded that he had undertaken a number of trips back to Iraq following the granting of his protection visa. He also conceded that such conduct would not normally support the claims of a well founded fear of being persecuted in that country. In the cancellation decision, the delegate said that the applicant, in his 11 November 2016 statutory declaration, confirmed that he had provided incorrect information, in regard to his fear of being harmed in Iraq due to his imputed political profile. I do not agree, on the evidence before me, that the applicant conceded having provided incorrect information in his protection visa application. However, in any event, what the applicant is perceived to have conceded is irrelevant if the NOICC was invalid in the first place.

15. As shown above, the delegate specified the applicant’s answers to six questions (42, 43, 45, 46, 47 and 48) in his 866 protection visa application form as answers containing incorrect information. I shall discuss each of the delegate’s observations individually.

16. With regard to Q.42, the applicant evidently told the then-Immigration Department in 2012 that he was seeking protection from having to go to Iraq. The delegate correctly observed that the applicant had visited Iraq soon after the granting of his protection visa. However, in observing that the applicant’s action was “paradoxical” to the claims in his 2012 protection visa application, the delegate did not give adequate particulars as to how or why the applicant provided incorrect information in his 2012 application to the Department. The action in returning to Iraq might have been unwise, or misguided or in bad faith, but the delegate did not explain how that action that in itself showed the originally-stated fear to be “incorrect information”. The delegate appeared to confuse the issue further by saying that the applicant’s action in re-entering Iraq was an indication that he did not hold an adverse political profile in that country and was not of interest to his claimed persecutors at the time of the grant of his protection visa. The NOICC, however, does not state in particular that the applicant gave any information about having an adverse political profile or being of interest to claimed persecutors in his answer to Q.42 in his protection visa application form. The NOICC is furthermore confusing because it juxtaposes the applicant’s action in re-entering Iraq with an inference as to his claimed state of mind at the time his visa was issued, whereas the purpose of the NOICC is to clarify what incorrect information the applicant provided to the Department in his protection visa application.

17. A cancellation under s.109(1) is predicated on the provision of incorrect information and the s.107 notice must fairly inform the applicant of the incorrect information upon which the cancellation is being considered so the applicant is adequately equipped to provide relevant material in response.[1]  I find that the NOICC, in this instance, did not adequately equip the applicant in the requisite manner.

    [1] Zhao v MIMA [2000] FCA 1235

18. With regard to Q.43, the delegate put to the applicant that “the unhindered length of time [he had] spent in Iraq since the grant of [his] protection visa, without harm befalling [him]” did not support the claim he had made in his protection visa application about his life being in danger due to threats from the Mahdi Army as a result of [his] work with [the above-named] [foreign] company”. In saying that the applicant’s more recent time in Iraq “does not support”  a claim he made a year before, the NOICC does not give adequate particulars as to how the claim the applicant made at Q.43 amounted in itself to “incorrect information”. It does not give particulars as to how and why re-entering Iraq and temporarily residing there renders “incorrect” an earlier claim about being “of interest” to the Mahdi Army. In focusing on a perceived incongruity in the applicant’s more recent actions and in appearing to set something of a time–limit on when the Mahdi Army was supposed to have already harmed a person with well founded fear of such harm, the NOICC did not fairly inform him of the “incorrect information” upon which the cancellation was being considered so he was adequately equipped to provide relevant material in response.

1. With regard to Q.45, the NOICC again points out a perceived incongruity between the applicant’s claimed fear of being seriously harmed or killed in Iraq and his having gone back there for substantial periods. The NOICC goes on to state that the applicant’s action in returning to Iraq indicates that he did not have an adverse political profile in Iraq at the time his protection visa was granted. The NOICC states that the applicant claimed he faced a real chance of being harmed or killed in the event of return to Iraq; it then proceeds to treat him as though he would, or will be harmed or killed, which, for the purposes of eligibility for a protection visa, is a very different proposition from facing a “real chance” of such treatment. The NOICC did not give particulars as to how and why the claim about facing a real chance of being harmed or killed amounted in effect to incorrect information in light of the applicant having gone to Iraq, stayed there a few times and come back to Australia as yet unharmed. Meanwhile, whereas the delegate draws the inference that the original claim about fearing serious harm or death amounted, in effect, to “incorrect information”, the NOICC, as drafted, confuses the issue by suggesting disingenuousness or incorrectness on the part of the applicant “at the time of grant of” his protection visa. In this instance, I find that the NOICC did not give such particulars as to inform the applicant fairly of the “incorrect information” upon which the cancellation was being considered so he was adequately equipped to provide relevant material in response.

2. Regarding Q.46, the NOICC suffers the same logical problems as it does in relation to Q.45. It asserts that the applicant’s return to Iraq on multiple occasions, without yet having suffered harm from the Mahdi Army, indicates that he did not have an adverse political profile there at the time his protection visa was granted. Again, the time of the granting of the visa is not relevant to when or where the information considered to be “incorrect” was given. The NOICC does not adequately particularise how and/or why the applicant’s visits to Iraq in and after 2013 means that the fear of the Mahdi Army as claimed by him in 2012 amounts to “incorrect information”. 

3. Q.47 is about the applicant having claimed that the Mahdi Army considered anyone working or associating with foreign forces to be an enemy. This was a claim about imputed political opinion. The delegate, in the NOICC, proposed that since the applicant had returned to Iraq, and had spent approximately a year living there since the granting of his protection visa application, it was “highly likely” that what he had originally claimed as political opinion imputed to him by the Mahdi Army had never been imputed. The information given by the applicant was information about, or an opinion of, the Mahdi Army, to the effect that it considers anyone who has worked or associated with foreign forces to be an enemy. I find that the NOICC does not adequately particularise how and/or why this description of the Mahdi Army is taken to be “incorrect”. I find that the NOICC merely seems to imply that the applicant, as demonstrated by his subsequent actions, might not be regarded by the Mahdi Army as an affiliate of foreign interests as claimed. For these reasons, I find that the NOICC, in this as in other instances, did not give such particulars as to inform the applicant fairly of the “incorrect information” upon which the cancellation was being considered so he was adequately equipped to provide relevant material in response.

4. Turning to Q.48, the NOICC again juxtaposes the applicant’s return to Iraq with his assertion to the effect that, due to the Mahdi Army having infiltrated various arms and instruments of government, the Iraqi authorities was unable to protect people who are enemies of the Mahdi Army, and proposes, ipso facto, that the applicant’s individual action renders the whole assertion incorrect. The NOICC goes on to draw an inference from the applicant’s original statement that does not appear, on the particulars set out within it, to be fairly drawn: it says “the fact you claimed the Mahdi Army has infiltrated the Iraq government would mean they would have access to movement records which would alert them to your arrivals in Iraq.” At no point does the NOICC state where or when the applicant ever provided such information about the Mahdi Army having infiltrated the Iraqi government to such a degree as to have comprehensive access to records of persons entering the country. Accordingly, I find again that the NOICC did not provide the applicant with such particulars as to inform him fairly of the “incorrect information” upon which the cancellation was being considered so that he could be adequately equipped to provide relevant material in response.

5. For these reasons, I find that the notice was not a valid notice for the purposes of s.107. As a valid s.107 notice is a precondition to the exercise of the power under s.109, the power to cancel the visa did not arise.

6. It is one thing to form the view that, in re-visiting Iraq on a number of occasions, the applicant acted in a way that was inconsistent with his earlier-claimed fear of being persecuted there. Such a view seems supportable on the facts. It is another thing to assert that the information supporting the claim at the time it was made was “incorrect” simply in light of subsequent actions on the applicant’s part. There is a reasonable question here as to whether the applicant, over time, acted in good faith with the visa granted to him, but that in itself does not necessarily make the information he initially provided to the Department “incorrect”.

7. Meanwhile, I note that, at least prior to the third visit, the applicant informed the Department of his need to visit Iraq temporarily to see his seriously ill [relative]: on 8 October 2015 he was approved by the Department to travel to southern Iraq on compassionate grounds to visit her. As detailed above, he was allowed to travel there from [a date in] October to [a date in] November 2015. He departed Australia [in] October 2015. He returned on [an earlier date in] November 2015. He kept to the timeframe imposed by the Department. In this light, it is arguable that, between [the permitted date in] October and [the earlier date in] November 2015, he was back in Iraq with the Department’s blessing. Sitting beside the perceived incongruity of the applicant returning to a country where he recently claimed a fear of being persecuted is the arguable incongruity of permitting the applicant to travel to Iraq temporarily on expressly acknowledged compassionate grounds, on an Australian-issued Titre de Voyage, potentially leaving him with the impression that he was acting in good faith, and then cancelling his protection visa upon his return here.

   Conclusions

8. I have considered the information before me and have found that the notice purportedly issued under s.107 of the Act was not a valid notice. As a valid s.107 notice is a precondition to the exercise of the power under s.109, there was no power to cancel the visa. It follows that the delegate’s decision to cancel the visa must be set aside.

   DECISION

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

   Luke Hardy
   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.

   104Changes in circumstances to be notified

   (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

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

   105Particulars of incorrect answers to be given

   (1)If a non‑citizen 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 form or 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.

   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.