1730514 (Refugee)

[2018] AATA 5641

1730514 (Refugee) [2018] AATA 5641 (12 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730514

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Nicole Burns

DATE:12 December 2018

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 12 December 2018 at 10:49am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – incorrect information in application – applicant reported lost passport – ethnicity – Faili Kurd – fear of arrest and harassment – Basij – victim of physical attack – victim of extortion – attempt to obtain false passport – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 116

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Sheptitskaya v MIBP [2015] FCCA 159
SZEEM v MIMIA [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 on the basis that that they determined that the applicant had provided incorrect answers with his Protection visa application made on 3 November 2011. 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 28 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, [named], a family friend, Ms [A], and his employer, [named]. 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 attended the Tribunal hearing.

5. 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

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 Immigration 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.

8. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 19 January 2017 which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (visa applications to be correct) of the Act.  He was advised to respond in writing.  The applicant provided a written response in the form of a statutory declaration dated 11 May 2017 and his representative also provided an email in response, dated 24 May 2017.     

9. Having a look at the NOICC as a whole, the Tribunal is satisfied that it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him an opportunity to respond. 

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. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 (visa applications to be correct) as follows.

    Section 101(b) - visa applications to be correct

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 Part B of the applicant’s entry interview, his request for Refugee Status Assessment (RSA) and his application for a Class XA subclass 866 (Protection) visa, lodged on 3 November 2011. 

13. Specifically, as set out in the NOICC, at question 7 of part B of the entry interview where it asks the applicant’s citizenship, and at answer to question 15 of part B of the entry interview where it asks the applicant’s ethnic group he answered ‘stateless’, and at question 1 of part C of the entry interview when asked why  he left his country of nationality the applicant replied ‘first of all because we have no identity in Iran...’ 

14. As well, as set out in the notice, at question 20 of Form 866C of the Protection visa application form, the applicant stated that he was ‘stateless’ when asked his citizenship at birth at question 19; he left the next question (20) blank when asked his current citizenship, indicating he was still stateless; and he answered ‘no’ when asked if he held any other citizenship or was a national of any other country at question 21.  Further, in response to question 42 as to why he left his country the applicant referred to his statutory declaration dated 5 August 2010 provided in support of his request for RSA in which he stated that he left Iran because he was stateless, not recognised because he is Kurdish; he could not be employed due to being stateless and had to constantly bribe the Basij to survive; he lived in constant fear and anxiety of being caught for not having an ID card, and he was bashed and extorted of money; after a few days, he had no choice but to continue selling his [goods] at the street again because he was stateless; and he wanted to lodge a formal complaint, but was too scared because of being stateless, powerless, and he did not want any more trouble.

15. As also set out in the notice, the applicant referred again to his statutory declaration in response to question 45 which asked why he thinks this would happen to him.  In the statutory declaration he states that he would be persecuted by the Basij, the Iranian government and the people because he is stateless Kurdish and also because he left Iran illegally, and being stateless, the Basij will accuse him of being a spy.  Finally, in response to question 46 about whether he thinks the authorities can and will protect him if he goes back, the applicant again refers to his statutory declaration.  In it he states ‘no’ because the Iranian government does not care about the stateless Kurdish.

16. The applicant’s protection visa was granted on 8 November 2011 on the basis of his claims submitted in his request for RSA, statutory declaration and protection visa application that he was a stateless Faili Kurd and feared persecution in Iran on this basis.

17. However on 6 January 2015, as set out in the notice, the Department received a report from another Australian agency stating that [in] July 2013 a person with his biodata[1]attended a [police] station to report that he had lost his Iranian passport.  The notice went on to state that country information suggests that only a person with Iranian citizenship may hold an Iranian passport.  As such the delegate considered that the applicant was not a stateless Faili Kurd, but an Iranian citizen, and was at the time of his Protection visa application. They reasoned therefore that the applicant had provided incorrect information in answer to questions 19 to 21; 42; and 45 to 46 in the Protection visa application form, and had therefore not complied with s.101(b) of the Act.

    [1] [Applicant name] DOB [date]

18. In response to the notice which sets out this information, the applicant provided a statutory declaration dated 11 May 2017 in which he argued that there has not been non-compliance, reiterating that he is a stateless Faili Kurd and does not have any Iranian documents.  He submitted (in summary) as follows:

    ·He is a Faili Kurd and has always been stateless.

    ·He was born in Tehran but was never given Iranian citizenship.

    ·His parents were born in Iraq but are Faili Kurds and stateless.

19. To support his contentions in this regard the applicant submitted a translated copy of his paternal grandparents Iraqi domicile certificates and a translated copy of his father’s Iraq school records.

20. Also provided to the Department in response to the notice was a translated medical certificate for the applicant’s parents in Iran, from 2013; a support letter from the applicant’s current employer who is the director, [Company 1], dated [in] April 2017; a residential tenancy agreement between the applicant and his spouse dated [in] April 2016; a copy of his son’s Australian birth certificate and Australian passport; and a confirmation of early learning enrolment for his son in Australia.

21. In his email to the Department in response to the notice the applicant’s representative explained that in 2013 because the applicant wanted to visit his parents in Iran, who were unwell, he attempted to obtain a fraudulent Iranian passport through a man [named] in Iran who put him in contact with a person called [Mr B] in Australia.  [Mr B] told the applicant to make an official report that he had lost his Iranian passport; provide a drivers license, Australian visa, an Iranian address and some photographs; and pay him AUD[amount]. 

22. In his written submission to the Tribunal the representative states that the other reason the applicant wanted to obtain a (fake) Iranian passport, instead of obtaining an Australia travel document to return to Iran to see his parents was because his wife had experienced problems when trying to enter Iran in late May (2013) on her Australian travel document without a visa.  That is she was detained for 10 hours and only released after the applicant’s wife paid AUD[amount]. 

23. The applicant provided a further statutory declaration dated 24 November 2018 to the Tribunal in which he confirms he is stateless and was never an Iranian national; explains that he tried to obtain a fake Iranian passport to travel to Iran to see his parents (his father had heart problems and his mother had high blood pressure) after experiencing a tough period in detention and being depressed and homesick; this explains why he made a ‘false’ report at the [police] station [in] July 2013 that he had lost his Iranian passport; however he was never an Iranian citizen and was never entitled to obtaining an Iranian passport; that he wished to withdraw his previous statement about losing an Iranian passport; and that he was very sorry for making a false (police) report. 

24. The Tribunal discussed the relevant contents of the NOICC with the applicant at hearing.  He did not agree that there was non-compliance in the manner set out in the notice, because he is and has always been a stateless Faili Kurd.  He explained that in May 2013 his wife had returned to Iran because her father was unwell and had to undergo [surgery].  She travelled on an Australian travel document but because she did not hold an Iranian visa, she was detained and questioned for [number] hours on arrival at the [airport] and only released after she paid the officials there AUD[amount].  Not long after his own father’s health deteriorated, to the point where he was unable to walk, and the applicant decided he wanted to return to Iran to see him (and his mother), however he was afraid to do so using an Australian travel document given his wife’s experience.  He then attempted to obtain a fraudulent Iranian passport in order to return home, thinking it would be easier.  He did this by contacting a person in Iran who put him in contact with a person called [Mr B] in Australia who told him to report to the police that he had lost his Iranian passport (among other things), which he did.  He admitted it was a lie and wrong.  Shortly afterwards he became scared and decided not to pursue the matter any further. 

25. The applicant’s wife confirmed these events in her oral evidence to the Tribunal.  She added that she stayed in Iran for three months in 2013 and had to pay [amount] toman when she left.  After the authorities agreed to let her in the country (after paying them AUD[amount]) she said they stamped an A4 piece of paper with her details and allowed her to stay in the country up until the date of her return ticket: the authorities kept that A4 piece of paper when she left Iran.  They also provided her a written receipt for the AUD[amount] she paid on arrival, but she has not kept the receipt, noting this took place over five years ago and she did not envisage her (and her husband’s) permanent visas would be subsequently cancelled or that she may need to show it as evidence to support how she returned to Iran in 2013. 

26. At hearing the applicant confirmed that he was born in Iran to parents who were born in Iraq as Faili Kurds and who were expelled to Iran around 1980.  Neither his parents or he or his siblings were able to obtain Iranian citizenship or any identity documents apart from a ‘white card’ which he described as ‘useless’.  Given his lack of identity documents he was unable to enrol in school and was taught to read and write through occasional classes at a mosque or through an adult being paid to teach him (and other children) at home for example.  He worked as [Occupation 1] in Tehran, and was often harassed and sometimes physically abused by the Basij.  He married in 2007 – his wife’s father being his mother’s uncle – and he and his wife departed Iran in 2010 on genuine Iranian passports which were not in their names.  They gave these passports to the smuggler in [Country 1] before boarding a boat to Australia.  They left because of the difficult situation they faced living in Iran as Faili Kurds without documentation.  He said that a specific incident not long before they left was the main trigger: that is one night when going out for ice-cream with his wife and her cousin who was visiting from [Country 2], they were stopped by the Basij, he was beaten and his wife slapped.  He was then detained for a few hours and only released after they paid them some money.

27. The Tribunal has considered the information contained in the NOICC, the applicant’s response to the notice, the applicant’s and his wife’s oral evidence to the Tribunal and other relevant evidence before it to assess whether the grounds for cancelling the visa is made out.  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 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, 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].

28. 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. 

29. Dixon J’s comments in Briginshaw v Briginshaw[3] are also relevant in this case, as follows:

    Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[4]

    [3] (1938) 60 CLR 336.

    [4] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

30. The applicant has consistently stated in his Protection visa application, his response to the notice and at the Tribunal hearing that he and his wife are stateless Faili Kurds, despite his wife returning to Iran for three months in 2013 and despite him reporting a lost Iranian passport to the police in Australia that same year.  As such, he contends that he did not provide incorrect answers at the visa application stage.

31. As mentioned, the delegate based the notice on the fact that the applicant had reported a lost Iranian passport to [the] police in 2013. The Tribunal accepts this occurred, noting the applicant’s representative has provided a copy of the police report in question to the Tribunal.  The applicant has not disputed that he made a police report about a lost Iranian passport, but claims it was a false report, undertaken as a first step to obtain a fraudulent Iranian passport via a supplier in Iran with connections in [Australia].  He claims he has never held an Iranian passport.

32. The Tribunal considers reporting a lost Iranian passport at the very least raises a question as to the applicant’s claimed statelessness, as well as more broadly raises concerns about the applicant’s credibility.  However it does not, by itself, in the Tribunal’s view, constitute probative evidence that the applicant is an Iranian citizen and not stateless.  Although the applicant’s explanation proffered as to why he reported a lost Iranian passport as a first step to obtaining a fake Iranian passport to return to Iran without attracting adverse attention to see his ailing parents is questionable, it is plausible. The delegate noted country information that suggests that only persons with Iranian citizenship may hold an Iranian passport.  However there is no evidence before the Tribunal that the applicant actually held an Iranian passport. The representative has submitted that the mere fact that the applicant has falsely reported the loss of an Iranian passport does not mean that he was ever granted Iranian citizenship or eligible for Iranian citizenship. 

33. The Tribunal has considered the domicile certificates (‘white cards’) provided indicating that the applicant’s paternal grandparents were born in Iraq, but were stateless Faili Kurds.  It is submitted that at the time of the white cards, the applicant’s grandparents were recognised Faili Kurds residing in Iraq.  The Tribunal accepts that was the case but notes the relevant question is whether they were stateless, and even if so, it does not necessarily follow that their children (and grandchildren) were unable to obtain Iranian nationality at a later date.  The Tribunal notes the cards are issued in Iraq in 1955 and verify the bearers as ‘Iranian’, which raises some concern, as found by the delegate.  In his written submission to the Tribunal the representative submits that as they were issued by the Department of Residency in Baghdad, it is possible that the Iraqi authorities recklessly claimed the bearer’s Iranian nationality, ‘to politically handball all responsibilities to Iran’.   It is submitted further that the applicant’s grandparents and father were never granted Iraqi or Iranian citizenship and their statelessness was transferred to the applicant.  At hearing the applicant was not sure why his grandparent’s nationalities are listed as Iranian on their white cards, but speculated that perhaps it was because his paternal grandparents’ parents may have been born in Iran, noting that Kurdish Faili were either born in Iraq or Iran.  Or that it was simply an administrative mistake at the time. 

1. Although the applicant’s grandparents cards verify the bearers as Iranian, this does not necessarily confirm they are Iranian citizens and because Iraq had issues with Faili Kurds, it is plausible that it was more of a political move to identity them as such in their cards by the Iraqi authorities at the time.  The cards do indicate that the applicant’s grandparents were not residing in Iran and had not for many years.

2. Translated copies of the applicant’s father’s education records indicating – it is submitted – that he was educated in Iraq have also been provided, as evidence of him (and his parents) residing in Iraq as Faili Kurds before the ethnic cleansing expelling them to Iran.  The Tribunal accepts that the applicant’s father resided in Iraq and was schooled there.  However not all Faili Kurds were stateless and therefore the Tribunal gives this finding little weight.

3. Taking into account the evidence before it, and for the reasons above, the Tribunal is not satisfied as per the requirement in Zhao – that is a real state of satisfaction reached on a consideration of the available material before it - that the grounds for cancellation are made out on the basis that the applicant reported a lost Iranian passport to police in 2013.

4. Although not particularised in the notice, the Tribunal has also considered the fact that the applicant’s wife returned to Iran for three months in 2013, which may cast doubt on her claimed statelessness, and by inference her husband’s (the applicant’s).  The Tribunal notes in this regard that whilst it is restricted to consideration of whether there was non-compliance in the manner particularised in the s.107 notice,[5] it is not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s.107 notification.[6] 

   [5] SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005).

   [6] Sheptitskaya v MIBP [2015] FCCA 159 (Judge Street, 27 January 2015) at [10]-[16].

5. The applicant does not dispute that his wife returned to Iran in 2013 for three months after her Protection visa was granted.  However this does not necessarily mean hers (or the applicant’s) claims at the protection visa application stage to be stateless are untrue, given she stayed for only three months and her claims largely relate to difficulties living there as a stateless Faili Kurd over a period of time.  The fact that the authorities did not harm the applicant’s wife during this period when she returned to Iran is not evidence that she lied about her fears of persecution or the incidents that she said had happened – to her and her husband - when she made her application for protection.  For these reasons, the Tribunal is not satisfied that the applicant wife’s return to Iran for three months in 2013 meant she did not hold a well-founded fear of persecution as a stateless Faili Kurd at the time of her visa application nor, by implication, that the applicant was not stateless at the time of his protection visa application.

6. The Tribunal notes at hearing the applicant said that he has a sister in Australia who came here by boat from Iran a few months after he did, in 2010.  He said that she was also a stateless Faili Kurd and was granted protection on that basis.  However her protection visa has been cancelled subsequently: he thought because she returned to Iran to visit, along with her husband and son.  There is no mention of the applicant’s sister in the NOICC however there is a note on the Departmental file in this case that the applicant’s brother-in-law’s visa was cancelled because of strong evidence that he was an Iranian national, as he has been issued with an Iranian passport.  The Tribunal has had regard to this information.  However even if it accepted that the applicant’s sister is an Iranian national, given women such as his sister are able to acquire Iranian nationality through marriage, it does not necessarily follow that the applicant is (or was at the time of his Protection visa application) an Iranian citizen, as alleged.  The Tribunal is not satisfied that this constitutes evidence that the applicant is an Iranian citizen.

7. The Tribunal notes further that there is a note contained on the Departmental file indicating that the Department had received an allegation on 23 December 2016 that the applicant and his wife, who have refugee visas, had provided a fake story about their background in Iran; that his wife travelled to Iran using an Iranian passport; that they have complete official Iranian documents; that he participated in military service; that his scars on his hand are the result of self-harm to make a story for himself; and that he provided a fake Iranian driver’s licence to have a full Victorian driver’s licence.  The NOICC does not make reference to this allegation.  Furthermore, the allegation is anonymous.  For these reasons the Tribunal gives it no weight.

8. In summary the Tribunal agrees with the delegate that the applicant’s reporting of a lost Iranian passport raises concerns about his alleged statelessness, however it does not, in the Tribunal’s view, confirm that he is (and was) an Iranian citizen to the requisite level as required by Zhao.  In his response to the NOICC and at hearing the applicant has consistently claimed to be a stateless Faili Kurd and his description of the difficulties he faced in Iran as a result were detailed and consistent with his initial claims provided at the protection visa application stage and with his wife’s oral evidence to the Tribunal.  [Ms A] – a friend initially from Iran who the applicant and his wife met on the boat to Australia – also gave evidence to the Tribunal confirming that the applicant and his wife are stateless Faili Kurds.  Although not without doubt, the Tribunal has given their oral evidence some weight in the applicant’s favour when considering whether the grounds for cancellation have been made out.

9. For the reasons set out above the Tribunal finds that the grounds identified by the Minister’s delegate have not been established such that it has reached a real state of satisfaction that incorrect information was provided. For these reasons, 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

10. 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.