1732790 (Migration)

[2019] AATA 6861

1732790 (Migration) [2019] AATA 6861 (19 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732790

MEMBER:Antoinette Younes

DATE:19 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 19 August 2019 at 3:02pm

CATCHWORDS
MIGRATION – cancellation – subclass   (Five Year Resident Return) visa – applicant provided incorrect information –returns to Egypt following the grant of the protection visa – fears harm on the basis of his faith and religious activities –applicant did not practise his faith when in Egypt –father’s illness – Australian citizen child – decision under review set aside

LEGISLATION
Migration Act 1958, ss 36, 101, 102, 103, 104, 105, 107, 109

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v CASA (2014) 226 FCR 555
Zhao v Minister for Multicultural Affairs [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 and s. 107A 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 24 July 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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 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. 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?

9. 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.

10. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.107A of the Act.

11. Section 101 of the Act provides that:

    Visa 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.

12. Section 107A of the Act provides that:

    Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

    (a)  may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)  if so specified, can constitute a ground for the cancellation of that visa under section 109;

    include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

13. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record a copy of which the applicant provided to the Tribunal in support of the application for review.  Relevantly, the Tribunal noted the following:

    a)[In] August 2007, the applicant arrived in Australia as the holder of a [student] visa. On 24 January 2011, the applicant lodged an application for a subclass 866 protection visa and as part of the application, the applicant provided a Form 866 – Application for a Protection (Class XA) visa.

    b)On the Form 866, at question 1, the applicant provided his full name and date of birth as[date]. At question 41 of the Form, he indicated that he was seeking protection in Australia so that he does not have to return to Egypt.

    c)At question 42, he indicated that he was a practising Christian from a religious family and that he had experienced many years of discrimination from the Muslim community due to his religious beliefs. He also indicated that the discrimination increased to persecution for both him and his brother who was able to escape to [Country 1]and the applicant escaped to Australia.

    d)At question 43, the applicant claimed that in case of his return to Egypt, he fears that he would be further persecuted and may be killed. At question 44, he indicated that he feared harm and mistreatment at the hands of the Islamic community, sheiks and the authorities. At question 45, he indicated that this would happen to him because the “Muslim population and authorities are intolerant of Christians in Egypt”.

    e)At question 46, he indicated that he did not think that the authorities of Egypt would protect him because they do not provide protection to Christians – the authorities will “persecute or turn a blind eye to persecution of Christians”.

14. As referred to at question 42 of the Form 866 , the applicant provided a written statement setting out his protection claims. Essentially he claimed that:

    i)   His family background is religious and all members of the family serve the church in some form. He was a [Title 1] at the church. As a Christian, he has experienced many incidents of discrimination, including at school where Christian students were forced to learn the Koran and they were beaten if they did not. Christians were insulted in the streets and stones were thrown at them especially after church.

    ii)     When he was at university, he was part of [a] support group which provided support to Christians at university who were living away from home. In 2006, he began further services with the Evangelical church because he was very interested in helping Muslims as well as Christians know more about Christ.

    iii)   His brother [was] involved in similar work with the Evangelical Church.  In late 2004, his brother was involved in the conversion to Christianity of a well-known Muslim man. His brother got into a lot of trouble as a result by extremists and internal security. His brother eventually fled Egypt.

    iv)   He and his father were detained and questioned by the internal security and the case continued for many years even though his brother was no longer in Egypt. They were frequently harassed and one month before he left Egypt, he was attacked by those who were after his brother.

    v)    He has continued his Christian activities in Australia. He met women who have converted to Islam because they have Muslim boyfriends. Many of those women do not know anything about Islam and he has tried to explain basic Islamic ideologies. He feels he should let those people know so they can decide if Islam is suitable for them. A female was very thankful to him for having explained things before she married. 

    vi)   Most of his work in Australia is online to people in Muslim countries because there is freedom in Australia for people to be able to get information they want.

    vii)  When he returned to Egypt in 2008, he became involved with a group of men from two different churches who were searching for a Christian girl who had been kidnapped and forced to Islam. He and six men were threatened by the sheik.  They were questioned and threatened by the internal security on three occasions during which they were treated badly and beaten. They threatened him not to walk in his brother’s footsteps. The remaining men were threatened with the kidnapping of their own sisters so the group stopped all their activities.

    viii) In December 2010, [Mr A] was taken by the internal security because of his activities in assisting people to convert. At the same time, they went to his parents’ home asking about the applicant. He was only able to speak to [Mr A] in January and he told him things about what happened.

    ix)   During his visit to Egypt, he saw that he could not live freely like he does in Australia. He could not promote his religion.

    x)    The last 12 months in Egypt have shown that the Islamic and anti-Christian feelings have increased and there have been many attacks on Christians and Churches.

15. The delegate’s decision record further indicates that:

    a)On 21 May 2011, the delegate was not satisfied that the applicant was a person to whom Australia has protection obligations. However, on 9 February 2012 and although doubting the applicant’s credibility, the RRT remitted the matter for reconsideration with the direction that the applicant met s.36(2)(a) of the Act. Consequently, the applicant was granted a protection visa on 28 February 2012.

    b)[In] 2013, the applicant was issued with a new Egyptian passport. On 18 March 2014, the applicant and [Ms B] lodged an application for a [Partner] visa and in support of that application, a marriage certificate was provided dated [August] 2014.

    c)As part of the Partner visa application, [Ms B] was interviewed on 23 October 2014 and during that interview she provided information that:

    ·    The applicant is a friend of her [relative]. [In] October 2013, the applicant asked her [relative] to meet her and they met [on] [date] October 2013. She and the applicant met on a daily basis for a week and they got engaged and had an engagement party [in] November 2013. The applicant stayed in Egypt until December 2013.

    ·    The applicant and [Ms B] stayed in contact via [social media] until the applicant returned to Egypt in July 2014. They married in church [in] August 2014. They had a wedding reception [and] their respective families attended.

    d)Movement records indicate that since the grant of the protection visa, the applicant travelled outside Australia [from] June 2013 to [December] 2013 (six months). The incoming passenger card provided to the Department [in] December 2013 indicates that the applicant spent most of his time in Egypt.

    e)The applicant travelled from [July] 2014 to [October] 2014 (three months) and  [March] 2016 to [March] 2016 (two weeks).  The incoming passenger card provided to the Department [in] March 2016 indicates that the applicant spent most of his time in Egypt.

    f)The applicant travelled from [April] 2017 to [May] 2017 and [March] [2016] (.  On his arrival at Melbourne airport, he was interviewed by a Departmental officer and during that interview, he advised that he had travelled to Egypt with his wife.

16. On 7 July 2017, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC).

17. In a Statutory Declaration dated 5 August 2017, the applicant responded as follows:

    ·All the answers he provided in the application for a protection visa and during the interview were correct.

    ·He travelled to Egypt on four occasions and each time it was for a specific reason and he was clear that he would not be involved in religious activity. His first visit to Egypt was one year and four months after he was granted the visa and the visit was due to the urgency relating to his father’s health[1].

    ·The RRT found that there would be risk of harm if he were to return to Egypt. If he were to return, and would not get involved in religious activities, he would not attract the attention of the authorities or Islamist groups. The situation would be different if he were to live permanently in Egypt because he would have to stop his religious activities.

    [1] The applicant provided copies of clinical notes relating to his father covering [specified periods]. He also provided a death certificate and information relating to tours.

18. In submissions dated 5 August 2017, the former representative referred to the decision of the RRT finding the applicant to be overall credible and contended that the applicant’s returns to Egypt had legitimate purposes, including the father’s ill health and getting married.

19. The representative argued that if the applicant were to return to Egypt, he would need to modify his behaviour in order to remain safe.

    International Treaties Obligations Assessment (ITOA)

20. On 11 September 2017, the Department finalised an ITOA concluding that there is not a real chance or a real risk of the applicant facing serious or significant harm if he were to return to Egypt.

    Documents

21. The applicant provided the Tribunal documents including :

    ·Letter of support [referring] to the applicant’s son who has “demonstrated developmental progress since his transition” into their learning environment.

    ·Letters of support including from [various organisations and individuals].

    ·Clinical reports in relation to the applicant’s spouse who suffers from [medical conditions].

    ·Income Tax returns.

    Evidence at hearing

22. The applicant gave evidence that he came to Australia in 2007 and he completed a number of courses. He stated that in September 2008, he returned to Egypt to attend his mother’s [memorial] service. He stated that when he was in Egypt and when his brother in law came to pick him up from the airport, the brother-in-law had a fatal accident. The applicant stayed in Egypt for seven weeks to attend to a number of matters including the brother-in-law’s funeral.

23. The applicant discussed an issue with a childhood friend called [Mr C] who disappeared and the belief that the Sheik was involved in the kidnapping. He stated that he and six others were involved in looking at what had happened to [Mr C]. He said as a consequence, they were subjected to harassment by the Sheik as well as others. He said they were warned and stones were thrown at them. He said they were questioned by the police on three occasions the last of which was in October/November 2008. He stated that the police warned them that it wasn’t their job to investigate or look into [Mr C]’s disappearance. He said they were tortured and when asked to explain what he meant, he said they were hitting them so that they can get information out of them. He said they were forced to remain at the police station overnight as punishment.

24. The Tribunal noted the three year delay in the applicant seeking protection and indicated to him that this could raise doubts about his protection claims. The applicant stated that at the end of 2010, a friend of his called [Mr A] was detained and asked about the matter relating to [Mr C]. He said [Mr A] was not charged and that he had spoken to him after his release. The applicant said after the incident relating to [Mr A], he was concerned. The Tribunal asked him what has happened to [Mr A] and the applicant replied that [Mr A] is still in Egypt and that he is working. The Tribunal raised with the applicant concerns about this version of events. The applicant stated that [Mr A] has no options and that [Mr A] has been attempting to leave Egypt.

25. The Tribunal discussed with the applicant his returns to Egypt following the grant of the protection visa. The applicant did not dispute that he returned to Egypt on three occasions and provided a number of explanations. In relation to the first occasion, he stated that his father was unwell and was hospitalised for a month in relation to [medical] conditions. Subsequent to the father’s discharge, he went home and the applicant looked after him. The applicant explained to the Tribunal that his sister in Egypt is a widow and a mother. She runs a [business] and it was difficult for her to look after her father subsequent to his discharge from hospital. He said his father had to return for further surgery and he remained in hospital for another two weeks. The applicant said his father suggested to him that it is time for him to marry and recommended a potential spouse. They got engaged [couple of] days after they met. They kept contact on his return to Australia. 

26. The applicant gave evidence that he returned to Egypt in July 2014 to make arrangements for the wedding in August. He stated that they celebrated their honeymoon in [Country 2] [in] September 2014. He said they did not stay at his parents’ home.

27. In relation to the third visit, he stated that he went to Egypt to attend his father’s funeral. He stated that his father died in [Country 1]where he was staying with the applicant’s brother. He said the family had to make arrangements for the father’s body to be returned to Egypt where he was buried. He stated that he returned to Egypt on the fourth occasion to accompany his wife who was suffering from a number of ailments and mental health challenges. He said he stayed in Egypt until his wife’s health improved.

28. The Tribunal asked the applicant if when he returned to Egypt he faced any harm and he confirmed that he did not; he stated that he did not practise his faith when he was in Egypt and he was very cautious. The Tribunal discussed with the applicant the conclusions of the ITOA and that the Tribunal gives weight to those conclusions. The applicant continued to claim that he fears harm in returning on the basis of his faith and religious activities.

29. The applicant gave evidence that in Australia he is actively involved in religious activities such as preaching, advocating Christianity and speaking openly to others about his faith. He stated that if he were to return to Egypt, he would not be in a position to do so for fear of harm.

30. In relation to the exercise of the discretion, the applicant referred to a number of matters including but not limited to his fear of harm in case of his return, the fact that he has a son who is an Australian citizen, his establishment of a business in Australia, the medical treatment plan for his wife and his contribution to the church in Australia.

    FINDINGS AND REASONS

31. There were aspects of the applicant’s claims that cause concerns for the Tribunal. The concerns relate to the plausibility of the claims relating to [Mr C] and the fact that there was a substantial delay in applying for the protection visa. The Tribunal also gives weight to the findings of the ITOA concluding that there is not a real chance or a real risk of the applicant facing serious or significant harm if he were to return to Egypt. The Tribunal does however accept that the applicant is religious ([Title 1]) and that he actively practises and promotes his faith in Australia. The Tribunal further accepts that if returned to Egypt, the applicant would continue to be involved in those activities, or that if he would not continue that would be out of fear of harm. The Tribunal is satisfied that in case of his return, the applicant would need to modify his conduct in order to avoid harm.

32. The task of the Tribunal in this instance is to determine whether there was non-compliance by the applicant in the way described in the s.107 notice.

1. When the applicant applied for a protection visa, he claimed that he feared harm on religious grounds.  He claimed that the authorities of Egypt could not protect him. He feared that he would be harmed in case of his return and that the authorities could not protect him. Central to the applicant’s claims are that the applicant is a Coptic Christian, his involvement in Christian-related activities as well as the claim relating to the search for [Mr C]. The Tribunal observes that the RRT in decision 1106412  had accepted the substance of the applicant’s claims. He was granted the protection visa on that basis.  

2. The Tribunal conducted a hearing and is satisfied that the applicant is a Coptic Christian and that he is actively involved in Christian related activities in Australia. On the evidence, the Tribunal is satisfied that his involvement in those Christian related activities are in good faith and consistent with his religious commitments. Apart from the applicant’s returns to Egypt, there is no other evidence before the Tribunal to raise doubts about the applicant’s central claims. Although it is plausible that the applicant has embellished some of those claims, that potential embellishment cannot in itself discredit the entirety of the applicant’s claims. The Tribunal is not reviewing a protection visa application refusal and the Tribunal appreciates that it is reviewing the cancellation of a subclass 155 visa granted upon the applicant meeting the criteria for that visa.

3. The concept of onus and standard of proof are not generally applicable in the context of administrative decision making[2]. The Tribunal refers to judicial guidance in relation to the cancellation of a visa and in particular the state of satisfaction required.  Although the decision of Zhao v MIMA[3] relates to a cancellation pursuant to s.119 of the Act, its principles are applicable to a cancellation pursuant to s.109. Relevantly, the Court held:

   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 cause 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.[4]

   [2] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 29.

   [3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000).

   [4] Ibid, at [25] and [32].

4. The Tribunal considers the cancellation of a visa to be serious and significant, requiring a state or level of satisfaction reached subsequent to the proper consideration and critical evaluation of probative material. In Sullivan v CASA[5], the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences, the Tribunal “would express greater caution in evaluating the factual foundation for the decision to be reached”[6].

   [5] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

   [6] At [120].

5. In that decision, the Court referred to Briginshaw v Briginshaw[7], where his Honour Dixon held[8] ‘… 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. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…”

   [7] Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362.

   [8] At [362].

6. The delegate’s decision to cancel the applicant’s subclass155 visa is based on the fact that the applicant had returned to Egypt on four occasions, contrary to the protection claims he had made that he could not return. The delegate considered that returning to Egypt undermined the applicant’s claims to such a degree to mean that the applicant had provided incorrect answers when he applied for the protection visa.

7. There is no dispute that the applicant subsequent to being granted the protection visa, had returned to Egypt on four occasions. In the application for a protection visa, the applicant claimed that he could not return to Egypt for fear of being harmed on the grounds, amongst other things, of his religious faith.

8. The Tribunal acknowledges that the returns to Egypt raise doubts about the applicant’s claims as well as his fear of potential harm in case of return. The returns arguably raise questions about the applicant’s subjective fear of harm. The applicant has provided a number of explanations for the returns. The applicant has provided evidence and the Tribunal accepts that the applicant went to Egypt on the first occasion primarily to see his ill father. He went to Egypt on three subsequent occasions to see his fiancée, to get married, for his father’s funeral, and to accompany his wife who was suffering from mental and physical challenges. The Tribunal considers those reasons to be significant and the Tribunal has given them weight. The Tribunal is nevertheless concerned about the applicant’s returns to Egypt. However, there is no probative evidence before the Tribunal, apart from the returns, to support a finding that the applicant has provided incorrect answers when he applied for the protection visa.

9. The Tribunal appreciates that returning to the country of claimed persecution raises legitimate questions about the subjective claimed fear of harm as well as the truthfulness of the claims made. However, without more, the Tribunal is not satisfied that the returns mean that the applicant has provided incorrect answers to the relevant questions identified by the delegate. Although the Tribunal has doubts, those doubts are not sufficient for the Tribunal to reach a level of satisfaction to make a finding that the applicant has indeed provided incorrect answers.

10. In consideration of the evidence as a whole and for the stated reasons, the Tribunal is not satisfied that the applicant’s returns to Egypt mean that the applicant has provided incorrect answers to the relevant questions of Form 866C.

11. For the stated reasons, the Tribunal has not reached the state of satisfaction required to find that the applicant had provided incorrect answers in the application for a protection visa. 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.

12. Even if the Tribunal were wrong about the finding that there was no non-compliance by the applicant in the way described in the notice given under s.107 of the Act, the Tribunal is of the view that there are strong factors including but not limited to, the fact that the applicant has an Australian citizen child, the mental and physical health of his partner, and his contribution to the Australian community would mean that the Tribunal would not exercise discretion to cancel the visa.

13. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Antoinette Younes

    
    Senior 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.