1828364 (Refugee)

[2019] AATA 1181

1828364 (Refugee) [2019] AATA 1181 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828364

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Antoinette Younes

DATE:19 March 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 866 (Protection) visa.

Statement made on 19 March 2019 at 6:05pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – ground for cancellation – provided incorrect answers in visa application – returned to Afghanistan on two occasions – raised doubts regarding claimed fears – engaged for three years – pressure by in-laws to return and marry fiancée – brother went missing – sister-in-law seriously ill – state of satisfaction required – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 109

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v CASA (2014) 226 FCR 555
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 the applicant did not comply with s.101 of the Act which requires a non-citizen to fill in his or her application form answering all questions correctly. 

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. The applicant appeared before the Tribunal on 14 March 2019 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

9. Extracts of the Act relevant to this case are attached to this decision.

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 of the Act.

12. Section 101 of the Act provides that a noncitizen must fill in his or her application form in such a way that:

    (a)  all questions on it answered; and

    (b)  no incorrect answers are given.

13. Section 99 of the Act provides that:

    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.

    The applicant’s claims

14. The applicant arrived at Christmas Island [in] September 2011 as an unauthorised maritime arrival and on 2 December 2011, the applicant’s claims for protection were accepted.

15. On 11 January 2012, he lodged an application for a protection visa subclass 866.  When he lodged the application for a protection visa, he provided a completed Form 866C. At question 1, the applicant was asked What is your full name?  He answered [surname] as his surname and [given name] as his given name.  At questions 7 and 8 asking about his date and place of birth, the applicant responded [date]… Maidan Wardak, Afghanistan.

16. At question 41 of Form 866C, the applicant indicated that he was seeking protection in Australia so that he does not have to return to Afghanistan. At question 42 asking why he left that country, the applicant indicated Please refer to my statutory declaration. At question 43 asking what the applicant feared might happen to him in case of his return to that country, the applicant indicated Please refer to my statutory declaration.

17. At question 44 asking Who do you think may harm/mistreat you if you were to return? the applicant indicated Please refer to my statutory declaration. In response to question 45 which asks Why do you think this will happen to you if you go back? the applicant responded Please refer to my statutory declaration. Similarly, in response to question 46 which asks Do you think the authorities of that country can and will protect you if you go back? If not, why not? the applicant responded Please refer to my statutory declaration.

    Statutory Declaration dated 5 November 2011

18. In the Statutory Declaration setting out the reasons for seeking Australia’s protection, the applicant essentially claimed that:

    ·He was aged [age] years when his father died and his brother started working for a foreign organisation as [Occupation 1]. He does not know the name of his brother’s employer because his brother never told them. His brother did not want the family to know to avoid trouble for the family.

    ·His brother went missing about 6 ½ months ago and the family does not know what happened. They went to the police who did not assist them because the family could not tell them about the name of the employer. He believes that his brother was taken and killed by the Taliban.  Kochees hate Hazaras due to their Shia faith and ethnicity.

    ·The government established a post in their area with about 40 soldiers to protect the region. The head of the army requested the villagers to provide one male to join the army for fighting. His mother did not want him to fight. She had already lost his father and his older brother so it was decided that he should escape. At that time, he could not take his fiancée with him because that would have been culturally unacceptable.

    ·He fears returning to Afghanistan because he would be killed or have to kill which he does not want to do. His brother is missing and he is the only male remaining in his mother’s house. He would be pressured to fight. He fears that he would be harmed by the Taliban, the villagers and the Kochees. He would be harmed due to his Shia faith and his Hazara ethnicity. The authorities would not protect him.

    Events subsequent to the grant of the protection visa

19. Departmental movement records indicate that the applicant travelled outside Australia from  [June] 2015 until [October] 2015. The incoming passenger card provided to the Department [in] October 2015 indicated that the country where the applicant had spent the most time abroad was Afghanistan.

20. [In] October 2015, the applicant was interviewed by officers of the Department at Sydney International Airport. He informed the officers at interview that he had travelled to Afghanistan for holidays, to see family and to get married. With the applicant’s personal property, a copy of his marriage certificate was located indicating that he married [Ms A in] August 2015 in Kabul.

21. Departmental movement records also show that the applicant travelled from [June] 2016 until [August] 2016. The incoming passenger card provided to the Department [in] August 2016 noted that the country where the applicant had spent the most time abroad was Afghanistan.

22. [In] August 2016, the applicant was interviewed by officers of the Department at Sydney International Airport. The applicant informed the officers that he had travelled to Afghanistan to visit family.Airport officers located and scanned travel stamps in the applicant’s Australian Titre de Voyage which confirmed entry to an exit from Afghanistan via Kabul International Airport [in] August 2015 [and] October 2015, as well as [in] June 2016 [and] August 2016.

23. The Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC/Notice) dated 6 December 2017 to which the applicant responded in submissions dated 20 December 2017. The submissions noted the following matters:

    ·The applicant maintains that in response to questions 41 to 46, he provided true and correct answers to the best of his knowledge.

    ·The mere fact that the applicant returned to Afghanistan is not inconsistent with his claimed fear. Twelve years ago, his father died and his brother started working for a foreign organisation as [Occupation 1]. His brother used [travel] from Kandahar to other cities. He does not know the name of the employer because his brother never told him. His brother did not want the applicant to know in case he told other people and consequently his brother would get into trouble.

    ·The applicant’s brother went missing and they do not know what happened to him. They went to the police who did not assist because they were not able to tell them where he had worked. He thinks that his brother was taken and killed by the Taliban. Kochees attack Hazaras in the area every year and a few months ago they attacked the village. They hate Hazaras. The government has established a post in the area and there are about 40 soldiers protecting the area. The head of the army requested the village to provide one man to join the army to come and fight. His mother did not want him to fight. It was decided that the applicant would escape. His mother told him to leave to try to go to Australia. He could not take his fiancée with him because as they were not married, it would be contrary to cultural expectations.

    ·If the applicant were to return to Afghanistan, he would be forced to fight and either kill or be killed. He does not want to kill or be killed himself. His brother is missing and he is the only male in the family. He would therefore be pressured to fight. The villagers would punish him for escaping to Australia. Even getting to his village would be dangerous because the village is surrounded by the Taliban.

    ·The fact that his brother is missing, probably killed, would also mean that the applicant would be in danger because as far as the Taliban are concerned, it would be assumed that his brother had done something wrong by working for a foreign employer. It is known that some people in the village are informers for the Taliban and so his return would be discovered and his life would be in danger. He would be harmed by the Taliban, the villagers and the Kochees. He would be harmed for reasons of being Hazara, of the Shia faith, for going to an infidel country, and because of the belief that his brother had done something wrong. The authorities would not protect him.  Hazaras get killed and the police do not even investigate their deaths. The authorities also help the Kochees.

    ·The applicant felt compelled to return to Afghanistan between [June] 2015 and [October] 2015 because his fiancée’s family threatened and pressured him to return to marry her because their reputation in the community was impacted. They got engaged before the applicant left for Australia in 2011 and as they were still unmarried, there was gossip within the community. Keeping the family honour is a matter of life and death in Afghanistan. He could not request the wedding to be held in either Iran or Pakistan because her family refused to accompany her abroad. She began to experience severe anxiety and depression and she expressed that she could not continue living the rest of her life as a second-class citizen in Afghanistan because she believed that the applicant had abandoned her. When the applicant was in Afghanistan, he was at home with his family and he did not go out much because it was not safe. He did not return to his village at Maidan Wardak where he feared being targeted by the local villagers and the Kochees.

    ·The applicant’s father passed away 18 years ago and his only brother went missing in 2011. At the time of lodging the application for a protection visa, a number of his sisters were still residing in the village of Maidan Wardak but they are now in Kabul where the applicant stayed when he went to Afghanistan in 2016. The applicant had no choice but to return to Afghanistan from [June] 2016 until [August] 2016 to see his sister-in-law who was ill with cancer and the applicant genuinely believed that her death was imminent.

    ·The sister-in-law is still undergoing treatment. Culturally, the applicant is responsible for his sister-in-law because his brother and father are deceased. He stayed for a short period of time on this occasion because there was talk that people are beginning to ask about the applicant.  The applicant’s [son] was born on [date] and due to Direction No. 62 as a boat arrival, an application to sponsor his family would have been given the lowest processing priority and the applicant would not have been able to see his child for years.

    ·There is no evidence to support a finding that the applicant’s answers were incorrect. In AAT decision1706997, the Tribunal found that an applicant’s act of returning to the country of claimed fear of harm may raise questions about subjective fear of harm and credibility, but returning is not necessarily inconsistent with the claimed fear.

    ·The applicant had to return to Afghanistan. The applicant’s protection visa was granted on 18 January 2012 and he first returned [in] June 2015 due to reasons beyond his control. The applicant maintains that it is still not safe in Kabul and the applicant had no choice but to travel. The applicant is a law-abiding citizen and he owns his own business. He employs one Australian citizen and two permanent residents. He is planning to expand his business and purchase a home in the near future. He is of good health and character.

24. In support of the submissions, the applicant provided copies of a number of documents including his marriage certificate, Taskeras and identity documents for family members, medical reports for the sister-in-law, references, evidence of purchase of a property in Australia, mortgage details, business registration, statement of support from an accountant in Australia, tax assessments, business transactions, articles relating to Hazaras and their treatment in Afghanistan.

25. In submissions to the Tribunal dated 7 March 2019, the representative summarised the applicant’s claims and indicated that:

    ·The mere fact that the applicant had returned to Afghanistan on two occasions since the grant of the protection visa does not indicate that he has provided incorrect information. In relation to the first occasion, the applicant went to Afghanistan because he felt compelled due to pressure by his in-laws to return and marry. As the couple had not married for over three years, her reputation in the community had been tarnished. The applicant felt he had no choice but to return in those circumstances.

    ·When the applicant returned to Afghanistan on the first occasion, he spent his time with the family in Kabul and did not venture out far from his home apart from the day he got married. On the second occasion, the applicant returned to Afghanistan because his sister-in-law had been diagnosed with cancer and was seriously ill. The applicant has a son who was born on [date] and given Ministerial Direction Number 62, the applicant would not have been able to see his son for years had he not returned to Afghanistan after his son’s birth. The applicant did not go to his village in Maidan Wardak and he stayed in Kabul with his wife, child and sister-in-law.

    ·The applicant took a calculated risk by travelling to Afghanistan however he felt compelled to return in those circumstances which outweighed his fears of persecution.

    ·The applicant has established a successful car wash business which he wants to expand and employ more staff. The applicant sponsored his wife and child in an application for a combined partner (subclass/100) visa application which was lodged on 13 November 2017 (this was corrected by the applicant in the course of the hearing). The applicant has also purchased a home in Australia. The applicant is an upstanding individual who has no instances of non-compliance with the law or visa conditions.

    ·The applicant remains to fear persecution from the Taliban, villagers and the Kotchees. The situation in Afghanistan remains highly volatile for Hazaras and the applicant remains to have a genuine fear of harm if he were to be returned to Afghanistan.

26. In accordance with s.424AA, in the course of the hearing, the Tribunal discussed with the applicant the information about his returns to Afghanistan. The Tribunal advised the applicant that returning to Afghanistan raises doubts about his claimed fear of harm made in the application for a protection visa, as well as suggesting that the applicant had provided incorrect answers in the application for a protection visa specifically the responses to questions 41, 42, 43, 44, 45, and 46 of form 866C which means that the ground for cancellation exists.

27. When invited to comment on or respond to that information, the applicant stated that when he came to Australia, he had been engaged for about six months.  He explained to the Tribunal that from a cultural point of view, it is not appropriate to have a long engagement.  He felt that he needed to return for the purpose of marrying his fiancée.  He said he lived in a safe place and did not leave the house much.  He emphasised that he did not go on holidays to Afghanistan but the trip was about the family. 

28. In relation to his second trip, the applicant said that he went to Afghanistan to see his family but in particular because his sister-in-law had been suffering from cancer. He said he is the only male in the family currently and he has responsibilities including assisting his sister-in-law in preparing for treatment in India where she was for approximately seven months.

29. The applicant gave evidence that at Kabul Airport although he was asked if he wanted his Titre de Voyage not to be stamped, he did not accept this because he did not want to hide the fact that he had travelled to Afghanistan.

30. The Tribunal discussed with the applicant his protection claims. The applicant stated that his [older brother] was working as [Occupation 1] for a foreign company, the name of which the applicant did not know because his brother did not disclose much about his employer. He stated that approximately six months prior to the applicant coming to Australia, his brother went missing and until today, the family still does not know the brother’s whereabouts or whether he is alive or deceased. The applicant stated that he does not want to return to Afghanistan because it is still not safe and the security situation is volatile.

1. The Tribunal asked the applicant about his family in Afghanistan. He stated that his mother, five sisters, his wife and his child live in Afghanistan. The Tribunal asked him if any harm had come to the family and the applicant stated that no harm has come to the family.

   FINDINGS AND REASONS

2. When the applicant applied for a protection visa, he claimed that he feared the Taliban and others. He claimed that the authorities of Afghanistan 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 Hazara of the Shia faith, as well as the claim that his brother had been employed by a foreign entity which would give rise to an imputed political opinions. Those claims were accepted and the applicant was granted the protection visa.

3. The Tribunal conducted a hearing and is satisfied that the applicant is Hazara and that he is of the Shia faith. In relation to his claims about his brother, the applicant has been consistent about that claim and in the course of the hearing, he appeared to be coherent about the claims.

4. Apart from the applicant’s returns to Afghanistan, 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, however 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 protection visa which has been granted on certain grounds and the only undermining issue relates to the applicant’s returns to Afghanistan.

5. The concept of onus and standard of proof are not generally applicable in the context of administrative decision making[1]. 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[2] 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.[3]

   [1] 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.

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

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

6. The Tribunal considers the cancellation of a protection 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[4], 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”[5].

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

   [5] At [120].

7. In that decision, the Court referred to Briginshaw v Briginshaw[6], where his Honour Dixon held[7] ‘… 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…”

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

   [7] At [362].

8. The delegate’s decision to cancel the applicant’s protection visa is based on the fact that the applicant had returned to Afghanistan on two occasions, contrary to the protection claims he had made that he could not return. The delegate considered that returning to Afghanistan 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.

9. There is no dispute that the applicant subsequent to being granted the protection visa, had returned to Afghanistan on two occasions, [from] June 2015 [to] October 2015, and [from] June 2016 [until] August 2016. In the application for a protection visa, the applicant claimed that he could not return to Afghanistan for fear of being harmed on the grounds, amongst other things, of his race, his religious faith, and brother’s employment with the foreign organisation.

10. The Tribunal acknowledges that the returns to Afghanistan 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 Afghanistan on the first occasion primarily to marry his fiancée and on the second occasion, he went because his sister-in-law had suffered from cancer. The Tribunal considers both reasons to be significant and the Tribunal has given them weight. The Tribunal is nevertheless concerned about the applicant’s returns to Afghanistan. However, the Tribunal found the applicant’s evidence to be consistent and 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.

11. 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.

12. In consideration of the evidence as a whole and for the stated reasons, the Tribunal is not satisfied that the applicant’s returns to Afghanistan in 2015 and 2016 mean that the applicant has provided incorrect answers to questions 41, 42, 43, 44, 45, and 46 of form 866C.

13. 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. 

14. The Tribunal has decided that there was no non-compliance by the applicant in the way described in the notice given under s.107 of the Act.

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

    DECISION

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