1907872 (Refugee)

[2020] AATA 5521

1907872 (Refugee) [2020] AATA 5521 (24 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1907872

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Kate Millar

DATE:24 November 2020

PLACE OF DECISION:  Adelaide

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 24 November 2020 at 3:12pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – religion – Shia – race – Hazara – previous visa application under an alias – Australian citizen family – non-refoulement – Convention on the Rights of the Child – decision under review set aside

LEGISLATION
Migration Act 1958, ss 5(1), 46, 107, 109, 140, 189
Migration Regulations 1994, r 2.41; Schedule 2

CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
MIAC v Khadgi (2010) 190 FCR 248

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant] arrived in Australia [in] November 2011 as an unlawful maritime arrival.  In his subsequent application for a protection visa, he said his name was [applicant’s name] and that he had not previously applied for a visa to come to Australia.

2. The Department subsequently found [the applicant] was the same person as [Alias A], who has applied for a [Partner] visa on 21 April 2010.  As a result, his Subclass 866 (Protection) visa was cancelled on the basis that he had failed to complete his application form in such a way that no incorrect answers were given. 

3. [The applicant] acknowledges he is the same person as [Alias A], and that a ground to cancel his visa exists.  However, [the applicant] submits his visa should not be cancelled as he is a citizen of Afghanistan of Hazara ethnic origin and Shi’a religion who would be at risk if returned to Afghanistan because of his ethnicity and religion, and as he now has [Australian] citizen children and [Australian] citizen stepchildren. 

4. For the reasons that follow, the Tribunal agrees that his visa should not be cancelled, and the decision under review set aside. 

   THE HEARING

5. [The applicant] appeared before the Tribunal on 29 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the [Official A] of the [Community Organisation 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.  [The applicant] was represented in relation to the review by his registered migration agent.

6. At hearing, the applicant was asked which name he wanted to use, and stated he is [Alias A].  For the purposes of this decision, the applicant will be referred to as [Alias A]. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.101of the Act. Section 101(b) states a non-citizen must fill in his or her application form in such a way that no incorrect answers are given.

9. 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.

10. In this case, the delegate had the necessary state of mind to engage s.107 as the delegate had information that [the applicant] was [Alias A] and had previously applied for a visa to come to Australia.  The Tribunal is also satisfied that the s.107 notice issued to [the applicant] provided particulars of the non-compliance and otherwise complied with the statutory requirements. 

11. The delegate cancelled the visa on the basis that [Alias A] had answered incorrectly when he stated his name, when he ticked the box “no” to whether he had previously made any other type of application to the Department, and also answered incorrectly by stating his date of birth was [DOB 1] when it was [DOB 2, in the same year].

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

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

13. 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 by the delegate is:

    ·     At Question 3 of Part B of Form 866 where it asked: “Has any person named in Question 1 previously made any other type of application to the Department (including a Parent visa)?” You ticked the box denoting “No”. I consider this answer appears to be incorrect as you have confirmed to the Department that you are also known as [Alias A] ([DOB 2]). Departmental records indicate [Alias A] ([DOB 2]) previously lodged a [Partner] visa application with [a named] post on 21 April 2010 and the application was refused on 14 March 2011. As such you should have answered “Yes” to this question.

    ·     At Question 4 of Part C of Form 866 where it asked: “What other names have you been known by?” You answered “[another alias] (name in false passport)”. I consider this answer appears to be incorrect because you did not answer that you are also known as [Alias A] ([DOB 2]).

    ·     At Question 7 of Part C of Form 866 where it asked: “Date of Birth”, you answered, “[DOB 1]”. I consider this answer appears to be incorrect as you have confirmed to the Department that you are also known as [Alias A] ([DOB 2]).

14. [Alias A] agrees his name is [Alias A], and was born in [the specified year], and that he previously lodged a spouse visa application.

15. For these reasons, the Tribunal finds that there was non-compliance with s.101 by [the applicant] in the way described in the s.107 notice.

    Should the visa be cancelled?

16. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

17. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.

18. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    PRESCRIBED CIRCUMSTANCES

19. The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations) and each has been considered in turn.

    The correct information

20. The correct information in the case is that [Alias A’s] correct name is [Alias A], who applied for a [Partner] visa on 21 May 2010.  This visa application was refused on 14 March 2011. The date of birth of [Alias A] is [DOB 2].  The date of birth provided for [the applicant] was [DOB 1].

    The content of the genuine document (if any)

21. [Alias A] provided an untranslated taskira, the Afghan identity document, with his application for a Subclass 866 visa.  These are false documents.  It is therefore difficult to place weight on identity documents he now provides in the name [variant of Alias A].

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

22. [Alias A] submits that his claims for protection are the basis for the grant of his visa and that had he given his correct identity, he would have been granted the visa.

23. He states that his father was killed by the Taliban [in] August 2011 and that after the death of his father he went with his family to Pakistan.  A few weeks after they arrived in Pakistan, he travelled to Indonesia and from there arrived in Australia as an unauthorised maritime arrival. 

24. [Alias A] claims to be of Hazara ethnicity and Shi’a religion.  He provided a letter dated [in] September 2020 from [Mr A], the [Official A] of the [Community Organisation 1] supporting his claim to be Hazara and to be from Malistan, Ghazni, Afghanistan.  He also appeared by teleconference to give oral evidence.  [Mr A] said he is Hazara from Ghazni in Jaghhori.  [Mr A] said he recognises [Alias A] as Hazara from Afghanistan and knows friends and relatives of [Alias A] from his area in Malistan.

25. [Alias A] has provided a consistent account of the death of his father and his fears as a Hazara Shi’a should he return to Afghanistan.  This account was not controverted by the delegate in the decision to cancel his visa. The Tribunal accepts [Alias A’s] submission that had he provided correct information about , he would have been granted the visa. 

    The circumstances in which the non-compliance occurred

26. [Alias A] said that the time he applied for the protection visa, he was afraid for his life and that if his application was refused, he could be deported to Afghanistan and killed by the Taliban.

27. He states his father worked at the [named] High School and was killed by the Taliban when he was bringing the teachers’ salaries from Ghazni.  He says he was afraid after this that the Taliban would kill them at any moment, and this was why he provided incorrect information.

    The present circumstances of the visa holder

28. [Alias A] said he met his current partner, who is an Australian citizen, in 2014, and provided her certificate of Australian citizenship.  He provided letters from two general practitioners, including one who states she has been [Alias A’s] general practitioner for the last 10 years.  Both letters state he is a supportive husband and father.

29. They now have [number] children, and he also has [number] stepchildren from his partner’s [previous] marriages.  His biological children are currently [specified ages], and his stepchildren are [specified ages].  He provided birth certificates for the [number] children and is named on the birth certificates as the father of his [biological] children, albeit in the name [applicant’s name].  The school enrolment forms are dated 28 August 2017 names him as her stepfather, and lists him as an emergency contact.  A letter from the school names the child’s mother and her stepfather [name] as her primary carers.

30. He states his wife is heavily dependent on him emotionally and financially, and that if his visa remains cancelled it will be hard for her to look after the children.  He said she suffers from depression as she had [number] bad marriages.  If his visa is cancelled and he has to return to Afghanistan, he does not want his partner or the children to return to Afghanistan with him as he does not agree they would be safe there but would leave this decision to them.  One of his daughters suffers a speech impediment and has been referred to a clinic but any treatment has been postponed due to COVID-19.  Since his visa was cancelled his lost his job [in occupation 1], and he provided a notice voiding his driver’s licence and [a professional] accreditation as it was in the [applicant’s name] and the Afghan driver’s licence on which it was granted is counterfeit. 

31. [Alias A] said his mother lives with his brothers [named] in Kabul.  His sister [named] also lives with his mother.  His sisters [named] live in Quetta, Pakistan.  He contacts his family every week or every second week and sends them money.  The circumstances for his family in Afghanistan are poor as they are unsafe and mostly don’t leave the house.  He said two to three years ago, someone threw a hand grenade into the place they lived but it did not explode.  His brother [named] had been attacked in Kabul and stabbed by people who were after his money and mobile phone.  He said it is hard to work as a Hazara Shi’a in Afghanistan as they are readily identified by their facial features and cannot move freely.  Since the peace agreement with the United States, 5,000 Taliban fighters have been released.  The Taliban does not recognise Hazara people and do not think they should be recognised as Afghan. 

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

32. The obligations in Subdivision C of Division 3 of Part 2 contain the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.

33. While [Alias A] did not himself disclose that he had used an incorrect name and date of birth, and failed to disclose a previous visa application, this was not a change in circumstances.  No information has been put forward that [Alias A] has otherwise not complied with his obligations.

    Any other instances of non-compliance by the visa holder known to the Minister

34. [Alias A] maintained his identity as [applicant’s name] in this application for Australian citizenship.

35. No information has been put forward to show there are any other instances of non‑compliance.

    The time that has elapsed since the non-compliance

36. [Alias A] applied for the protection visa in 2012, and it is now over eight years since the non‑compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

37. [Alias A] maintained his identity as [applicant’s name] across his identification documents in Australia, including a driver’s licence. There is no record of [Alias A] having breached any law in Australia. 

    Any contribution made by the holder to the community

38. [Alias A] states he assists with the [Community Organisation 1] at community events.  The [Official A] of that association stated he participates in events and cultural activities and has assisted with the settlement of newly arrived refugees. 

    OTHER CIRCUMSTANCES

39. Other circumstances considered by the delegate are contained in Department policy.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

40. [Alias A] arrived in Australia as an irregular maritime arrival.  Under s.46A of the Act if his visa is cancelled, he cannot make a visa application except with the authorisation of the Minister.  This includes a further bridging visa as well as a partner visa on the basis of his relationship with his partner, and as a result the effect of the cancellation will be that [Alias A] is liable to be detained under s.189 of the Act. 

41. Under s.198(5) of the Act, he would be removed from Australia as soon as practicable.  Under s.197C of the Act, Australia’s non-refoulement obligations are irrelevant to removal of a person under s.198, and the duty to remove arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations.  This means the potential harm to [Alias A] if he is removed would not be considered before removing him from Australia.

    Whether there would be consequential cancellations under s.140

42. Under s.140 of the Act, if a person’s visa is cancelled under s.109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child

43. The facts of this case give rise to Australia’s international obligations in regard to non‑refoulment and the best interests of the child.

    (i)    Non refoulment

44. The principle of non-refoulement is contained in Article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention) and provides that no state shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

45. Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty, Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).

46. Article 3 of the Convention Against Torture states no state party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing he would be in danger of being subjected to torture.  Torture is defined as (among other things) severe pain or suffering, whether physical or mental, intentionally inflicted on a person for the purpose of punishing him for an act he has committed or is suspected of having committed.

47. [Alias A] claims he will be unsafe if returned to Afghanistan by reason of his Hazara ethnicity and Shi’a religion.  It is also reasonably apparent from the information before the Tribunal that [Alias A] could claim he is at risk by being a returnee from the West.

48. The Department of Foreign Affairs and Trade (DFAT) Country Information Report Afghanistan June 2019 reports that the Shi’a community is the target of attacks from Islamic State in Khorasan Province (ISKP)[1] and that mosques, schools and other civilian targets are vulnerable to attacks from anti-Government elements.[2]

    [1] At [2.36]

    [2] At [2.58]

49. DFAT reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shi’a targets, and the number of attacks increased through 2017 and 2018.[3]  DFAT assess Shi’a to face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation, and the risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods or when attending mosques during religious festivals.[4]

    [3] [3.32] to [3.34]

    [4] At [3.35]

50. According to the European Asylum Support Office Country (EASO) Guidance for Afghanistan (June 2019), the Shi’a community are disproportionately represented in civilian casualties, particularly in Kabul and Herat.[5]  EASO reports that Afghans identifying with Western values may be targeted by insurgent groups.[6]  

    [5] (p.71)

    [6] Ibid p.67

51. The Finnish Immigration Service found in October 2019 that Hazaras are at greater risk from ISIS and the Taliban because of their ethnicity and religion.[7]

    [7] Finnish Immigration Service (15 October 2019) Afghanistan: Fact Finding Mission to Kabul in April 2019 – Situation of Returnees in Kabul

1. State protection is limited by capacity such as logistics, air power and intelligence.[8]  DFAT reports continuing armed conflict has significantly challenged the government’s ability to exercise effective control over large parts of the country.[9]  Large scale attacks in Kabul demonstrate the limits of the government’s ability to protect its citizens.[10]

   [8] DFAT Country Information Report Afghanistan June 2019, at [5.1]

   [9] [5.2]

   [10] Ibid

2. The United Nations Assistance Mission in Afghanistan Protection of Civilian in Armed Conflict Third Quarter Report: 1 January to 30 September 2020[11] documents attacks by ISKP (referred to in the report as ISIL-KP) on the Shi’a Muslim population, most of whom are Hazara.  This included a report of an improvised explosive device attached to a public transport vehicle which killed three civilians and injured five.  This attack was claimed by ISIL‑KP who indicated they were targeting Shi’a Muslims.  On 11 September 2020 armed men on a motorcycle opened fire on civilians coming out of a mosque used by the Shi’a Muslim community.

   [11] >

   The Tribunal considers that there is a real risk that [Alias A’s] life and freedom would be threatened due to his Hazara race, Shi’a religion if he were returned to Afghanistan.  The Tribunal is not satisfied there are current protection measures available to [Alias A] in Afghanistan.

3. It follows that returning him to Afghanistan would be a breach of Australia’s non‑refoulment obligations.

   (ii)  Best interests of the child

4. Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions concerning children, the best interests of the child shall be the primary consideration.

5. This has been the subject of differing interpretations.  Most recently in CFE16 v Minister and CFD16 v Minister,[12] (CFE16 & CFD16), Judge Riethmuller referred to Article 3 of the Convention and stated:

   … it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[13]

   [12] [2020] FCCA 1083

   [13] At [19]

6. Judge Riethmuller states that whether the Convention must be considered in circumstances where a ministerial instruction does not apply did not need to be addressed in the judgement.  This was because the delegate proceeded on the basis that the Convention applied, and the Tribunal did not identify to the applicant that it intended to approach the case differently.

7. Judge Riethmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s bests interests.[14]  Judge Riethmuller states that:

   … by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children.  The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”.  The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[15]

   [14] At [24]

   [15] At [25]

8. Judge Riethmuller notes in this case that as one of the children is an Australian citizen, she is entitled to all of the protections and the benefits of the Australian state.  The cancellation of the parent’s visa, given her young age, may on a practical level mean she is unable to take advantage of her status as an Australian citizen.  Judge Riethmuller notes this is a factor that may need to be considered by the Tribunal.[16]

   [16] At [28]

9. [Alias A] has a wife who is an Australian citizen and [Australian] citizen children.  He provides financial support for his family which include [minor] stepchildren. His wife states the fathers of these children have not seen them for many years.  She states [Alias A] assists her with home duties, taking the children to school, medical appointments and shopping as her English is not good.

10. The best interests of his children are to remain as part of a family unit with their parents.  In the absence of the presence of their biological father, the best interests of [Alias A’s] stepchildren are to live in a household with two parents.  It is in the best interests of all of the children that they have the financial, emotional and practical support [Alias A] provides.  It would not be in the best interests of the children to live in Afghanistan as their safety and ability to subsist would be compromised. 

11. It is in the best interests of [Alias A’s] children and stepchildren that he remain in Australia.  The effect of a decision to cancel [Alias A’s] visa will be to separate him from his children, and to deprive his children and stepchildren of his financial, emotional and practical support.

12. Even if he were to apply for a partner visa from offshore, public interest criterion 4013 would prevent him being granted the visa for a period of three years unless he can establish compelling and compassionate circumstances.  He would need to be able to gather the financial resources required to apply for this visa, which is currently AUD7,715.  His children are very young, and this would be a lengthy period of separation.

13. The task of the Tribunal is then to determine if other considerations outweigh this consideration.

    CONCLUSION

14. [Alias A] provided a false name and date of birth in his protection visa application, and also incorrectly stated he had not previously applied for a visa to come to Australia.  This occurred in a context in which he says he fled Afghanistan as he feared for his life.  He has maintained the false identity while living in Australia, including in his application for Australian citizenship.  There is a ground on which to cancel his visa.

15. In looking to whether this visa should be cancelled, the Tribunal has found that his race, religion and the circumstances in which he fled Afghanistan are as he claimed.  The best interests of his children and stepchildren weigh heavily in favour of not cancelling his visa, as do Australia’s international non-refoulment obligations.

16. Having had regard to all prescribed and other factors, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Kate Millar
    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.