1908918 (Refugee)

[2022] AATA 4090

1908918 (Refugee) [2022] AATA 4090 (3 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Hassan Izadnia (MARN: 1571846)

CASE NUMBER:  1908918

COUNTRY OF REFERENCE:                   Iran

MEMBER:Alison Murphy

DATE:3 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 03 October 2022 at 3:10pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – race – Faili Kurds – nationality – stateless – Iranian citizenship – fraudulently obtained Iranian National Identity Card – education – Iranian identity documents obtained from fraudulent identity card – power to cancel the applicant’s visa does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 97 – 105, 107-109, 140
Migration Regulations 1994, Schedule 2

CASES

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 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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s 101(b) because he provided incorrect information about his citizenship in the visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 28 September 2022 to give evidence and present arguments. The review was heard jointly with the related reviews of his wife, [Wife A] (AAT proceedings 1908971); his daughter [Daughter A] (AAT proceedings 1908923) and his son [Son A] (AAT proceedings 1908976). The related reviews are in respect of a separate decision of a delegate to cancel the partner visas of the applicant’s wife and children pursuant to s 140(2). The visas were cancelled on the basis that they were only granted the visas because the applicant in the current review had been granted a protection visa which was subsequently cancelled. The Tribunal’s decisions in the related views are set out in separate decision records in AAT proceedings 1908971; 1908923 and 1908976.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

5. The applicant in this case and each of the related cases was represented in relation to the reviews by the same migration agent.

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

   ISSUES FOR determination

7. The issues in this case are:

   ·    whether the ground for cancellation is made out in respect of the applicant; and if so,

   ·    whether the visa should be cancelled.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and a decision substituted that the power to cancel the visa under s 109 was not enlivened.

   DOCUMENTS BEFORE THE TRIBUNAL AND NON-DISCLOSURE CERTIFICATE

9. The Tribunal has been provided with the Department’s files in relation to the grant and cancellation of the applicant’s protection visa ([file number]). That file contains copies of some documents from the applicant’s protection visa application file as well as documents provided in response to the Notice of Intention to Consider Cancellation of the applicant’s visa.

10. The Tribunal has also been provided with the Department’s files in relation to the cancellation of the partner visas held by the applicant’s wife and children, [Wife A] [Daughter A] and [Son A] ([file number]). The delegate has placed restrictions on some of the material contained in that file by issuing a certificate under s 438 of the Act dated 8 March 2022.

11. The certificate states that disclosure of these documents would be contrary to the public interest because disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The certificate records that the documents also contain information pertaining to parties or persons who are not directly associated with this particular application.

12. Where a certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

13. In this case the certificated information contains details of a Departmental investigation including substantial amounts of personal information about a number of persons not the subject of the current reviews who have been investigated by the Department on suspicion of providing incorrect information about their nationality and citizenship. I have had regard to the public interest in protecting the Department’s investigative methods and the confidentiality owed to third parties and weighed that up against the requirements of procedural fairness owed to the applicants in the current review.

14. At hearing I provided the applicant’s representative with a copy of the s 438 certificate and he indicated he had no submissions to make as to its validity. The document is signed and the certificated information clearly correlates with the stated public interest reason on the certificate.

15. Ultimately the Tribunal considers that the information in the certificated documents is of little relevance to the current review. To the limited extent it is personal to the applicant or his family members in the current proceedings, the certificated information does nothing more than recount the information they have themselves provided about their nationality and citizenship. Specifically it records [Wife A], [Daughter A] and [Son A] as Iranian citizens, which is how they have presented themselves to the Department. It records [the applicant] as stateless, which is how he has presented himself to the Department.

16. While it is clear that the Department considers [the applicant] to be an Iranian citizen and not stateless as he claims, nothing in the certificated information provides any new grounds for that assessment as the certificated information indicates that he is linked to the broader investigation only through his marriage to [Wife A] whose Iranian citizenship is not in dispute. As country information indicates that foreigners marrying Iranian women in Iran will not be recognised as Iranian citizens, [the applicant] cannot have obtained Iranian citizenship from his wife and the certificated information does not suggest that he did. Rather the reasons for the Department’s assessment that he is an Iranian citizen and not stateless as claimed are set out in detail in the Notice of Intention to Consider Cancellation dated 20 September 2018 and the delegate’s decision dated 9 April 2014.

17. Except in so far as it was discussed in broad terms at hearing in the terms set out above, the certificated information has not been provided or otherwise disclosed to the applicants by the Tribunal.

    Legislative Framework

18. 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.

19. 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.

20. In the present matter, no issue is raised about the validity of the notice or the sufficiency of the details provided in that notice. The notice sets out in detail the information provided by the applicant that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false.

21. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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(b), which requires that a non-citizen must fill in or complete his or her visa application form in such a way that no incorrect answers are given or provided.

23. The s 107 notice is dated 20 September 2018 and alleges that the applicant gave incorrect information in the following respects:

    ·At question 19, when he stated that he was stateless;

    ·At questions 42 - 48, which he answered by reference to a written statement attached to the application in which he relevantly stated that (in summary) that he was expelled from Iraq to Iran along with his mother, brother and sister in 1989; that he tried to obtain Iranian citizenship but could not do so because there was no record of his father in Iran; that he was issued a Green Card by the Iranian authorities and suffered harm and mistreatment in Iran as a stateless Faili Kurd; that he fled Iran because of his treatment as a stateless Faili Kurd and that he feared returning to Iran because he is stateless and without identity and left Iran using a false Iranian passport.

24. The s 107 notice alleges that this information provided by his wife [Wife A] in her partner visa application indicated that the applicant is an Iranian citizen and not stateless as claimed. In particular the notice set out that a number of Iranian documents had been provided in support of the partner visa application indicated that the applicant is an Iranian national because those documents record that he has an Iranian National Idendity Card number. The documents stated to include this information are the applicant’s marriage certificate as well as the shenasmanehs and Iranian passports relating to his wife and children.

25. The applicant responded to that notice by maintaining the information in his protection visa application was correct, namely that he was a stateless Faili Kurd formerly resident in Iran who was issued with a Green Card and later a White Card by the Iranian authorities. He states he married in 1992 but was not permitted to register that marriage because of his status as a stateless Faili Kurd. When his children were born in [respective years], they did not have access to basic rights such as education, healthcare, employment and freedom of movement and were at risk of arrest and being deported from Iran. He claims to have been issued amayesh cards by the Iranian authorities evidencing that he is not an Iranian citizen as asserted by the Department. He asserts that his family’s Iranian identity documents suggest he is an Iranian citizen only because he paid a lawyer to fraudulently obtain an Iranian National Identity Card number for him so that his marriage could be registered and his children would be treated as Iranian citizens.

26. The delegate considered the applicant’s response to the s 107 notice but decided to cancel the visa on 9 April 2019.

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

27. As set out above, the 107 notice alleges that the applicant gave incorrect information in response to questions 19, 42, 43, 44, 45, 46, 47 and 49 of his protection visa application when he stated that he was rendered stateless after being expelled from Iraq to Iran in 1989; that he tried to obtain Iranian citizenship but could not do so because there was no record of his father in Iran; that he was issued a Green Card by the Iranian authorities and suffered harm and mistreatment in Iran as a stateless Faili Kurd; that he fled Iran because of his treatment as a stateless Faili Kurd and that he feared returning to Iran because he is stateless and without identity and left Iran using a false Iranian passport.

    The applicant’s citizenship status

28. It is not in dispute that the applicant is of Faili Kurd ethnicity or that he was resident in Iran prior to travelling to Australia in 2010. Rather at issue is the applicant’s status in Iran, specifically whether he holds citizenship of that country.

29. DFAT reports that three groups of Faili Kurds reside in Iran:

    ·those who are Iranian citizens;

    ·those of Iraqi origin who are registered refugees; and

    ·those of Iraqi origin who are not registered refugees.[1]

    [1] DFAT ‘DFAT Country Information Report Iran’ 14 April 2020 at 3.23

30. Those Faili Kurds holding Iranian citizenship have the same rights as other Iranian citizens. Registered Faili Kurd refugees were issued amayesh cards, entitling them to government services not available to those who were not registered.[2]

    [2] DFAT Country Information Report: Iran 14 April 2020 at 3.23 – 3.26

31. In this case the applicant claims to be a member of the group of Iraqi Faili Kurds living as registered refugees in Iran, while the Department believes he is Iranian citizen. As set out in the s 107 notice, the Department’s reason for believing this is that documents provided by his wife [Wife A] in her partner visa application show an Iranian National Identity Card (NIC) number. As only Iranian citizens are entitled to hold NIC in Iran, the Department considers the applicant is an Iranian national and not stateless as claimed. If that is correct, it follows that the applicant gave incorrect information in his protection visa application when he claimed to be stateless in Iran and the ground for cancellation will be made out.

32. The Australian courts have confirmed that a mere suspicion is not sufficient to establish the ground for cancellation. Rather, before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut.[3]

    [3] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at 32

33. The applicant explains this by stating that in 2004 he was introduced to a lawyer whom he paid to obtain a NIC number which was then used to officially register his marriage showing him to be an Iranian citizen. This in turn enabled shenasmanehs to be issued for the children. The shenasmanehs were not issued until the children were 12 and 6 years old and were provided to the Department when the applicant’s wife applied for the partner visa in 2013. The applicant was never provided with a NIC by the lawyer because he was told that being issued with the document was too risky, rather the purpose was to allow him to be shown as an Iranian national on his marriage certificate which would allow his children to obtain genuine Iranian identity documents that would not otherwise be able to access.

34. The applicant claims that although obtaining the NIC number allowed him to obtain education and other rights for his children, he was always at risk of being identified and targeted as a stateless Faili Kurd, leading to his departure from Iran in 2010.

35. At hearing the applicant and his wife [Wife A] maintained the position put forward in the response to the s 107 notice, namely that the applicant is not an Iranian citizen but obtained an Iranian NIC number in 2005 by bribing a lawyer. The applicant gave evidence that he was introduced to that lawyer by an Afghan friend in the same position and that the lawyer worked for [a government agency] in Iran. The lawyer told him that he would allocate him a NIC number, but that providing an identity document related to that number was too risky. Consistently with his earlier statements to the Department, he maintained he was never provided with an Iranian NIC or any other Iranian identity document.

36. I have had regard to the advice contained in the current DFAT report to the effect that the former Baathist government in Iraq, after seizing power in the 1960s, adopted several policies aimed at excluding and ultimately expelling Faili Kurds from Iraq because the Iraqi authorities considered them to be Iranian. The most significant was Decree 666 in 1980, which cancelled the Iraqi citizenship of all Iraqis deemed to be of ‘foreign origin’ including Faili Kurds. Up to 250,000 Faili Kurds are estimated to have crossed the border into Iran between the late 1970s and the late 1980s, where they were mostly recognised by Iranian authorities as refugees.

37. In this case the applicant has produced a number of documents to the Department and the Tribunal in support of his claims to be a Faili Kurd expelled from Iraq. Firstly, his Iraqi identity card which he produced to the department in response to the s 107 notice indicates that he was born in [year] and the card was issued to him in 1977 when he was aged [age]. At hearing the Tribunal sighted the original of this document.

38. The applicant has also produced an Assurance of Support from [Mr A], an Iranian citizen, dated 25 July 1989. That document is an undertaking to provide accommodation, food and living needs for the applicant and his siblings, described as being in exile from Iraq, to allow them to be released from [a named] refugee camp and relocate to Tehran. On the basis of these documents and the applicant’s consistent evidence over more than a decade, I am satisfied the applicant is a Faili Kurd of Iraqi origin whose family was expelled from Iraq in 1989.

39. DFAT advises that Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship but while many have applied, only a small number have succeeded due to the lengthy and complicated process and high costs involved. Others have not applied because they do not have the required family members in Iran to prove their Iranian ancestry[4]. The current advice is consistent with older reports which indicate that while Faili Kurds who could present documentary proof of Iranian ancestry or family links to Iran were able to obtain citizenship, this process was reported to be complicated and to take years, with the documents required to process an application for Iranian citizenship effectively meaning that few, if any, applicants are successful[5].

    [4] DFAT Country Information Report: Iran 14 April 2020 at 3.23 – 3.26

    [5] DIAC Focus Brief Iran: The Situation of Faili Kurd Refugees in Iran 16 December 2009 at p3; DIAC Country Information Service 2010, Country Information Report No. 10/13 – Iran: Faili Kurds, (sourced from DFAT advice of 1 March 2011), 18 March

40. The applicant claims he tried to obtain Iranian citizenship after arriving there in 1989 but was unsuccessful because he did not have the requisite Iranian paternal ancestry. He has produced copies of documents he claims are amayesh cards issued to him by the Iranian authorities as well as a laissez passer issued by Iran’s Ministry of the Interior in respect of the applicant’s daughter [Daughter A] on [date]. That document contains her photograph and allows her travel within Iran for education purposes. At hearing the applicant gave evidence that he was required to obtain such a document for [Daughter A] every three months to allow her to attend school, which is consistent with the terms of the document. Even with that document, non-citizen Faili Kurd and Afghan refugee children had to wait until after all the Iranian children were enrolled each year before they could be considered for enrolment. Amayesh are issued to Iraqi refugees resident in Iran and their issue is inconsistent with the applicant being an Iranian national. Similarly if [Daughter A] had been an Iranian national in [that year], she would not have required a laissez passer to attend school.

1. The amayesh and laissez passer documents are copies of documents issued many years ago and their authenticity cannot be verified. In contrast there is no dispute that the Iranian marriage certificate, shenasmanehs and passports held by the applicant’s wife and children are genuinely issued documents and the passports in particular include sophisticated security features. However the applicant’s marriage certificate, being the feeder document for the children’s shenasmanehs and passports, is a paper based document without security features. DFAT acknowledges the existence of corruption in relation to official documentation, although it does not assess it to be prevalent.[6] More broadly though DFAT reports that corruption in Iran remains endemic, with irregular payments, bribes and the trading of favours often required to obtain services, permits or contracts.[7]

   [6] DFAT Country Information Report: Iran 14 April 2020 at 5.41 – 5.43

   [7] Ibid at 5.41 – 5.43

2. The Tribunal considers it relevant that the dates on the official Iranian identity documents submitted by the applicant’s wife and children tend to confirm the applicant’s evidence as to how and when they were obtained. Consistently with the evidence of the applicant and his wife, the Iranian marriage certificate states that the marriage took place in 1992 and describes both parties as Iranian citizens, but the marriage was not registered with the Iranian authorities until December 2005. An earlier document evidencing their religious marriage in 1992 describes the applicant as the holder of a foreign national identity card and not an Iranian national. Similarly the birth certificates of [Daughter A] and [Son A] record their correct dates of birth in [respective years], but were not issued until December 2005. Further the Tribunal notes that the applicant has not departed Australia since his first arrival in April 2010, in contrast to his wife who has departed and returned on several occasions.

3. The documentation produced by the applicant, together with the consistent statements of the applicant and his wife over many years and DFAT’s advice that very few Faili Kurds of Iraqi origin have managed to obtain citizenship in Iran, cause the Tribunal not to be satisfied that the applicant is an Iranian citizen as alleged by the Department. For these reasons the Tribunal is not satisfied the applicant gave incorrect information in his protection visa application when he stated that he was stateless Faili Kurd expelled from Iraq to Iran who lived as a registered refugee in Iran before travelling to Australia. It follows that the Tribunal is not satisfied the applicant gave incorrect information in the manner set out in the s 107 notice.

4. As discussed with the applicants at hearing, the Tribunal’s conclusions above cause it to consider the applicant children are not Iranian citizens as the family believe. It was apparent that this was an unforeseen consequence for the family, who considered that because the children had been issued with genuine Iranian shenasmanehs and passports they were citizens of Iran. However the family’s evidence, accepted by the Tribunal, is that the children were considered stateless at birth and were not recognised as Iranian citizens because Iran’s citizenship laws at the time only permitted children to obtain Iranian citizenship through their father. As the applicant was not himself an Iranian citizen, he could not pass on Iranian citizenship to his children.

5. While the applicant and his wife considered that the children’s status was resolved by the purchase of the NIC number for the applicant which allowed the children to be issued with Iranian shenasmanehs and passports, the Tribunal considers the family’s evidence indicates that those documents, while genuinely issued, were obtained by way of a bribe and do not alter the children’s legal status as stateless Faili Kurds living as refugees in Iran. The Tribunal accepts that the family were not aware of this issue concerning the citizenship of [Daughter A] and [Son A] until it was raised by the Tribunal at hearing.

6. DFAT advises that in May 2019, the Iranian parliament passed an amendment to the Nationality Law to allow Iranian women married to foreign men to pass their Iranian citizenship to their children, which they previously did not have the right to do. Under the amended law, Iranian women married to foreign men can apply for Iranian citizenship for their children but that citizenship will not be granted to the child automatically, unlike in the case of a child born to an Iranian father.[8] At hearing the applicant and his family confirmed that such an application had not been made for [Daughter A] and [Son A] and the applicant’s representative advised the Tribunal that while the law had changed, it was in practical terms very difficult to have citizenship recognised in those circumstances.

   [8] DFAT Country Information Report: Iran 14 April 2020 at 3.125

7. As [Daughter A] and [Son A] were born to an Iranian citizen mother and a stateless father at a time when Iran’s citizenship laws did not allow Iranian women married to foreign men to pass their Iranian citizenship to their children, the Tribunal concludes they were not Iranian citizens at the time of their birth. However their citizenship status was not relevant to the grant of their dependent partner visas, nor is it relevant to the cancellation of those visas.

8. Rather the decisions to cancel the partner visas of the applicant’s wife and children were made pursuant to s 140(2) on the basis that they were only granted the visas because their husband and father had been granted a protection visa which was subsequently cancelled. The Tribunal’s decisions relating to the cancellation of the partner visas held by the applicant’s wife and children are set out in separate decision records in the related reviews for [Wife A] (AAT proceedings 1908971); [Daughter A] (AAT proceedings 1908923) and [Son A] (AAT proceedings 1908976).

   Conclusion on non-compliance

9. For the above 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. 

   DECISION

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

    Alison Murphy
    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.