1912750 (Refugee)

[2021] AATA 4634

1912750 (Refugee) [2021] AATA 4634 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1912750

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Alison Murphy

DATE:12 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2021 at 11:26am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information provided in visa application – education, employment, experiences and fears on return – threats from person wanting applicant and family to join political party or militia – voluntary returns and family’s location at the time – references on social media inconsistent with evidence in application – returned to Iraq before father’s death and to support mother – other incorrect information on profile – broadly consistent and credible information provided in multiple interviews – copy of father’s death certificate provided – decision under review set aside

LEGISLATION  
Migration Act 1958 (Cth), ss 46A, 101, 107, 109(1)

CASE
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 (the Act).

2. The delegate cancelled the visa on the basis that they considered the applicant gave incorrect information in his protection 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 8 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

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

   BACKGROUND

6. The applicant is a [Age 1]-year-old male born in [a] village near Basra, Iraq on [Date]. He is of Shia Muslim religion. He arrived in Australia by boat [in] October 2010 and lodged an application for a refugee status assessment in February 2011.

7. On 15 April 2011 a Refugee Status Assessment (RSA) officer assessed that the applicant did not engage Australia’s protection obligations. The RSA officer’s decision was reviewed by an Independent Merits Review officer who found that the applicant met the criteria for a protection visa and recommended that he be recognised as a person engaging Australia’s protection obligations on 30 March 2012.

8. On 29 June 2012 the Minister exercised his discretion under s.46A to allow the applicant to lodge an application for a protection visa and the applicant was subsequently granted a Class XA Subclass 866 Protection visa on 3 July 2012. On 20 March 2017 he applied for Australian citizenship by conferral and the delegate’s decision indicates that application is still being processed.

9. On 9 April 2018 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (the s.107 notice), advising him that the Department of Immigration and Border Protection was considering cancelling his protection visa on the ground that it considered he had provided incorrect information in his protection visa application about his education, his employment history, his experiences in Iraq and fears on return.

10. In particular the s.107 notice set out that the applicant had declared (in brief summary) that he had [number] years schooling before finishing and working as [an Occupation 1] for two years, ceasing this work when he injured his back. At about [Age 2] he started working for [Employer 1] to support his family in a [specified] role, at [a workplace] at Hilla where he worked first as a trainee and then as [an Occupation 2].

11. He claimed that he started to receive phone calls from a person wanting the applicant and his family to join a new independent party or anti-government militia, which was common at the time. When the applicant and his family refused, the caller told him that their choice was to work for them or be killed. The applicant quit his job and he and his family moved to Kerbala, where the applicant continued to receive threatening phone calls. The applicant asked the [Employer 1 supervisor] what he should do but the [supervisor] told him that he was also receiving calls and there was nothing that could be done. His father decided the applicant should leave Iraq and so he did.

12. The s.107 notice set out that the Department had become aware of information indicating the answers the applicant provided in his protection visa application were incorrect. That information was identified as follows:

    ·That the applicant returned to Iraq between [October] 2012 and [January] 2013. On return he was interviewed by a border officer who stated he had travelled to Iraq as his father had passed away and stayed in his mother’s home in Basra while he was there. The notice set out that this contradicted his statement in his protection visa application that the family had relocated to Kerbala in an attempt to escape the people making threatening calls. The notice alleges that this indicates the applicant’s family did not relocate to Kerbala and the threatening calls did not occur. The notice sets out that the applicant again returned to Iraq between [December] 2014 and [February] 2015;

    ·That on 18 January 2015 the applicant posted on [Social media 1] a photograph of himself superimposed against photographs of an older man, to which numerous people had posted messages of condolence, one of them being ‘God have mercy on your father [Mr A]’. The s.107 notice alleges that this post indicated the applicant’s father had only recently died and contradicts the applicant’s statement to the airport officer [in] January 2013 to the effect that he had travelled to Iraq at that time because his father had passed away and indicated he did not have a compelling reason to return to Iraq or a genuine fear of harm in that country;

    ·That in a [Social media 1] post dated [date] the applicant indicated that he had graduated from [High School 1] in Iraq, indicating that he was there less than 3 months before travelling to Australia and did not leave high school in 2006 and did not work as [an Occupation 1] or for [Employer 1] as claimed. The notice suggests this indicates the applicant’s claims to have received threats due to his work [with Employer 1] were not true.

13. The s.107 notice alleged that these matters indicated the applicant had given incorrect information about:

    ·The details of his education at question 37 of Part C;

    ·The details of his employment at question 41 of Part C;

    ·His identification of Iraq as the country from which he was seeking protection at question 42 of Part C;

    ·The reasons why he left Iraq at question 43 of Part C;

    ·His claims to have experienced harm in Iraq at question 44 of Part C;

    ·His fears as to what may happen if he returned to Iraq at question 45 of Part C;

    ·The persons who may harm him if he returns to Iraq and the reasons for that harm at question 46 of Part C;

    ·Why he thought this would happen at question 47 of Part C;

    ·Whether the authorities of Iraq could protect him at question 48 of Part C.

14. The notice stated that the information may be used to reassess Australia’s non-refoulement obligations towards the applicant. In particular it set out that since being granted protection in Australia the applicant had returned to Iraq for a cumulative period of five months without difficulty and that his voluntary return to Iraq without incident led to serious concerns about the credibility of his protection claims as it appeared that he did not work [for Employer 1] before coming to Australia because he was studying at high school at the time. The notice suggested that the applicant’s situation in Iraq was not as he had portrayed it and that he appeared to have misrepresented his situation in an attempt to gain a positive outcome on his protection visa application.

15. Finally the s.107 notice cited country information contained in the DFAT Country Information Report for Iraq dated 26 June 2017 which suggested that the applicant would not be at risk of harm in Iraq as a Shia and that the southern governorates in Iraq are relatively safe and peaceful. The notice suggested that the applicant’s voluntary returns to Iraq together with the country information cited in the notice may lead to a finding that Australia did not have non-refoulement obligations towards him. The notice invited the applicant’s comments on the possible non-compliance and why he considered that his visa should not be cancelled.

16. The applicant responded to the s.107 notice on 22 June 2018. In that response he denied providing any incorrect information in his visa application, stating (in brief summary) that his returns to Iraq were necessitated by family emergency, that the [Social media 1] post relating to his father’s death was a remembrance post and his father had died in December 2012 as previously stated and that the [Social media 1] post indicating that he had graduated from [High School 1] was an attempt to stay in contact with his school friends and not an indication that he had finished his education and graduated with them. He maintained that he had finished school in 2006 and worked as [an Occupation 1] for two years before getting a job with [Employer 1] and that the information provided in his protection visa application was correct.

17. On 1 May 2019, the delegate made a decision to cancel the applicant’s protection visa. The applicant seeks a review of that decision from this 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, the notice is somewhat confusing but it is not suggested that the notice is deficient or invalid. 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

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

21. 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 in the following respects:

    ·In relation to the details of his education and employment at questions 37 and 41 of Part C;

    ·In relation to the reasons why he left Iraq, his claims to have experienced harm in Iraq and his fear of harm on return to Iraq at questions 42–48 of Part C.

22. The reasons given in that notice for suspecting the above information is incorrect relate to the applicant’s voluntary returns to Iraq since being granted the visa as well as two [Social media 1] posts that are alleged to contradict other information given by the applicant.

23. 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.[1]

    [1] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]

    Did the applicant give incorrect information about his education and employment?

24. The s.107 notice alleges that the applicant gave incorrect information about his education in his protection visa application. The incorrect information is stated to be that the applicant finished school in 2006 (after completing [number] years schooling) before working as [an Occupation 1] for two years and later in a [specified] role for [Employer 1].

25. The sole basis for this finding is a [Social media 1] post appearing on the applicant’s [Social media 1] page indicating he graduated from [High School 1] in 2010, contradicting his statement in his protection visa application that he left that school in 2006. The applicant agrees that the post appeared on his [Social media 1] account, but states that it was only to keep in contact with his graduating classmates and he did not himself graduate, having left school some years before.

26. The delegate did not accept this to be true, considering that it was not necessary for the applicant to say on [Social media 1] that he had graduated, rather than simply attended the school in 2005 and 2006. The delegate considered it was illogical that this would help the applicant stay in touch with his former classmates because they would know he did not graduate in 2010 and so would not identify him through the post. The delegate concluded that the applicant had in fact graduated from high school in 2010, which meant that he had not finished school several years earlier and worked as [an Occupation 1] and [an Occupation 2] for [Employer 1] as claimed in his protection visa application.

27. At hearing the applicant gave evidence that at the time he came to Australia, [Social media 1] was not widely used in Iraq and he was unfamiliar with it. After he was released from detention, a friend helped him set up the [Social media 1] account and enter [additional] information. He gave evidence that his [Social media 1] account also contained other incorrect information, such as indicating that he had studied at [Institution 1] between 2010 and 2014 and later started work as [an Occupation 3] at that institution. Neither of these statements is correct, in fact the applicant did not arrive in Australia until October 2010 and has never studied or worked at [Institution 1].

28. [Social media 1] provides its users with a forum in which to present curated aspects of their lives that reflect the manner in which they wish to be seen. It is a matter of common experience that users post incorrect information on their [Social media 1] pages. [Social media 1] also encourages users to add their schools and employers to their [profile] so that it can link them to others connected with the same institutions. Looking at the print-out of the post contained on the departmental file, it is clear that it was automatically generated by [Social media 1] on the applicant’s timeline as a result of this linked information rather than being a post made by the applicant himself.

29. The [Social media 1] material that has been printed out by the delegate and stored on the Department’s file also shows a similarly auto-generated post indicating that the applicant left [Institution 1] in February 2010. This is clearly incorrect given the applicant did not arrive in Australia until October 2010. Further screen shots submitted to the Tribunal show that the applicant’s [Social media 1] account is now in his correct name and the [profile] shows both the information related to his schooling as relied upon by the delegate, as well as information suggesting that he studied at [Institution 1] between 2010 and 2014 and is currently [an Occupation 3] at the [institution]. None of the statements about [Institution 1] are correct and it is clear that the applicant’s [Social media 1] profile does not reflect his actual circumstances.

30. I consider it significant that before being granted the protection visa, the applicant answered questions about his education and employment at a biodata interview on 9 October 2010; an entry interview on 6 November 2010; an IAAAS interview on 20 February 2011 and an interview with an Independent Merits Review officer on 26 October 2011. The notes and decision records relating to those interviews indicate he has given broadly consistent information about his education and employment history across the course of those proceedings. The Independent Merits Reviewer (IMR) noted in particular that she considered his evidence in relation to his occupation as an [Occupation 2] to be credible.[2] Similarly the Refugee Status Assessment officer recorded in her decision that she found the applicant to be a credible witness and believed he was employed by [Employer 1] as [an Occupation 2] from August 2009 – December 2009.[3]

    [2] Independent Merits Reviewer’s decision dated 30 March 2012 at paragraph 87, folio 179 of the Department’s file [number]

    [3] Refugee Status Assessment Decision dated 15 April 2011 at page 16, being folio 150 of the Department’s file [number]

31. I give significantly more weight to the consistent statements of the applicant about his employment and education details and the findings of the various decision makers who heard the applicant’s contemporaneous oral evidence about his circumstances in Iraq than a single auto-generated post on [social media]. On the evidence before me, I am not satisfied that the applicant gave incorrect information about his education or employment at questions 37 and 41 of Part C of his protection visa application.

    Did the applicant otherwise give incorrect information about his experiences in Iraq or his fear of harm on return?

32. The s.107 notice also suggests that the applicant gave incorrect information about his experiences in Iraq and his fears of return because he voluntarily returned to Iraq on two occasions for periods totalling 150 days in 2012/13 and 2014/15. The applicant states that his returns to Iraq were necessitated by family emergencies and do not indicate he gave incorrect information in his protection visa application. In his response to the s.107 notice he stated that he returned on the first occasion in the lead-up to his father’s death and on the second occasion because his mother was experiencing severe depression as the result of his father’s death.

33. At hearing the applicant gave evidence that he returned to Iraq in October 2012 at a time when his father’s health was critical and he had expressed a wish to see his son again. He flew into Basra and travelled by car to Kerbala, a journey of about 4.5 hours. He stayed at the hospital with his father until his father’s death, enabling his mother to continue caring for his much younger siblings. After his father’s death in December 2012, the family buried him in Najaf before the applicant, his mother and siblings returned to Basra where they stayed with his mother’s brother until the applicant returned to Australia in January 2013.

34. In relation to the applicant’s second return to Iraq in 2014, the applicant gave evidence that he returned to support his mother who was struggling psychologically following the death of his father and the absence of the applicant’s twin brother who has been missing for some years. The applicant took his wife and [child] to meet his mother in the hope of cheering her up, giving evidence the security situation in Iraq was much improved at that time and that his mother had returned to live in Basra following the death of her husband.

1. The departmental file contains notes of an airport interview indicating that on return to Australia from his first trip to Iraq in January 2013, the applicant was interviewed by a border officer and told that officer he had travelled to Iraq as his father had passed away. The s.107 notice alleges that the applicant’s statements in this regard were not true, because a [Social media 1] post indicated the applicant’s father died in 2015 and not 2012.        

2. The [Social media 1] post is dated 18 January 2015 and shows a photograph of the applicant superimposed with photos of his father. The only text posted with the photographs is a brief poem about love and death. The s.107 notice records that numerous people have posted messages of condolence on the post, one of them stating ‘God have mercy on your father [Mr A].’

3. The applicant states that the post was a remembrance post representing the lingering pain he feels over his father’s death. At hearing he told me that from time to time he makes similar posts in memory of his father. He has provided to the Department and the Tribunal a copy of his father’s death certificate and English language translation, confirming his father’s date of death as 18 December 2012.

4. I consider the applicant has provided a reasonable explanation for the [Social media 1] post, being that it is a remembrance post and not a post announcing his father’s recent death. There is nothing in the post itself that would suggest that it is not the case, rather it is comprised only of the superimposed photographs accompanied by a poem. Nor is there anything in the comments that would indicate the death of the applicant’s father was contemporaneous. For example there is no reference to a date of death, nor funeral arrangements, rather the post and the comments contain only respectful remembrances of the deceased.

5. I note as well that the date of the applicant’s father’s death has no relevance to the applicant’s protection claims. It is not suggested that the applicant’s father died other than of natural causes and this is borne out by the death certificate provided by the applicant which records the cause of death as heart and breathing failure due to heart disease and high blood pressure. Nor is it suggested that the applicant gave incorrect information about his father’s death in his protection visa application, as his father was still alive during the period the applicant arrived in Australia, made the visa application and was granted the protection visa and the applicant has never suggested otherwise.

6. Rather the relevance of the post is that it is said to indicate that the applicant did not have compelling reasons to return to Iraq in 2012 and 2014, as his father did not die in 2012 as claimed. I do not accept that assessment.

7. There was no reason for the applicant to lie to the border officer about his reasons for returning to Iraq in 2012/13. The notes of that airport interview indicate the applicant travelled lawfully, on a travel document that was assessed as genuine.[4] At hearing the applicant confirmed that he travelled on an Australian titre de voyage. His return was not in breach of the conditions of his protection visa and the interview was routine. It is difficult to understand why the applicant would be untruthful about his reasons for return and in any case, the applicant has provided a copy of his father’s death certificate which confirms that his father died in December 2012 as claimed.

   [4] Page 11 and 12 of the Departmental file [number]

8. Nor do I consider that the brief notes of the airport interview are a reliable basis for concluding that the applicant’s family did not relocate from Basra to Kerbala in 2009 as claimed in the protection visa application. The notes of that interview which took place at Tullamarine Airport [in] January 2013 run to only a few lines, including that the applicant stayed at his mother’s house in Basra during his two-month return to Iraq.

9. At hearing the applicant gave evidence that he flew into Basra in October 2012 and travelled by car to Kerbala where he visited his father in hospital while his mother cared for his much younger siblings. After his father’s death in December 2012, they buried him in Najaf before returning to his mother’s family’s home in Basra where the applicant stayed until his return to Australia in early January 2013. His mother remained with her family in Basra and did not return to Kerbala as she requires their support since the death of her husband. The applicant’s evidence is corroborated by his father’s death certificate which states he died of heart failure [in] Kerbala, as well as a letter from the Mayor and elders of [a] neighbourhood [in] Kerbala province stating that the applicant’s father was known to them as a resident of the area.

10. The applicant’s voluntary returns to Iraq do not of themselves indicate the applicant gave incorrect information in his protection visa application about his experiences or fears of harm in Iraq. I note that in his application for refugee status, the applicant claimed to fear harm from anti-government militia who were threatening him because of his work with [Employer 1] in 2009, not the Iraqi authorities. A considerable period of time had elapsed between those threats and the applicant’s returns to Iraq. Further the applicant’s protection claims were linked closely to his employment by [Employer 1], which ended as a result of the threats in 2009.

11. As noted above, the RSA officer and the IMR both recorded that they found the applicant to be a generally credible witness about his claimed experiences in Iraq. The RSA officer generally accepted the applicant’s claims about his experiences in Iraq to be true, but considered the applicant was able to avoid the harm he experienced in Basra by relocating to Kerbala. The IMR did not accept all aspects of the applicant’s evidence, but did accept the majority of his claims including that the applicant worked as [an Occupation 2] for [Employer 1] in 2009, during which time he received threatening phone calls demanding he join an independent party or anti-government militia as a result of which he left his job at the [workplace] and moved with his family to Kerbala to escape the threats.

12. Again I give significant weight to the documentary and oral evidence of the applicant over the course of these proceedings, as tested by the RSA and IMR who interviewed him at length about these matters and each of whom made detailed findings about that evidence. I consider this evidence and their findings to be significantly more reliable than a brief airport interview recorded in a few lines of text or the [Social media 1] posts relied upon by the delegate. I note the applicant was a very young man both at the time he arrived in Australia and the time he returned to Iraq and I consider it entirely natural that he felt compelled to return to Iraq to farewell his father and support his mother in the circumstances he has outlined.

13. For these reasons I am not satisfied the applicant gave incorrect information in his protection visa application as to the events he says occurred in Iraq prior to his departure from that country, nor his fears of harm on return. It follows that I am not satisfied he gave incorrect information at questions 42–48 of Part C of his protection visa application. For the reasons already set out above, I am not satisfied the applicant gave incorrect information in his protection visa application as to his education and employment history at questions 37 and 41 of Part C. It follows that I am not satisfied the applicant gave incorrect information in his protection visa application in the manner set out in the notice.

    CONCLUSION ON NON-COMPLIANCE

14. 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.

15. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

16. 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.