2001559 (Migration)

[2021] AATA 4548

2001559 (Migration) [2021] AATA 4548 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2001559

MEMBER:Jason Pennell

DATE:28 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 155 (Five Year Resident Return) visa.

Statement made on 28 October 2021 at 12.15pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – Federal Circuit Court remittal – incorrect answers in the previous Partner visa application – identity details – immigration history – previous countries of residence – period of unlawful residence – three-year exclusion period – genuine and lengthy relationship – support for Australian family – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4014; r 2.41

CASES

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 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 May 2018[1] to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (the Act).

   [1]    The applicant provided the Tribunal with a copy of the primary decision record from the Department of Home Affairs (the Department) dated 18 May 2018

2. The delegate cancelled the applicant’s Subclass 155 (Five Year Resident Return) visa on the basis that the applicant provided incorrect information about her identity and immigration history on her previous Subclass 309/100 Partner visa application,[2] and on the basis that the applicant failed to provide an answer about her previous countries of residence.[3] Accordingly, the delegate determined there was non-compliance with ss 101 and 107A of the Act.

   [2]    Section 101(b) of the Act

   [3]    Section 101(a) of the Act

3. On 25 May 2018 the applicant initially applied to the Tribunal (differently constituted) (the First Tribunal) for review of the delegate’s decision. On 5 September 2019 the First Tribunal affirmed the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa. The applicant applied for judicial review to the Federal Circuit Court of Australia (FCCA). By an order made [in] January 2020 the FCCA remitted the applicant’s case back to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 25 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.

5. Due to the COVID-19 pandemic, the hearing was conducted via video conference using the Microsoft Teams application. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to do so by having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick. Accordingly, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

6. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. Section 101 of the Act provides:

   101 Visa Applications to be correct

   A non-citizen must fill in or complete his or her application form in such a way that:

   (a)All questions on it are answered; and

   (b)No incorrect answers are given or provided.

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

   Did the notice comply with the requirements in s 107?

10. In the present case, there is a question as to whether the Notice of Intention to Consider Cancellation (NOICC) issued by the Minister’s delegate complied with s 107 of the Act.

11. Section 107 of the Act provides:

    107 Notice 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 …

12. Section 107A of the Act provides:

    107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

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

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

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

13. Section 107A of the Act provides that the failure to comply with section 101 of the Act in connection with a previous application may be grounds for cancellation of the applicant’s current visa. In this case, the applicant having provided incorrect information on her application for a Partner (Subclass 309) visa granted on 10 February 2006 may result in the cancellation of her current Five Year Resident Return (Subclass 155) visa granted on 8 May 2017.

14. On 29 August 2005, the applicant applied for a Partner (Subclass 309) visa. The applicant provided the following answers to the questions on her visa application:

    Question 6 – Have you or any other person included in this application ever been refused an entry permit or visa to Australia?

    ‘Yes, applied for a visitor visa in 2002 and got refused.’

    Question 10 – applicant was asked her full name to which she replied

    Family Name ‘[Applicant’s name]’

    Given names ‘[Names]’

    Question 14 – other names you are, or have been, known by (including name at birth, previous married names, aliases)

    ‘N/A’

    Question 16 – Date of Birth

    ‘[DOB 1]’

    Question 80 – have you or any other person included in this application ever been excluded from or asked to leave any country (including Australia)?

    ‘No’

    Question 82 – Which countries have you lived for 12 months (in total) or more during the last 10 years?

    No answer

15. As part of the visa application the applicant declared that the information supplied in the application was complete, correct and up-to-date in every detail.

16. Based on the information provided the applicant was granted her Partner visa (Subclass 309) on 10 February 2006.

17. Through the use of facial image comparison technology, the New South Wales Roads and Maritime Services (NSWRMS) compared the applicant’s facial photograph matches with other facial images in the system and identified the applicant as having the same facial image as [Alias A] (Date of Birth [DOB 2]).

18. The departmental records state that [Alias A]:

    (a)entered Australia [in] November 2002.

    (b)applied for a protection visa on 18 December 2002, which was refused on 13 February 2003.

    (c)applied for a review of the Department’s decision to refuse her protection visa application. Her review application was ultimately not successful.

    (d)remained in Australia unlawfully from 25 March 2003 to 19 June 2003.

    (e)was in immigration detention from 12 June 2003 to 20 June 2003.

    (f)departed Australia [in] December 2004.

19. By a Form 1023 Notification of Incorrect Answer(s) dated 16 May 2017 the applicant admitted that, contrary to the answers in her partner visa application, she was in Australia between 2002 and 2004 and she had applied for a Protection visa (Subclass XA) which was refused.

20. Therefore, based on the NSWRMS facial imaging result and the admission made by the applicant in the Form 1023 dated 16 May 2017 the Tribunal is satisfied that the applicant’s answers to questions 6, 14, and 80 of her partner visa application were incorrect and in breach of s 101(a) of the Act and that she did not answer question 82 in breach of s 101(b) of the Act.

21. Therefore, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and s 107A and that the NOICC issued under s 107 complied with the statutory requirements.

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

22. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 NOICC, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The applicant’s non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101(a) and 101(b) of the Act in the following respects:

    (a)section 101(a) –­­­­­­­­ providing no answer on her previous partner visa application about the countries she had lived in for 12 months (in total) or more during the last 10 years

    (b)section 101(b) ­– providing incorrect answers on her previous partner visa application about whether she had ever been refused an entry permit or visa to Australia, whether she was known as any other name(s) and whether she has ever been excluded from or asked to leave any country.

23. On 9 June 2017, after learning that the NSWRMS had identified her as having previously been in Australia between 2002 and 2004 using a different name, the applicant’s representative submitted a ‘Form 1023 Notification of Incorrect Answer(s)’ to the Department clarifying the correct details about her identity and immigration history.

24. On 12 April 2018 the Department issued the applicant the NOICC under s 107 of the Act. The NOICC particularised the applicant’s non-compliance with ss 101(a) and 101(b) of the Act insofar as she did not provide correct information about her identity, immigration history and countries of residence in her Subclass 309/100 Partner visa application.

25. The applicant responded to the NOICC conceding she provided incorrect information about her identity and immigration history to the Department in her Subclass 309/100 Partner visa application.

26. The applicant stated she initially applied for a tourist visa whilst offshore in 2002 under own her name, however, it was refused. She then subsequently applied for a tourist visa under her cousin’s name (Ms [Alias A] – [DOB 2]) which was granted. She arrived in Australia under the name [Alias A variant] and then applied for a protection visa onshore but was unsuccessful and as a result, was detained in a detention centre due to becoming an unlawful non-citizen after her bridging visa ceased. The applicant was then returned to China [in] December 2004 with an exclusion period of three years.

27. The applicant in her submissions in response to the NOICC dated 15 May 2018 conceded that she provided the Department with incorrect information pertaining to her identity, previous Australian migration history and countries of residence history in support of her Subclass 309/100 Partner visa application and asked that the delegate exercise their discretion under s 109(1) of the Act not to cancel her visa. As such, the Tribunal finds that there was non-compliance by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

28. 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). 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.[4] The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994.

    [4] Section 109(1)(b) and (c) of the Act

29. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case.[5] The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures 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.

    [5] MIAC v Khadgi (2010) 190 FCR 248

    The correct information

30. The departmental records indicate that the applicant entered the country [in] November 2002 known as [Alias A] on a visitor visa. [Alias A] applied for a protection visa to extend her stay which was refused on 13 February 2003. Her request to review her protection visa application was refused. She was an unlawful non-citizen in Australia from 25 March 2003 to 19 June 2003 and was held in immigration detention from 12 June 2003 until 20 June 2003. She departed Australia [in] December 2004 incurring a three-year exclusion period which would restrict her from being granted further visas under Public Interest Criterion 4014.

31. Based on the departmental records and the applicant’s own admission, the Tribunal finds that she provided incorrect information regarding her previous identity and migration history to facilitate the granting of her visa. Accordingly, the Tribunal gives this consideration no weight in the applicant’s favour.

    The content of the genuine document (if any)

32. This consideration is not relevant in this case and as such the Tribunal gives it no weight in the applicant’s favour.

    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

33. The evidence of the applicant and [Mr A] was that they met at a party in 2004. After the applicant returned to China [Mr A] visited the applicant in China and met her daughter and her family. [Mr A] returned to China and married the applicant in or about June 2005. The applicant was granted a partner visa in 2005 and returned to Australia and [Mr A]. They have been living as husband and wife since they were married in June 2005.

34. Nevertheless, the applicant applied for her partner visa within the three-year exclusion period incurred while using her previous identity, [Alias A]. Had the delegate been aware that the applicant had entered Australia under another identity and of her previous adverse migration history, the delegate would have been aware that she was not eligible for the grant of a partner visa and her application would have been refused.

35. The Tribunal acknowledges and accepts the applicant’s claim that the primary reason for her being granted a partner visa was her marriage to [Mr A] and the fact that they are in a genuine relationship. The Tribunal notes and accepts that the applicant and [Mr A] continue to be in a genuine continuing relationship. Nevertheless, she would have been subjected to the exclusion period at the time of her application and as such her visa would have not been granted. As a result, the Tribunal places some weight against the applicant in relation to this consideration.

    The circumstances in which the non-compliance occurred

36. The circumstances in which the non-compliance occurred were that the visa holder intentionally provided incorrect information in relation to her previous identity and adverse immigration history to facilitate the grant of her partner visa and circumvent the exclusion period incurred under her previous identity.

37. The applicant accepted that she did not reveal her previous identity when applying for her partner visa. She expressed her deep regret regarding the circumstances in which the non- compliance occurred. Her evidence was that at the time of her applying for her visitor visa her migration agent had advised that she use an alternative identity because she had initially been refused a visitor visa under her own name. As a result, she used her cousin’s identity for the purposes of migration status while in Australia. Her evidence was that she realises that it was a mistake and deeply regrets her actions.

38. The applicant’s evidence was that when she applied for her partner visa she did so under her own name. When making the application she did so on the basis that she was married to [Mr A] and wanted to return to Australia with him. She claims not to have turned her mind to the fact that she had previously travelled to Australia under an alternate identity. Her evidence was that she was unaware that she would have been excluded from Australia for a period of three years under Public Interest Criterion 4014.

39. Nevertheless, the fact remains that the applicant failed to disclose her previous migration history at the time of her making the partner visa application. As such the Tribunal places no weight in favour of the applicant in relation to this consideration.

    The present circumstances of the visa holder

40. The applicant currently resides with her husband, [Mr A], in Australia. The Tribunal accepts that they are in a genuine and continuing relationship having been married since 2005 (a period of 16 years) and have continually lived together for the duration of their marriage.

41. [Mr A’s] evidence was that he works as [an occupation 1], primarily within the state of New South Wales. The applicant was working as [an occupation 2] but stopped working approximately three years ago to help care for her [grandchildren].

42. The applicant’s evidence was that she was born on [DOB 1] in [a named] City, Liaoning province, China. The applicant’s evidence was that she was abandoned as a child (three (3) days after her birth) and was adopted by her parents [named]. The applicant’s father worked for the local power company and died in June 2021. The applicant’s mother worked at the local school. The applicant has no siblings.

43. The applicant completed her high schooling in China after which she commenced working at her father’s company.

44. The applicant was married in September 1987 because of which she has one child, a daughter, [named] born on [date]. The applicant’s daughter now lives in Australia. She is married to an Australian citizen and they have [number] children [genders and ages].

1. The applicant’s evidence was that her relationship with her husband was very bad. He was an alcoholic and abusive towards her. As a result, they divorced in May 1999.

2. At the time of her divorce her daughter was about [age] years old. The applicant’s evidence was that she did not receive any support from her husband and as such she was not able to support her. The applicant’s evidence was that she was advised that she would find work abroad to make some savings for her daughter’s future. The applicant had little knowledge of overseas or how to apply for a visa. As a result, she relied on the advice of her agent to travel to Australia. On the advice of her agent she made application for a visa in the name of [Alias A].

3. The applicant and [Mr A] met at a party in 2004. [Mr A] visited the applicant in China soon after she had returned, and they were married in June 2005. They have remained together since that time. The applicant’s daughter initially lived with the applicant and [Mr A] in [NSW] until she was married. The applicant’s evidence is that she and [Mr A] love and support each other. They raised her daughter together and now enjoy the fact they have grandchildren for whom they can care. The applicant’s evidence was that she now helps care for her grandchildren.

4. The only family the applicant has remaining in China is her elderly mother. Her evidence was that her mother had been diagnosed with cancer and was very ill. Due to the fact her visa had been cancelled she was not able to return to China to care for her mother pending the outcome of her appeal. As a result, her daughter was forced to return to China to look after her grandmother.

5. The Tribunal has accepted that the applicant has remained in Australia married to [Mr A] for 16 years and accepts they are in a genuine and caring relationship. It accepts the applicant’s evidence that the cancellation of her visa would mean that she would suffer great anxiety and harm because of being separated from her husband, daughter and grandchildren. Accordingly, the Tribunal places great weight on the consideration in the applicant’s favour.

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

6. The applicant has provided timely responses to the Department and the Tribunal and has made full admissions of her non-compliance as claimed. The applicant submitted a Form 1023 Notification of Incorrect Answer(s) dated 16 May 2017 where she notified the Department of her incorrect answers provided in her partner visa application. Accordingly, I give this some weight in the applicant’s favour.

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

7. The applicant under her previous identity [Alias A], overstayed her visitor visa from 25 March 2003 until she obtained a bridging visa on 20 June 2003. She was held in immigration detention from 12 June 2003 to 20 June 2003. These instances of non-compliance were part of the applicant’s attempts to remain in Australia under her previous identity. As such the Tribunal places no weight on this consideration either for or against the applicant.

   The time that has elapsed since the non-compliance

8. There has been considerable time since the non-compliance. The applicant lodged her partner visa application on 29 August 2005. Although the applicant incorrectly made no mention of her previous applications for visas under her previous identity, her application for a partner visa was made on the basis that she was married and in a relationship with [Mr A]. A fact that remains true today 16 years later.

9. Over the last 16 years the applicant and [Mr A] have developed a life in Australia. They have been law-abiding people who have contributed positively to their friends and family. The statements to the Tribunal by [five named people] all attest to the fact the applicant is a kind and friendly person who is engaged with her family and friends in a positive and caring manner. The applicant’s tie to the community is even more cemented by the fact that her daughter remains living in Australia, is married and has [number] children. The applicant assists her daughter in caring for her grandchildren. The Tribunal places some weight on this consideration in the applicant’s favour.

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

10. There is no evidence that the applicant has breached the law. The Tribunal gives this consideration little weight in the applicant’s favour.

    Any contribution made by the holder to the community

11. The applicant did not provide any evidence of her being involved in community-based clubs or societies. However, she has contributed to the community in the sense that she has been a hardworking law-abiding person who has contributed to the welfare of her family and friends more generally. The Tribunal gives this consideration some weight in the applicant’s favour.

    Any consequential cancellations under s 140

12. The applicant holds a Five-Year Resident Return visa. There is no information before the Tribunal to suggest that any other person’s visa would or may be consequentially cancelled if the applicant’s visa is cancelled.

13. Accordingly, the Tribunal does not place any weight on this matter in the applicant’s favour.

    Any international obligations that would be breached because of the cancellation

14. The Tribunal has an obligation to consider the Rights of the Child and Family Unity Obligations. Australia is a signatory to the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Article 3.1 of the CROC states that in all actions concerning children the best interest of the child shall be the primary consideration.

15. Article 23.1 of the ICCPR states:

    The family is the natural and fundamental group unit of society and is entitled to protection by society and the state…

16. In Australia the courts have found that generally it is in the best interest of the child to remain with their family. In this case the applicant’s daughter is a grown woman, married with [number] children of her own. While the Tribunal accepts that the cancellation of her visa will cause some hardship concerning separation from her daughter, given her daughter’s age and circumstances it is not an issue that falls within Australia’s obligations under the CROC or the ICCPR. If the applicant’s visa is cancelled her grandchildren will not be denied their parents. Accordingly, the Tribunal does not give any weight to this matter in favour of the applicant.

    Mandatory consequences to cancellation decision

17. In the event that the applicant’s visa is cancelled she will become an unlawful non-citizen and liable to be placed in detention under s 189 of the Act and removal from Australia under s 198 of the Act if she does not depart the country voluntarily or apply for a further visa.

18. The applicant may subjected to s 48 of the Act and have limited options to apply for further visas in Australia and to the provisions of Public Interest Criterion 4013, which would prevent her from being granted certain visas for a period of three years from the date of the visa cancellation.

19. These are shared consequences of a visa cancellation outcome and as such the Tribunal gives no weight to these matters in the applicant’s favour.

    Other matter

20. The Tribunal accepts that if the applicant’s visa is cancelled there will be a considerable adverse impact on her family unit because of her being separated from them because of her removal to China. The Tribunal places some weight on this consideration in favour of the applicant.

21. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concluded that the visa should not be cancelled.

    DECISION

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

    Jason Pennell
    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.