2102518 (Migration)

[2023] AATA 781

2102518 (Migration) [2023] AATA 781 (28 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Libby Anne Hogarth (MARN: 9364758)

CASE NUMBER:  2102518

MEMBER:Katherine Harvey

DATE:28 February 2023

PLACE OF DECISION:  Adelaide

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 February 2023 at 2:08pm

CATCHWORDS 
MIGRATION – cancellation – Return (Residence) (Class BB) visa – subclass 155 (Five Year Resident Return) – applicant had given incorrect answer – incorrect information about his identity, citizenship, circumstances and family composition – applicant is a citizen of Pakistan, not Afghanistan – an Australian citizen daughter – applicant has been in Australia for nearly 13 years – applicant has integrated well into the community – strong family, financial and emotional ties to Australia – severe hardship to the applicant, his wife and daughter in Australia – best interests of the applicant’s daughter – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, 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 to cancel the applicant’s Subclass (155) (Five Year Resident Return) 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 had given or provided incorrect answers in his Protection (subclass 866) visa application form lodged on 9 July 2011. 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 20 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The hearing was conducted largely in English and with the assistance of an interpreter as required.

4. The applicant was represented in relation to the review and the representative attended the hearing.

5. 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

6. 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.

7. 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.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

9. 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) of the Act.

10. By way of background, the delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that on [date] March 2010, the applicant arrived in Australia as an illegal maritime arrival, seeking protection on account of being a Hazara Shia, claiming that he would be targeted by the Taliban and Pashtuns if he returned to Afghanistan.

11. On 12 June 2010, the applicant was interviewed by a departmental officer at Christmas Island, where he declared his name as [Name 1], that he was born in [year] in [Village 1], Afghanistan and he obtained a Pakistani passport from a smuggler.

12. On 9 July 2011, the applicant lodged a Protection visa application and submitted signed forms 866B and 866C.

13. In the application form 866B, the applicant declared the following information (answers in italics):

    At Question 1: Give details of ALL persons included in this application
    Family name: [name]
    Given names: [name]

    At Question 9: Are there any members of the same family unit who are NOT in Australia at the
    time of application?
    No

    At Question 11: Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of the application?
    Yes See Attachment

    He provided the following attachment of his family composition:

Family Name	Given Name	Sex (M/F)	D.O.B	Place & country of birth	Citizenship	Marital Status	Relationship to Applicant	Country of residence
[deleted]	[name]	M	[year]	[Village 1], Afghanistan	Afghan	Married	Father	Missing
[deleted]	[name]	F	[year]	[Village 1], Afghanistan	Afghan	Married	Mother	Pakistan
[deleted]	[name]	F	[year]	[Village 1], Afghanistan	Afghan	Single	Sister	Pakistan
[deleted]	[name]	F	[year]	[Village 1], Afghanistan	Afghan	Single	Sister	Pakistan
[deleted]	[name]	F	[year]	[Village 1], Afghanistan	Afghan	Single	Sister	Pakistan
[deleted]	[name]	M	[year]	[Village 1], Afghanistan	Afghan	Single	Brother	Pakistan
[deleted]	[name]	M	[year]	[Village 1], Afghanistan	Afghan	Single	Brother	Pakistan

At Question 20, he signed a declaration acknowledging, in part:
The information I have supplied on or with this form is complete, correct and up-to-date in
every detail.

1. In the application form 866C, the applicant declared the following information (answers in italics):

   At Question 1: What is your full name?
   Family name [name]
   Given names [name]

   At Question 4: What other names have you been known by?
   [Name 2]

   At Question 36: Give full details of all the education you have undertaken (in any country)
   See attachment

DATE	NAME OF SCHOOL	ADDRESS OF SCHOOL	COUNTRY
From To	2005 2008 (part time & intermediate)	[deleted]	[deleted]	Pakistan
From To	Unknown End 2008 (part time & intermediate)	[deleted]	[deleted]	Pakistan
From To	2001 2001 (3 months)	[deleted]	Pakistan

At Question 41: I am seeking protection in Australia so that I do not have to go back to: Afghanistan

At Question 42: Why did you leave that country? See statement attached to RSA application

At Question 43: What do you fear may happen to you if you go back to that country? See statement attached to RSA application

At Question 44: Who do you think may harm/mistreat you if you go back? See statement attached to RSA application

At Question 45: Why do you think this will happen to you if you go back? See statement attached to RSA application

At Question 46: Do you think the authorities of that country can and will protect you if you go back? If not, why not? See statement attached to RSA application

The delegate considered the ‘statement attached to RSA application’ to be the statutory declaration dated 12 June 2010 that the applicant provided in support of his request for Refugee Status Assessment (RSA).

Upon reviewing the applicant’s statements in the statutory declaration, the delegate considered that the applicant provided the following answers to questions 42–26 of Form 866C:

At Question 42, which asked ‘Why did you leave that country?’, the applicant declared his paternal uncle was killed and his father was taken away by the Taliban in 1997, and he has not seen or spoken to him since that day. The applicant further stated that life was difficult as the Taliban would come to the area from time to time to take his mother and other women too, and that his mother would take them all to hide at a neighbouring house. He stated he fled from Afghanistan to Pakistan with his mother and five siblings two years after his father disappeared.

At Question 43, which asked ‘What do you fear may happen to you if you go back to that country?‘ the applicant declared he fears returning to Afghanistan and he is quite sure that he will be killed eventually.

At Question 44, which asked ‘Who do you think may harm/mistreat you if you go back?’, the applicant answered that he is quite sure he will be killed eventually. While he did not elaborate on who he thinks would try to kill him, he stated there is no one, including the government who will protect him.

At Question 45, which asked ‘Why do you think this will happen to you if you go back?’, the applicant indicated this was because of his Hazara ethnicity, and his Shia Muslim faith.

At Question 46, which asked ‘Do you think the authorities of that country can and will protect you if you go back? If not, why not?’, the applicant answered there is no one, including government who will protect him, and that anything can happen to him without anyone being informed. Additionally, he declared, in his statutory declaration that he left Pakistan as he feared harm and discrimination in Pakistan because he is of Hazara ethnicity and Shia Muslim faith.

At Question 65, the applicant signed a declaration acknowledging, in part:
The information I have supplied on or with this Part C of the Form 866 is complete, correct
and up-to-date in every detail.

1. On 13 July 2011, the applicant was granted a Protection visa.

   Events subsequent to the visa grant

2. The delegate’s decision record indicates that on 14 July 2015, the applicant lodged an application for Australian Citizenship. In that application, he identified himself as [Name 1], his father as [name], his mother as [name] and his country of citizenship as Afghanistan.

3. On 11 December 2017, the applicant was interviewed by the Department in relation to his Citizenship application and identity. In the interview:

   ·The applicant asserted that he and his family resided in Pakistan illegally and were unable to acquire any form of legal residency rights during their time there.

   ·The applicant stated that he travelled by plane from Quetta, Pakistan to [Country 1] using a bogus Pakistani passport provided by a smuggler, and allegedly issued in the name of ‘[Name 2]’. He further claimed all travel arrangements including a [Country 1] visa, likely a tourist visa, were in the name of ‘[Name 2]’ and were done by the smuggler and that he paid the smuggler $10,000 USD.

   ·The applicant stated he had been exposed to minimal schooling, neither he nor his siblings obtained education in Afghanistan, and that his parents were unable to read or write. He further stated that the only education he obtained was three months of religious school in Pakistan and English language school starting in 2005, while his siblings were unable to attend school throughout their time in Pakistan.

   ·In his response to how his mother knew his date of birth, the applicant claimed in part ‘we only used to write down the day or only the year at the back of the Holy Quran. Or maybe in like a private diary or something’.

   ·In relation to identity documents, the visa holder stated that neither he nor any of his other family members, held any documentation from Afghanistan or Pakistan, apart from his School Certificate, and a Marriage Certificate issued as a result of his marriage to [his wife].

   ·When asked by the Departmental officer if he ever tried to obtain documentation issued in Pakistan, the visa holder stated ‘I did try to obtain the refugee card for Afghan migrants for at least two days I queued up there at the end of the day when comes my turn to speak to someone they asked for money which I had not on me to pay for them. At the end I could get nothing’.

   ·The applicant also declared he had never heard of the ‘Proof of Registration’ card which was issued to register the Afghan diaspora in Pakistan based on an undertaking between the United Nations High Commissioner for Refugees (UNHCR), Pakistan and Afghanistan.

   ·In the interview, when asked to comment on an image depicting him and persons named [Mr B] and [Mr C], the visa holder stated that he had only met [Mr C] on that occasion, and that he had become acquainted with [Mr B] in 2013/2014 during a visit to a [business] in Melbourne. He asserted that he first met [Mr B] in Australia.

4. The delegate’s decision record indicates that on 29 March 2018, the applicant was granted a Resident Return (subclass 155) visa.

5. On 9 February 2019, in relation to the applicant’s application for Australian Citizenship, the Department requested him to provide documents to support his claimed identity of [Name 1], to comment on adverse information available to the Department in relation to his father, and to determine whether he is of good character for the purposes of assessing the visa holder’s Citizenship application.

6. In response, the applicant provided a Form 80 ‘Personal particulars for assessment including character assessment’, an un-certified copy of the certificate for an English language course he allegedly completed in Pakistan, and a copy of his grandfather’s alleged Afghan Taskera. He also stated in his response that his statements about his father being ‘missing’ since 1997 and his family composition, as provided in association with his Protection visa, were correct and true.

   Notice of intention to consider cancelling the visa (NOICC) and response

7. On 10 December 2019, the Department sent the applicant a NOICC to which he responded on 24, 27 and 29 December 2019. In his responses to the NOICC, the applicant conceded that there had been non-compliance with s 101 of the Act. He conceded that he had provided the department with incorrect details and provided his correct name, confirmed that he and his family members are Pakistani citizens, and corrected some information about his claims for protection. He said the information about his family composition outlined in the NOICC is correct, except his brother [Mr C] is in [Country 2] not [Country 3]. However, he continued to claim to fear harm as a Hazara and a Shia. He said that his mother, sister and brother currently reside in Australia and are holders of protection visas on the basis of their true identities and claims.

8. The delegate concluded that the ground for cancellation arises and was satisfied that the visa should be cancelled.

   The Tribunal’s review

9. The applicant provided the Tribunal with a statutory declaration dated 26 July 2022 confirming that he had provided incorrect information about his identity, citizenship, circumstances and family composition.

10. In his response to the notice, the applicant accepted that there was non-compliance.

11. In support of the review, the applicant provided:

    ·   Copies of his daughter’s birth certificate

    ·   A submission from his representative

    ·   A Statutory Declaration from his brother [Mr B], an Australian citizen

    ·   A Statutory Declaration from [Mr B]’s wife who is an Australian citizen

    ·   A Statutory Declaration from [the] applicant’s sister’s husband

    ·   Photographs of the applicant, [Ms A], their daughter and the applicant’s extended family

    ·   Photographs of the applicant playing cricket

    ·   A letter of support from [Club 1] director dated 25 July 2022

    ·   A letter dated 13 March 2022 from Dr [D], Consultant Psychiatrist, about his patient [Ms A]

    ·   Copies of prescriptions for [Ms A] dated 2 May 2022.

12. On 13 February 2023, in support of the review, the applicant provided:

    ·   Copies of prescriptions for [Ms A] dated 15 December 2022

    ·   A support letter from [a named person], who knows the applicant through [Club 1] and [Organisation 1].

13. After the hearing, the applicant provided:

    ·   His tax assessment notice for the year ended June 2021

    ·   Two tax invoices from the applicant for subcontract work [on] 11–14 April 2022 and 17–18 April 2022.

    ·   A recipient created tax invoice [to] the applicant as supplier for the period 30 January–5 February 2023.

    FINDINGS AND REASONS

14. The applicant does not dispute that he provided incorrect information in relation to his identity, citizenship, circumstances and family composition.

15. On the evidence, the Tribunal finds that the applicant provided incorrect information in response to questions 1, 9, 11 and 20 in application form 866B, and in response to questions 1, 36, 41, 42, 43, 44, 45, 46 and 65 in application form 866C.

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

    Should the visa be cancelled?

17. 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).

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

    The correct information

19. The correct information is that the applicant’s name is [Name 3], not [Name 1].

20. The correct information is that the applicant is a citizen of Pakistan, not Afghanistan.

21. The correct information is that the applicant’s late father was a citizen of Pakistan, not Afghanistan, and at the time of application he lived in Pakistan; he had not been taken away by the Taliban.

22. The Tribunal gives this aspect significant weight in favour of cancellation.

    The content of the genuine document (if any)

23. The s 107 notice does not indicate that any bogus documents have been provided with the application.

24. The Tribunal gives this aspect neutral weight.

    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

25. Information on the Department’s file regarding the applicant’s claims for protection, parts of which were extracted in the delegate’s decision record, indicate that the applicant was granted the protection visa based on his claims of fearing persecution in Afghanistan from the Taliban for being of Hazara ethnicity and Shia faith. He claimed that his paternal uncle was killed and his father was taken away by the Taliban in 1997.

26. At the hearing, the applicant maintained his claim that his uncle, who lived in Afghanistan, was killed by the Taliban. He also maintained his claim to fear harm because of his Hazara ethnicity and Shia faith.

27. The Tribunal is satisfied that the decision to grant the applicant the protection visa was based, wholly or partly, on incorrect information provided in the protection visa application.

28. The Tribunal gives this aspect moderate weight in favour of cancelling the visa.

    The circumstances in which the non-compliance occurred

29. The non-compliance occurred when the applicant provided an assumed identity and claimed to be a citizen of Afghanistan who feared harm from the Taliban for being of Hazara ethnicity and Shia faith. The applicant claimed in his statutory declaration and at the hearing that he provided the incorrect information because people on the boat advised him to say he was Afghan otherwise he would be deported. The applicant said that he regrets providing the wrong information and takes full responsibility for doing so.

1. The Tribunal considers that the provision of incorrect information in the applicant’s protection visa application was deliberate and calculated, and likely done for the purpose of enhancing the applicant’s claims for protection.

2. The Tribunal gives this aspect moderate weight in favour of cancellation.

   The present circumstances of the visa holder

3. The applicant became engaged to [Ms A], an Australian citizen, on [date] January 2015 when they said nikah namah in the Mosque and together they have a daughter who was born on [date] and is an Australian citizen. The applicant is engaged in the daily care of [his daughter] and he also actively cares for his partner, who suffers from a major depressive disorder. [Ms A]’s consultant psychiatrist Dr [D] provided evidence in his letter of 13 March 2022 about her condition and the importance of the support provided to her by the applicant, including by providing a stable home and a stable relationship.

4. The applicant’s mother lives with the applicant, his partner and child and [Ms A] helps care for the applicant’s mother.

5. The applicant sub-contracts [five] and a half days a week.  

6. His youngest sister, her husband and their three sons live in Adelaide and his middle brother, niece and nephew live in Melbourne. A few times a week, the applicant sees his sister’s children and each week they get together as an extended family. Three to four times a year, the applicant and his family travels to Melbourne to see his brother and his brother’s family.

7. The applicant is active in his community. He is the captain [at Club 1] and, since 2013, he has been an active volunteer with [Organisation 1].

8. The applicant described himself as Westernised and drew attention to the tattoos [as] evidence. He has a strong command of English and the hearing was conducted in English after the oaths had been sworn.

9. The Tribunal accepts that the applicant has been in Australia for nearly 13 years, that he has integrated well into the community and that he has strong family, financial and emotional ties to Australia.

10. The Tribunal gives this aspect significant weight against cancellation.

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

11. The applicant responded to the NOICC within the prescribed timeframe and he has been fully engaged with the cancellation process.

12. The Tribunal gives this aspect modest weight against cancellation.

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

13. The applicant provided incorrect information about his identity and citizenship in the application for citizenship.

14. The Tribunal notes that the applicant did not correct the record until December 2019 when he was presented with evidence in the NOICC.

15. The Tribunal gives this aspect moderate weight in favour of cancellation.

    The time that has elapsed since the non-compliance

16. The non-compliance occurred in July 2011 when the applicant lodged the application for the protection visa. The applicant provided the same incorrect information about his identity in his citizenship application on 14 July 2015.

17. The Tribunal considers the time that has elapsed to be a significant period and gives this aspect modest weight against cancellation.

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

18. At the hearing, the applicant said that he had received one speeding fine and subsequently accrued three demerit points after travelling at 60 kilometres an hour in a 50 kilometre an hour zone.

19. The Tribunal is not aware of any other breach of the law.

20. The Tribunal gives this aspect moderate weight against cancellation.

    Any contribution made by the holder to the community

21. The applicant contributes to the Australian community through his work, his captaincy of the [teams] at [Club 1] and as an active volunteer with [Organisation 1].

22. The Tribunal gives this aspect moderate weight against cancelling the visa.

    Other factors

23. While the factors in reg 2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Instructions ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140

24. The applicant’s spouse and daughter are Australian citizens, accordingly the cancellation of the applicant’s visa would not result in the cancellation of any other person’s visa.

25. The Tribunal gives this aspect neutral weight.

    Best interest of the children whose interests would be affected by the cancellation

26. Departmental policy provides that if there are children whose interests would be affected by the cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

27. The applicant’s daughter, who is an Australian citizen, is [age]. The Tribunal considers that it is in the best interests of that child to be cared for by both parents. The Tribunal notes the information provided earlier about the applicant’s partner’s mental health.  In his letter of 13 March 2022, Dr [D] opined that:

    I can only state that should [Ms A]’s husband (the applicant) be required to leave the country, then the risk to [Ms A]’s mental health and by extension the mental health of her baby daughter would be very high.

28. Given the anticipated impact that the cancellation of the visa would have on the mental health of the child’s mother, which is already in a tenuous state, the Tribunal considers that it is not in the interests of the child for the visa to be cancelled.

29. Accordingly, the Tribunal gives this consideration substantial weight against cancellation.

    Other prescribed factors

30. Based on the evidence before it, the Tribunal is unable to give any weight for or against a decision to cancel the visa for the other prescribed factors: whether cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations; whether there are mandatory legal consequences; or any other relevant matters.

    Conclusion

31. 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. The Tribunal has considered the factors that weigh in favour of cancelling the visa, most significantly the correct information. However, in balancing all of the relevant factors, the Tribunal considers that the matters to which it is required to have regard weigh overall against cancelling the applicant’s visa. In particular, the Tribunal gives weight to the following matters: the best interests of the children whose interests would be affected by the cancellation and the present circumstances of the visa holder. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

32. 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.

    Katherine Harvey
    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.