2120251 (Migration)

[2023] AATA 668

2120251 (Migration) [2023] AATA 668 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Marziya Mohammadi

CASE NUMBER:  2120251

MEMBER:Katherine Harvey

DATE:16 March 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 16 March 2023 at 12:24pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – family composition – Pakistani citizenship – fraudulent Pakistani ID documents – verified Afghan citizenship – power to cancel the visa does not arise – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109
Migration Regulations 1994, r 1.12

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 signed on 11 December 2012. 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 7 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Hazaragi and English languages.

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 by the applicant stating that he was born in [Town 1], Afghanistan, that he was an Afghani citizen and that he had travelled on a false passport, and in detailing his family unit.  

10. By way of background, the delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that [in] December 2011, the applicant arrived in Australia as an irregular maritime arrival at Christmas Island and on 21 June 2012 he was granted a Humanitarian Stay visa.

11. On 11 December 2012, the applicant signed a Protection visa application and provided the following information (answers in italics):

    Part B – Question 11 – Are there any members of the same family unit who are NOT in Australia at the time of application?
    Yes. Please see attached.

Given name	Family name	Date of birth	Place of birth	Citizen-ship	Relationship	Marital status	Country of residence
[Brother A]	[year]	Pakistan	Afghan	Brother (dependant)	S	Pakistan
[Brother B]	[year]	Pakistan	Afghan	Brother (dependant)	S	Pakistan
[Brother C]	[year]	Pakistan	Afghan	Brother (dependant)	S	Pakistan
[Father A]	[year]	Afghanistan	Afghan	Father	D	Deceased
[Mother A]	[year]	Afghanistan	Afghan	Mother (dependant)	W	Pakistan
[Sister A]	[year]	Afghanistan	Afghan	Sister	M	Pakistan

Part C - Question 9 – Your place of birth
[Town 1], Jaghori, Ghazni, Afghanistan.

Part C - Question 20 - Your citizenship at birth.
Afghanistan.

Part C - Question 31 - Have you ever had, or used, any other passport or travel document?’
Yes
Type of document: False passport
Document number: Unknown
Country of document: Pakistan
Name on passport: Self
Where is it now? Smuggler took it

Part C - Question 42 - I am seeking protection in Australia so that I do not have to go back to… Afghanistan.

Part C - Question 44 - Why did you leave that country?
Part C - Question 45 - What do you fear may happen to you if you go back to that country?
Part C – Question 46 - Who do you think may harm/mistreat you if you go back?
Part C - Question 47 - Why do you think this will happen to you if you go back?
Part C - Question 48 - Do you think the authorities of that country can and will protect you if you go back?

In response to questions 44 to 48 the visa holder answered:
Please refer to all information provided in support of my request for protection obligation determination including but not limited to my statutory declaration and my POD interview.

In his statutory declaration of 8 March 2012, in support of the assessment of his claims to be a refugee under the Refugee Convention, the applicant declared the following, which the delegated considered to be relevant to his answers to questions 44 to 48:

·     He was born in Afghanistan. He is […] the only ‘breadwinner’ since the passing of his father some years ago.

·     His mother told him his father was a team group leader of Nehzat party, a Hazara faction fighting against the Pashtun in the Ghazni province. He was well known in the area for being in this party and was well known to the Pashtun. In or about 1992 he relocated the family to another part of Jaghori then fled to Pakistan. The visa holder and the rest of his family moved to Pakistan in or around 1993, when he was about [age range] years old.

·     He grew up in Quetta, Pakistan, and went to school until [grade], but could not continue as he was an illegal immigrant and did not have the papers to do so. His father died of natural causes in 2000 and he then became the main income earner. In about 2003 he undertook a [specified] apprenticeship and subsequently opened his own successful business.

·     The violence and indiscriminate killings against minority Hazara Shi’a escalated in Quetta. Shop owners were killed by the Lashkar-e-Jangwi and soon all the large Hazara business owners had left. He received a warning letter from the Lashkar-e-Jangwi and after discussion with his family and other shop owners decided to leave for Australia.

·     He fears returning to Kabul, Afghanistan as his identity would be revealed by local journalists who take pictures of Afghan people who have been deported back to Afghanistan after failing to gain asylum in another country. These people are then killed as Hazara people. They are targeted in Kabul, the province of Ghazni and other areas. As a Hazara he is easily identifiable by his facial features and fears being persecuted for his religious beliefs.

·     He no longer has any ties with Afghanistan and has not lived there since he was a child. He speaks Pakistani dialect and does not know anyone in his village anymore. He would suffer from persecution from his own Hazara people who do not respect those who have previously fled to live in Pakistan. The Taliban surround Jaghori and it would be difficult to go in and out and he would not be able to support his family as he would be expected to, being the oldest surviving male.

·     He also fears he would be targeted by the Nasr party, who are now part of the Hezb-e-Whadat, as he is a family member of his father, who previously fought against them. They are targeting ex-members of the Nehzat party and their families and his father was group leader of this party.

·     If he is deported to Afghanistan or repatriated back to Pakistan the security forces there will not protect him. He is in fear of his life and as a Hazara Shi’a will not be safe. The Taliban has a network of factions who would locate and kill him and his family.

·     There is nowhere safe in Afghanistan. His Shi’a religious faith would put him at risk. He could not safely support his family and he is responsible for his mother, [and remaining family members]. He has nowhere for them to live, no work and the children could not be safely educated.

·     He believes he is a refugee.

1. On 14 January 2013, the applicant was granted a protection visa.

   Events subsequent to the visa grant

2. The delegate’s decision record indicates that [in] March 2017, the applicant lodged an application for Australian citizenship, which is pending assessment.

3. On 27 August 2018, the applicant provided a form 1023 Notification of incorrect answer(s) in relation to incorrect answers provided in his Protection visa application. He advised that he had not included his half-brother in his Protection visa application family list because he was born after his father had re-married and had not grown up with his half-brother, who was not part of his household, so he though it better not to mention him. The applicant provided details of [two half-siblings]:

   ·[Sibling A] – born in Afghanistan, [on date], Afghan citizen living in Australia

   ·[Brother D] – born in Afghanistan, [age range] years old, Pakistani citizen living in Pakistan.

4. The delegate’s decision record indicates that on 12 September 2018, the applicant was granted a Resident Return (subclass 155) visa that ceased and replaced his Protection visa.

5. The delegate’s decision record indicates that on 24 January 2019, the applicant sponsored his spouse [named] (born [on date]) for a combined Partner (subclass 309/200) visa. This application is also pending assessment.

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

6. The Department sent the applicant a NOICC dated 20 September 2019, to which he responded through his migration agent on 6 February, 8 May, 13 May, 15 May and 21 August 2020. In his responses to the NOICC, the applicant denied that there had been non-compliance with s 101 of the Act. He maintained that he was an Afghani citizen, that he had been truthful to the best of his ability and that his life would be in danger if he were forced to return to Afghanistan as he is a Hazara Shi’a and had lived in a Western country for many years. He claimed that the Pakistani documents held by his half-brother [Brother D] were not obtained through their father being a Pakistani citizen but were fraudulently obtained. He claimed that he did not realise that he had to include [these family members] as they were only [half-siblings], they had never been close, nor had they had much contact.

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

   The Tribunal’s review

8. On 31 December 2021, the applicant applied for a review of the delegate’s decision and provided a copy of the delegate’s decision with his application for review

9. In a pre-hearing submission dated 2 March 2023, the applicant provided:

   ·    A letter from his representative dated 2 February 2023 addressing factors that outweigh cancellation and advising that they continue to rely on previous submissions and supporting evidence provided to the delegate

   ·    A Statutory Declaration from the applicant dated 6 February 2020

   ·    A copy and translation of his taskira issued [in] 2018 by the Embassy of the Islamic Republic of Afghanistan in Canberra (the original taskira and translation were sighted at the hearing)

   ·    A copy of his heavy vehicle driver’s licence

   ·    Two copies and translations of a show cause notice from the National Database and Registration Authority (NADRA) to his half-brother [Sibling A]

   ·   A copy of his father’s taskira (sighted at the hearing) and a translation of the biodata page

   ·   A copy of his Titre de Voyage biodata page and two Pakistan visas

   ·   A copy and translation of the applicant’s National Identity Verification Form from the Embassy of the Islamic Republic of Afghanistan in Canberra

   ·   A copy of the applicant’s tourist/visitor registration certificate dated [in] July 2017 from Quetta, Pakistan

   ·   A copy of the applicant’s temporary certificate of registration dated [in] July 2017 from the Pakistan Federal Investigation Agency

   ·   A Statutory Declaration from [a named person], who claimed to know the applicant from [Town 1]

   ·   A Statutory Declaration from [another named person], who claimed to know the applicant from [Town 1]

   ·   A Statutory Declaration from [Mr A], who claimed to know the applicant from [Town 1]

   ·   A copy of [Mr A’s] Australian passport biodata page

   ·   A copy and translation of [Brother C’s] (the applicant’s brother) taskira

   ·   A response to the NOICC dated 2 April 2020 with eight annexures

   ·   A copy and translation of [Brother A’s] (the applicant’s brother) taskira

   ·   Business Activity Statements for [Business 1] for 1 April–30 June 2022, 1 July–30 September 2022, 1 October–31 December 2022

   ·   Various country information reports and articles for Afghanistan and Pakistan from Amnesty International, the UNHCR, Bolaq Analysts Network, the United States Holocaust Memorial Museum, the Guardian, the Program on Extremism at George Washington University, Forbes, Siasat, hazara.net, The Times of India, Human Rights Watch, the United Kingdom Home Office, Sunday, The News, and

   ·   A decision from the Tribunal (differently constituted).

10. After the hearing, the applicant provided:

    ·   A copy and translation of a show cause notice from NADRA to the applicant dated [in] June 2022

    ·   A copy and translation of a show cause notice from NADRA to the applicant’s late father [named] dated [in] June 2022

    ·   A copy of the applicant’s son [Son A’s] Computerised National Identity Card (CNIC[1])

    ·   A copy and translation of [Son A’s] NADRA CNIC Form, showing his mother’s identity card number but no identity card number for the applicant, and

    ·   A copy and translation of [Son A’s] B form.

    [1] CNICs are issued by NADRA to Pakistani citizens.

    FINDINGS AND REASONS

    Part B Question 11

11. As detailed in the decision record, Part B Question 11 asks ‘[a]re there members of the same family unit who are NOT in Australia at the time of application?’ and on the Protection application form is a definition stating that ‘[m]embers of the same family unit include partner (spouse or de facto partner), dependent children and other dependents.’

12. Section 5(1) of the Act defines ‘member of the same family unit’ as ‘one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.’

13. For Protection visas, a member of the family unit has the meaning given in regulation 1.12(4)[2]:

    [2] Migration Regulations 1994 – Reg 1.12

    A person is a member of the family unit of another person (the family head) if the person is:

    a)   a spouse or de facto partner of the family head; or

    b)   a dependent child of:

    i.the family head; or

    ii.a spouse or de facto partner of the family head; or

    c)   a dependent child of a dependent child of:

    i.the family head; or

    ii.a spouse or de facto partner of the family head; or

    d)   a relative of the family head or of a spouse or de facto partner of the family head, who:

    i.does not have a spouse or de facto partner; and

    ii.is usually resident in the family head’s household; and

    iii.is dependent on the family head.

14. In the response to the NOICC dated 8 May 2020, the applicant’s representative said that [Sibling A] and [Brother D] are the applicant’s [half-siblings] as they shared a father but have different mothers. The applicant did not include them in his application because they were only his [half-siblings] and he had never been close or had much contact with them.

15. As detailed in the decision record, the delegate was not satisfied that the applicant’s answer to this question was incorrect. The decision record states:

    There is no information before me to indicate at the time the Protection visa application form was lodged, the visa holder’s [half-siblings] lived with him or were dependent on him, such that they would meet the definition of being members of his family unit. Therefore, I am not satisfied the visa holder’s answer to this question was incorrect for not including details of his [half-siblings].

16. Taking into account the definition of a member of a family unit and the evidence from the applicant, the Tribunal is not satisfied that the applicant’s answer to this question was incorrect.

    Part C Question 9 and 20

17. The applicant claimed that he was born in [Town 1], Jaghori, Ghazni, Afghanistan and that he was a citizen of Afghanistan.

18. As detailed in the decision record, the delegate was satisfied that the applicant was born in Pakistan and a Pakistani citizen, including because, as detailed in the applicant’s half-nephew [Nephew A’s] birth certificate, the applicant’s father held a CNIC, which indicated that he was formally recognised by the Pakistani government as a Pakistani citizen. Based on the evidence, the delegate believed the applicant was entitled to Pakistani citizenship by descent through his father.

19. In his Statutory Declaration dated 6 February 2020, which was provided in response to the NOICC, the applicant claimed that his half-brother [Brother D], father of [Nephew A], had purchased a vacant position on the Child Registration Certificate (B Form) of a Pakistani man called [Mr B]. He said that [Brother D] then adopted the identifying details of [Mr B’s] son so that he could use the B Form to obtain his own Pakistani documents. The applicant claimed that [Nephew A] would have obtained his Pakistani documents by reference to [Brother D’s] Pakistani documents. He further claimed that [Nephew A] was born in Pakistan, had only ever lived in Pakistan and, although technically not Pakistani, for all intents and purposes he is Pakistani and he provided the correct information as he understood it to the Department.

20. As detailed in the decision record, the delegate considered this claim and noted that the applicant had not provided a copy of the B Form to support his claim and the delegate was unable to discount the possibility that the applicant created the explanation to match country information or known practices.

21. Country information reports that document fraud is widespread in Pakistan and that genuine CNICs can be obtained with fraudulent or counterfeit feeder documents:

    Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.

    Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.[3]

    [3] DFAT Country Information Report Pakistan, 25 January 2022, 47.

1. In his pre- and post-hearing submissions, the applicant provided copies and translations of three letters from NADRA dated [in] June 2022. The letters were addressed to the applicant, his late father and his [Sibling A] and respectively cited each [person’s] CNIC number. The letters advised that it had come to NADRA’s notice, based on the investigation conducted by the country’s security agencies, that their citizenship had been found to be suspicious and they were not eligible to have the national identity card that they had obtained. The letters further advised that NADRA was mandated to digitally confiscate or cancel their national identity card under Article 18(1) of the NADRA Ordinance and they had 15 days to present with all their documents at the NADRA Verification Board, otherwise a unilateral decision will be made against them.

2. Under Article 18(1) of The National Database and Registration Authority Ordinance, 2000 (NADRA Ordinance), NADRA has the power to cancel, impound or confiscate CNIC cards.

   18. Power to cancel, impound or confiscate cards.

   1)A card issued under this Ordinance shall be the property of the Federal Government and may, by an order in writing under the seal of the Authority or an officer authorised by it in this behalf, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order:

   Provided that no order shall be made unless such person has been given notice in writing calling upon him to show cause why the order should not be made.

   2)An order under sub­section (1) canceling, impounding or confiscating a card may be made only if there is reason to believe that

   a)  the card has been obtained by a person who is not eligible to hold such card, by posing himself as eligible;

   b)  more than one cards have been obtained by the same person on the same eligibility criteria;

   c)   the particulars shown on the card have been obliterated or tampered with; or

   d)  the card is forged.

   Any person in respect of whose card an order under sub­section (1) has been made may, within thirty days of the order, appeal to the Federal Government against the order and the decision of the Federal Government in appeal shall be final:---
   

   [4] The National Database and Registration Authority Ordinance, 2000 (VIII of 2000) (nasirlawsite.com).

   Provided that no order on such appeal shall be passed unless the appellant has been given an opportunity of being heard.[4]

3. The available country information suggests that NADRA is exercising this power; NADRA revealed in October 2016 that it had blocked an average of 225 CNICs each day since September 2013, with more than 150,000 identities remaining suspended as of March 2020.[5] ‘NADRA database is organised as a network of family trees, with a man as the designated head of each registered household’[6] and it has been reported that when one card is suspended, those linked to family members are also suspended.[7]

   [5] Alizeh Kohari, ‘Pakistan’s biometric ID scheme is stripping citizenship from thousands of people’, CODA, 2 November 2021, Ibid.

   [7] Ibid.

To support his claim that he is a citizen of Afghanistan, the applicant provided a copy of his father’s taskira and a copy and translation of his taskira issued [in] 2018 by the Embassy of the Islamic Republic of Afghanistan in Canberra. In the decision record, the delegate accepted that the applicant being issued a taskira, after his Afghan identity was verified by the Afghan Embassy and his family tree was confirmed by the Afghan authorities, indicates the applicant is recognised by the Afghan authorities as an Afghan citizen.

In view of the applicant’s evidence and the country information, the Tribunal cannot be positively satisfied that the applicant provided incorrect information in relation to his birthplace and citizenship in his Protection visa application. Given this, the Tribunal is not satisfied that the applicant provided incorrect information in relation to his birthplace and citizenship.

Part C Questions 31, 42, 44, 45, 46, 47 and 48

In the decision record, the delegate found that the answers to Questions 31, 42, 44, 45, 46, 47 and 48 were incorrect because the delegate was satisfied that the applicant was a Pakistani citizen at the time of his Protection visa application and that he was born in Pakistan rather than Afghanistan, therefore his claimed adverse profile in Afghanistan did not exist. 

Having found that it is not satisfied that the applicant provided incorrect information in relation to his birthplace and citizenship, the Tribunal cannot be satisfied that the applicant provided incorrect answers to Part C Questions 31, 42, 44, 45, 46, 47 and 48.

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. 

Conclusion

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

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.