ALI (Migration)

[2019] AATA 992

ALI (Migration) [2019] AATA 992 (11 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD RIZWAN ALI

CASE NUMBER:  1816368

DIBP REFERENCE(S):  BCC2017/1111732

MEMBER:Alan McMurran

DATE:11 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 11 January 2019 at 12:28pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination Scheme visa– Subclass 186 – bogus document in the form of employment history – cancellation notice is not valid – the hotel existed at the relevant time – Employer’s Certificate as to service by the visa holder was in fact correct – Employer Certificate was not a bogus document– Decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109
Migration Regulations 1994, rr 1.15, 2.41

CASES
Zhong v Minister for Immigration and Citizenship [2008] FCA 507

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 Immigration to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that claims the applicant had been employed as a cafe and restaurant manager in Pakistan were incorrect and documents provided in support of that claim were bogus.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 21 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the former employer, a representative named Almas Akram. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The Tribunal had available material in considering this review including the Tribunal’s file, the Department’s file[1] , and the oral evidence from the hearing, and information from a variety of sources provided by the applicant including written submissions from the representative.

   [1] BCC2017/1111732

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

   Background

7. The applicant is a 38-year-old citizen of Pakistan. The applicant came to Australia as a student in March 2010 and was granted a 457 visa to work as a cafe or restaurant manager on 15 August 2013.

8. The visa was granted on the basis of information provided by the applicant, including information about his previous work history in Pakistan.

9. On 27 February 2017, the applicant was granted an ENS subclass 186 visa, again based on his prior work history, including the work history obtained and accepted for the subclass 457 visa.

10. In the information obtained from the applicant, he claimed to have been working in Pakistan as a hotel manager for the period from 2003 to 2007. This was supported by a written employer statement (undated) provided with the application.

11. On 26 July 2017, the Department requested employment verification on the applicant’s job role at the Lasani Hotel Restaurant and Marriage Hall from its post in Islamabad.

12. On 16 August 2017, the post was asked to check business registration records for the previous employer, Lasani Hotel Restaurant and Marriage Hall and advise the date the business commenced and/or ceased, and to check business registration in accordance with telephone bills provided, and attempt to contact Muhammad Usman Ashraf (the writer of the applicant’s work statement) at a given number.

13. On 25 August 2017, the Department issued a Notice of Intention to Consider Cancellation (NOICC) which was sent to the applicant. The NOICC provided particulars that the Department “has evidence that Lasani Hotel, Restaurant and Marriage Hall, as you have indicated in your resume and an Experience Certificate, does and did not exist.”

14. The NOICC duly sets out:

    ·relevant provisions from the Act,

    ·a summary of the evidence provided by the applicant with his application for the 457 visa,

    ·a statement that the Department “has evidence that Lasani Hotel, Restaurant & Marriage Hall as you have indicated in your resume and experience certificate, does and did not exist”

    ·consideration that the applicant had provided incorrect information and a bogus document

    ·Particulars of possible non-compliance “because you have provided incorrect answers” and “and an experience certificate” which the delegate regarded as incorrect because that experience was based upon a hotel and restaurant which “does and did not exist”.

15. The NOICC does not describe or provide details of the “evidence” upon which it relies to show the hotel and restaurant does and did not exist.

16. A review of the Department’s file[2] shows that at the time of issue of the notice on 25 August 2017, the best information available to the Department was contained in an email from the post in Islamabad dated 16 August 2017, which concluded that “based on the information above the referral is closed as un able to verify”.

    [2] ff 6-8

17. On 8 September 2017, an agent for the applicant responded to the NOICC. The response advised the Department that:

    “The Lasani Hotel has stopped its operations since 15/07/2015 when the owner has left for Dubai.

    Lasani hotel has always existed and applicant has worked there as a restaurant manager however we assume that scope raised by the Department states that the business under discussion never existed.

    The delegate did not mention as to how the Department has come to the above-stated conclusion. Even a simple search on Google could have verified the existence of Hotel Lasani.”

18. The response included a copy of a Google business search, tax record for the hotel, a menu, phone bills, photographs and a reference letter, being the same reference letter relied upon by the applicant from the previous employer.

19. On 28 September 2017, the Department sent the response information to its post for checking of the provided information and the business registration. On the same date, the Department was advised from Islamabad that they “are unable to verify the business”. The Department file does not indicate how that conclusion was reached, other than by implication that the Islamabad Post was unable to contact anyone on the phone numbers provided and as had been confirmed by the Post on 16 August 2017.

20. On 9 October 2017, the post advised as follows:

    “(sic) In order to verify the provide employment document post tried calling on all 3 mentioned numbers again and this time all 3 numbers are observed as non-listed numbers. Post also contacted Pakistan Telecommunication authority and upon verification they confirmed, that the numbers are from Toba Tek Singh and are registered as residential numbers, further they confirmed that the numbers are not working, an issue is appearing from the customers end.

    Post has also searched Internet regarding the Lasani Hotel but no information was found.

    There is a possibility that the hotel got closed, as PA was working there many years ago.

    There is no contact details for the hotel and there is no link from which it can tracked.

    Based on the information above the referral is closed as un able to verify.”

21. On 12 October 2017, the Department requested its post in Pakistan to “please confirm there are no business registration records for the business (Hotel) in the name of Muhammad Usman Ashraf”.

22. On 12 October 2017, the post in Islamabad responded as follows:

    “As per provided FBR document the business is registered from 09/01/2014 and it does show that Mr Muhammad Usman Ashraf is the owner of the hotel. (FBR’s website screenshot is attached with the email). But PA has worked there from 2003 to 2007.

    It is not possible for us to find out if the business is operational or not without a site visit and due to lack of financials, post is not conducting any site visits lately.

    I also have checked with Pakistan Telecommunication Authority (PTCL) and they have confirmed that number 046-2511358 is registered as a residential number and as per PTCL policy they can’t disclose the name and address of the owner if the number is a residential number. Same goes for the number 046-2518058.

    The one thing I would like to mention here is that, though PTCL didn’t provided the address of the numbers owner they did confirmed that phone number 046-2518058 and 046-2511358 are registered with different address.

    I hope this clears the picture even more.

    Regards

    Muslim Habibi” (emphasis added)

23. On 31 May 2018 the Department cancelled the applicant’s ENS subclass 186 visa granted 27 February 2017.

24. The applicant was provided with a Record of the Decision which concluded that information provided by the applicant in his application form for the 457 visa about his former employment was incorrect, in breach of section 101 (b) of the Act, which requires that no incorrect answers are to be given to questions in the application form.

25. The notice also informed the applicant that he had provided a bogus document being an employment reference which was relied upon on 4 May 2013 when the applicant lodged his application for the 457 visa.

26. In the decision, the delegate noted as follows:

    “Evidence of non-compliance:

    On 04 May 2013 the visa holder lodged an application for a temporary work (skilled) (subclass 457) visa.

    The visa holder applied in the nominated occupation of Cafe or restaurant manager. Under regulation 457.223 (4) (da) (from August 2013 Migration Regulations) the applicant is required to demonstrate that they have the required skills, qualifications or employment background to perform the nominated occupation. In this case the visa holder was required to demonstrate that he had a minimum of 3 years’ work experience undertaking the role of the Cafe or restaurant manager

    On the visa application form non-stay temporary business visa-record of responses in the section entitled position details-details of your qualifications, training and skills relevant to your proposed activity in Australia, the visa holder provided the following answers:

    Educational qualifications: “please see attached”

    Trade or professional qualifications: “please see attached”

    Training (including on the job training): “please see attached”

    The documents submitted with the visa holder’s application included a certificate of completion of a diploma of business administration from the Australian College of vocational studies, a resume, and an employment reference.

    The employment reference for the Lasani Hotel, Restaurant & Marriage Hall in Pakistan stated that the visa holder worked as a restaurant manager from February 2003 to August 2007.

    On the basis of the information provided as part of the visa holders temporary work (skilled) (UC 457) visa application, including the documentation provided in relation to his work experience, and meeting all other relevant criteria, the delegate granted the visa on 15 August 2013.

    On 16 August 2017 the Department conducted an integrity check in regard to the visa holder’s employment reference in the employment information as stated in his resume. The result of the integrity check was that the Lasani Hotel and restaurant did not appear to exist.

    Given the apparent lack of evidence that this business existed, a delegate sent the visa holder a notice of intention to consider cancellation (NOICC) of his visa under section 109 for breach of section 101 (b) for incorrect answers provided in regard to his employment history on his resume, and for a breach of section 103 for providing to the Department what appeared to be a bogus document in the form of an employment reference from the Lasani Hotel.”

    (emphasis added)

27. In the reasons for the decision, the delegate also noted the following:

    “I note the visa holder has submitted a tax return for the business dated from 2014. Although nothing has been provided prior to 2014, I acknowledge that the Lasani Hotel was operational in 2014 and may have been so prior to this date.

    I consider the visa holder’s response to the NOICC only addresses the existence of the Lasani Hotel and its owner from recent years, however he has not provided any evidence of his actual employment as a restaurant manager for the period 2003-2007…..

    I consider the lack of evidence provided by the visa holder in response to the NOICC which may support his claim that he lived and worked in his hometown during the period 2003-2007 is notable….

    I consider the visa holder’s current sponsor has a range of credibility concerns and this is significant when considering the range of credibility concerns regarding the visa holder’s previous employment history in Pakistan.

    I consider this sponsorship arrangement raises further concerns regarding the work experience information that the visa holder has submitted to facilitate this temporary work (subclass 457) visa.

    Having considered the visa holders reasons for why he disputes that non—compliance occurred, the range of credibility concerns and the lack of evidence to support his claims I remain satisfied that the visa holder gave an incorrect answer in regard to his work history… And that he provided a bogus document in the form of an employment reference..”.

    (emphasis added)

28. On 5 June 2018, the applicant lodged this application for review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. 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.

30. 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, and 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.

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

32. At the hearing, the applicant was asked questions about the information he had provided in response to the NOICC. The applicant told the hearing he had provided whatever information was available in 2018 to show that the restaurant had existed in 2003. The applicant said that he had been in Australia since 2010 and did not know that the restaurant had closed or that the owner had left. He said he only learnt about the NOICC in August 2017 and that was when he commenced making his own enquiries in order to respond to it. He said because of the 15 years that had elapsed since he had started working there, it was difficult for him to provide any records at all.

33. He was asked about the affidavit evidence recently presented by Mr Muhammad Usman Ashraf on 9 August 2018, and from Almas Akram on 27 July 2018. The Tribunal had a telephone conversation with Mr Almas Akram, who was contacted in Pakistan from the hearing room. Mr Akram said he had prepared his statement and that it was true. He said he had been asked to prepare it by the applicant’s brother whom he knew. He confirmed in his oral statement that the applicant was “the Ali” who had applied for a job in 2003 and he had started for a few weeks on trial as a “manager”. He confirmed that the restaurant and hotel was then trading and the applicant had been working at that location in Toba Tek Singh.

34. The Tribunal put to the witness that the hotel did not exist in 2003, or since. The witness said the hotel did exist in 2003.

35. The Tribunal asked the witness about communicating with him by telephone in 2017. The witness said he had 4 or 5 telephones at that time and that it would be possible to find him when in Pakistan on one of those phone numbers. He said that his number was available as a public record, in the event someone was trying to locate him or talk to him. He had not spoken to anyone from the Department.

36. The statement from Mr Akram confirms the Lasani Hotel exists or existed in 2003 until 2007. This statement identifies the applicant and confirmed his role as manager in that period. The Tribunal finds no reason to disbelieve or discredit that evidence given on oath, having spoken directly with the deponent. He also confirmed the address in Toba Tek Singh, which was the area identified by the telephone numbers used by the Department’s post in carrying out the integrity check.

37. The Tribunal attempted also to contact Mr Ashraf. At the hearing however the applicant informed the Tribunal Mr Ashraf was not contactable and overseas at this moment.

    Did the notice comply with the requirements in s.107?

38. In the present case, there is a threshold question as to whether the notice issued by the Minister’s delegate complied with s.107.

39. In the event the notice is found not to be compliant, the discretionary power to cancel the applicant’s visa does not arise.

40. Prior to the hearing, the applicant’s representative made a detailed written submission by letter dated 12 December 2018. The submission challenges the purported section 107 notice and submits that the notice was not a valid Notice for the purposes of section 107.[3]

    [3] T File ff 55-66

    Relevant Law

41. Section 107 refers to a “Notice of incorrect applications”. It provides that where the Minister considers the visa holder did not comply with (in this instance) section 101, which provision requires that an application form for a visa must be completed in such a way that all questions are answered and no incorrect answers are given or provided, then the Minister may give the visa holder a notice providing particulars of possible non-compliance.

42. Section 107A sets out that the possible non-compliance may “include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person” (which is the factual circumstance asserted in this instance).

43. The relevant statutory provisions are set out in the attachment to this decision and have been the subject of judicial review. Relevantly, in Zhong v Minister for Immigration and Citizenship[4]  (Zhong) , the Federal Court determined that:

    “Section 107(1) is engaged because the Minister, or a delegate of the Minister, has reached a state of mind where they consider the holder of a visa has not complied with a relevant section.”

    [4] [2008] FCA 507 per Lander J

44. In this instance, the delegate determined the applicant had not complied with section 101, because he had answered the question about details of his qualifications with the words “please see attached”. The delegate then referred to the attachment, which was a copy of the resume supplied with the applicant’s 457 visa application on 4 May 2013. The resume stated the applicant had been a restaurant manager at the Lasani Hotel, Restaurant & Marriage Hall (the Hotel) from February 2003 to August 2007. This statement was supported by an “Experience Certificate”, signed by the Chief Executive of the Hotel.

45. The delegate then stated in the Notice that the Department has evidence that the Hotel indicated in the Experience Certificate “does and did not exist”. In the particulars set out in the notice, the delegate states that in light of the evidence outlined, the applicant’s answer was incorrect and experience certificate supplied, a bogus document.

46. The Tribunal has had regard to the written submissions from the representative and those made at hearing. The distinction between the present instance and the decision in Zhong is a fine one, as in Zhong, the delegate refers to an applicant who “may have provided incorrect information”. For that reason, (at least, in part) the Federal Court was not satisfied the delegate had reached the requisite state of mind required to demonstrate the applicant had not complied with section 101.In the present case however the delegate was firmly of the view that the Department had evidence the hotel-employer relied upon by the applicant “does and did not exist”.

1. The Tribunal has considered the representative’s arguments and submissions and relevant case law authorities. In the Tribunal’s view, the authorities establish that the sufficiency of the notice must be such as to fairly inform the visa holder of the basis upon which the cancellation has been considered and so that the visa holder may adequately respond to the notice and make submissions accordingly.[5]

   [5] [Case details deleted].

2. The representative has made a strong and appropriate submission that the notice is not valid, and the Tribunal is inclined to agree that the notice might well have provided more particulars of the basis on which the alleged non-compliance was based. The representative submitted that merely stating that the hotel “does and did not exist” without further explanation, was borderline capricious and arbitrary and outside the bounds of legal reasonableness, as the delegate could not have formed the requisite state of mind.

3. The Tribunal notes however that merely because the notice might itself contain flawed (or absent) reasoning, it does not necessarily invalidate the notice in circumstances where the delegate has firmly formed the view there has been non-compliance, and stated unequivocally the reason, being that the hotel concerned “does and did not exist”. In the Tribunal’s opinion, the notice does provide information which is alleged to be incorrect and the basis for that conclusion, which the Tribunal then must assess in light of responses provided by the visa holder and all the information available to it.

4. For those reasons, the Tribunal finds that the notice is valid and the delegate had reached the requisite state of mind (rightly or wrongly) for the notice to be issued in accordance with the requirements of section 107.

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

5. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, and in the manner particularised, and if so, whether the visa should be cancelled.

6. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 (b) for providing incorrect answers and s.103 for providing a bogus document (employment reference).

7. The Tribunal notes that it is well-established that when considering non-compliance in the context of an administrative review of a decision by the Minister, the onus of establishing the relevant facts remains with the Minister, and in particular in relation to a cancellation case, the Tribunal must have regard to the nature of the allegations and gravity of the consequences which invariably will have some serious ramifications for the visa holder.

8. The factual finding which was required in accordance with the reasons given in the delegate’s notice was the existence or otherwise of the Hotel. In the Tribunal’s view, the onus was on the Department to show on the available evidence that it was reasonable to conclude the Hotel “does and did not exist”.

   Findings

9. The Tribunal has paid careful regard to all information before it including the information in the Department’s file, and the careful and detailed submissions from the representative, together with the oral evidence provided at hearing, including from one of the previous owners of the hotel at the centre of this application.

10. The Tribunal is satisfied on the responses made by the applicant that the Hotel existed.

11. The Tribunal has had regard to the affidavits of the previous owners, Almas Akram, and Muhammad Ashraf, the former giving oral evidence at the hearing. The Tribunal has no reason to disregard or disbelieve that evidence. The Department’s evidence at its highest is simply “un able to verify”.

12. In the reasons provided by the delegate in the record of decision determining the visa should be cancelled, the delegate acknowledges the Department has information following the integrity checks, that there was a registered business owner in 2014 and that “while this registration occurred in 2014, I acknowledge this does not necessarily mean that the business did not exist prior to this date”. It is clear therefore that even in the delegate’s view there was some doubt as to whether the Hotel had existed in the relevant period (2003-2007), which it was unable to confirm or deny.

13. The applicant’s evidence attached to the recent submission from the representative positively asserts the existence of the Hotel at the relevant time, and leads to a conclusion which the Tribunal finds is reasonable that the Employer’s Certificate as to service by the visa holder was in fact correct.

14. Were there some doubts as to the location of the Hotel, the integrity checks confirmed for the Department that the telephone numbers it had provided were in fact registered in the same location in Pakistan as stated, at Toba Tek Singh, even though those phone numbers were not responded to when called. The Tribunal finds it is reasonable to conclude that those phone numbers may have been attached to premises (being the Hotel) which were also located at Toba Tek Singh.

15. Other than by attempts at telephone communication, there was no site inspection and no confirmation or otherwise of the existence of the building which was the subject of photographs provided by the visa holder. The Department’s Post in Islamabad confirmed it had not made a site visit and was unable to do so. The Tribunal is of the opinion therefore that it was not reasonable for the Department then to conclude on the evidence of only a few attempted telephone communications recently made, that the Hotel “does and did not exist” and to disregard the evidence provided by the applicant himself.

16. The Tribunal notes that the delegate relied on further reasoning to support the cancellation, including the inability of the visa holder to “source income tax statements and telephone bills” and other “credibility concerns”. Those concerns referred also to the applicant’s current sponsor. The Tribunal finds it is not necessary to deal with those concerns given the findings about the existence of the Hotel.

17. The Tribunal is also of the view that it is not surprising that after almost 15 years, and having left the Hotel in 2008, the visa holder has a dearth of financial records and in circumstances where the visa holder stated payments were made to him in cash during the period of his employment. In the Tribunal’s view, the failure to provide supporting documents in light of the other responses made by the visa holder is not of itself sufficient to raise the credibility concerns referred to and relied upon by the Department that the Hotel never existed.

18. The Tribunal finds that it is reasonable to conclude on the available evidence that the visa holder worked at the Hotel for the period stated and that the Employer Certificate that he provided with his application for the 457 visa was not a bogus document.

19. It follows that the applicant did not fail to comply with section 101(b) and that there was no non-compliance by the applicant in the way described in the section 107 notice, and the discretionary power to cancel the applicant’s visa does not then arise.

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

    Alan McMurran
    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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.