Alrasheed (Migration)

[2019] AATA 4465

Alrasheed (Migration) [2019] AATA 4465 (24 September 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yousef Alrasheed

CASE NUMBER:  1833798

DIBP REFERENCE(S):  BCC2018/4116488

MEMBER:Jason Pennell

DATE OF DECISION:  24 September 2019

DATE CORRIGENDUM

SIGNED:28 October 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. The words “Date: 23 September 2019” on covering page one should be replaced by the words “Date: 24 September 2019”.

2. The words “Statement made on 24 September 2018 at 9.59am” on covering page one should be replaced by the words “Statement made on 24 September 2019 at 9.59am”.

3. The words “The applicant appeared before the Tribunal on 23 September 2018 at 10.30am to give evidence and present arguments” in paragraph 3 of page two should be replaced by the words “The applicant appeared before the Tribunal on 23 September 2019 at 10.30am to give evidence and present arguments”.

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yousef Alrasheed

CASE NUMBER:  1833798

DIBP REFERENCE(S):  BCC2018/4116488

MEMBER:Jason Pennell

DATE:23 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 24 September 2018 at 9.59am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – incorrect information – relationship status of applicant – overlapped relationships – not in a mutually exclusive relationship – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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 573 Higher Education Sector visa under s.109(1) of the Migration Act 1958 (the Act).

2.    The delegate cancelled the visa on the basis that the applicant provided incorrect information regarding his relationship status to facilitate the granting of his student visa in breach of s.101(b) of the Act. 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 23 September 2018 at 10.30am to give evidence and present arguments. At the applicant’s request the hearing was conducted by telephone due to the fact that he has departed Australia for Kuwait. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6.    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.

7.    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?

8.    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 of the Act  by reason that the applicant provided incorrect information regarding his relationship status to facilitate the grant of his Student (subclass 573) visa.  

9.    Section 101 states that:

Visa applications to be correct

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

(a)  all questions on it are answered; and

(b)  no incorrect answers are given or provided.

1. Section 99 of the Act provides 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.

2. On 8 April 2015 the applicant and Kawther A H N H Bohamad applied for a Student (Subclass 573) visa via the Department’s online facility.  Ms Bohamad was listed as the primary applicant and the applicant was listed as a dependant, being the spouse/de facto partner of Ms Bohamad.

3. As part of the application, the applicant declared that the information he supplied to the Department in his application was complete, correct and up-to-date in every detail.

4. Based on the information provided by the applicant and Ms Bohamad, they were granted a Student subclass 573) visa on 6 May 2015.

5. On 26 July 2018, the applicant arrived in Perth airport traveling with Valeriya H Pakhteyeva with two minors, Hamed Y Aldakheel (DOB: 29 October 2009) and Amira Y Alrasheed (DOB: 5 November 2017). During an interview with border officials the applicant stated that he was the de facto partner of Ms Pakhteyeva and that they had been in a relationship for a period of six years.

6. On 9 December 2017 Ms Pakhteyeva applied for tourist visa subclass 600) visa via the Departments online facility. In the application, Ms Pakhteyeva confirmed that she was traveling with the applicant, Hamed Y Aldakheel and Amira Y Alrasheed and that the applicant was her de-facto partner.

7. The department cancelled the applicant’s visa on the basis that the applicant had provided incorrect information regarding his relationship status in order to facilitate the grant of his Student (subclass 573) visa. That is, on 26 July 2018, the applicant claimed that he had been in de facto relationship with Ms Pakhteyeva for a period of 6 years, being a time period which includes his application for his Student (subclass 573) visa dated 8 April 2015, in which he claimed to have been in a relationship with Ms Bohamad.

8. Section 5F of the Migration Act provides that:

   Spouse

   (1)  For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

   (2)  For the purposes of subsection (1), persons are in a married relationship if:

   (a)     they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)     they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

   (c)     the relationship between them is genuine and continuing; and

   (d)     they:

   (i)  live together; or

(ii)  do not live separately and apart on a permanent basis.

1. The fact that the applicant’s relationship with Ms Pakhteyeva overlaps with his relationship with Ms Bohamad, the applicant appears not to have had with Ms Bohamad a mutual commitment to a shared life as a husband and wife to the exclusion of all others with Ms Bohamad.

2. The Department provided the applicant with a Notice of Intention to Consider Cancellation under s.109 of the Act dated 22 October 2018 (NOICC). On 5 November 2018[1] the applicant provided the following information in response to the NOICC

   (a)The applicant claimed that he was married to Ms Bohmad prior to his first entry into Australia until April 2018. He claimed that they had a daughter, Mariam Alrasheed, born in Australia on 11 October 2016.

   (b)The applicant claims that he and Ms Bohamad returned to Kuwait from November 2016 to July 2017, while she deferred her studies in order for their families to help raise their newborn child.

   (c)The applicant claims that while in Kuwait, he and Ms Pakhteyeva conceied a child together in February 2017 and Amira Y Alrasheed was born on 5 November 2017. The applicant claims that he has known Ms Pakhteyeva since 2012 due to studying together, however, claims that they only became romantically involved in 2017.

   (d)The applicant claims that once Ms Bohamad discovered that the applicant had a child with Ms Pakhteyeva she requested a divorce. The applicant now claims that his relationship with Ms Pakhteyeva has also ceased due to his family blaming her for his separation from Ms Bohamad.    

   [1]    Email dated 5 November 2018 Department File BCC2018/4116488 @ f.51.

3. The applicant has provided the following documents:

   (a)Certificate of Revocable Divorce from Ms Bohamad dated 19 April 2018.[2]

   (b)Evidence of Islamic Marriage between the applicant and Ms Pakhteyeva dated 25 January 2017.[3]

   (c)Letter from The Royal Women’s Hospital dated 27 August 2019 in relation to Ms Mamoona Batool.[4]

   (d)Birth Certificate of Maraim Alrasheed dated 11 October 2016[5]

   (e)Child Birth Notice. [6]  The Child Birth Notice provided by the applicant to the Tribunal prior to the hearing was illegible and unable to be read by the Tribunal.

   [2] Department File BCC2018/4116488 @ f. 49

   [3] AAT file No 1833798 @f.25

   [4] AAT file No 1833798 @f.26

   [5] AAT file No 1833798 @f.7

   [6] AAT file No 1833798 @f.30

4. The Tribunal acknowledges that the applicant claims that he was married to Ms Bohamad prior to his entry into Australia on 4 February 2014 and that they had a child together,  Maraim Alrasheed born on 11 October 2016. The applicant claims that he was divorced from Ms Bohamad on 19 April 2018.[7] The Tribunal accepts that Maraim Alrasheed is the applicants daughter and that he and Ms Bohamad are now divorced.

   [7]    Valid Certificate of Revocable Divorce dated 19 April 2018; Department File BCC2018/4116488 @ f. 49

5. The Tribunal acknowledges the applicant’s claim that he had known Ms Pakhteyeva since 2012, while studying together, but they only became romantically involved in Kuwait in or about November 2016. He claims that their child was conceived in February 2017 and born 5 November 2017. Nevertheless, despite his claim to the Tribunal that he had been in a relationship with Ms Pakhteyeva for only a short time, at his interview with border officials he stated that he had been in a relationship with Ms Pakhteyeva for a period of six years.

6. The Departmental records show that Ms Pakhteyeva travelled to Australia on two tourist visas. Her tourist visa application lodged on 23 June 2016 lists the applicant as the contact in Australia who she intended to visit. In addition her second tourist visa application lodged on 9 December 2017 lists the applicant as her spouse or de facto partner, despite the applicant not having been divorced from Ms Bohamad until April 2018.  The fact that Ms Pakhteyeva indicates that she was to visit the applicant on her visa application dated 23 June 2016 indicates that they were in a relationship prior to November 2016 as claimed by the applicant. In circumstances were the applicant had only divorced Ms Bohamad in April 2018, there appears to be no reason for him to have claimed that he had been in relationship with Ms Pakhteyeva for a period of six years. As a result the Tribunal finds that the applicant’s relationship with Ms Pakhteyeva overlapped with his relationship with Ms Bohamad. Accrodingly it finds that he did not have a commitment to a shared life as a husband and wife to the exclusion of all others with Ms Bohamad.

7. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

1. 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).

2. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances.[8]  The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

   [8] s.109(1)(b) and (c) of the Act

·        the correct information

·        the content of the genuine document (if any)

·        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

·        the circumstances in which the non-compliance occurred

·        the present circumstances of the visa holder

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

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

·        the time that has elapsed since the non-compliance

·        any breaches of the law since the non-compliance and the seriousness of those breaches

·        any contribution made by the holder to the community.

1. While these factors 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.[9] The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

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

2. In his email dated 5 November 2018, the applicant claimed that he had advised the border official’s during his interview that Ms Bohamad and his daughter reside in Australia and that he had consulted an immigration officer who had advised him that his separation from the primary visa holder would not affect his visa.

Correct Information.

1. The applicant claimed to be in a spousal relationship with Ms Bohamad, the primary applicant of a Student visa, when lodging a combined application on 8 April 2015. The definition of souse pursuant to s.5F of the Act includes that a couple should have a mutual commitment to share life as husband and wife to the exclusion of all others. When this was put to the applicant during the course of the hearing the applicant said that this was not the law in Kuawait.

2. The correct information is that the applicant claimed that he had been in a relationship with Ms Pakhteyeva for six years when interviewed by immigration officers on 26 July 2018, indicating that he did not meet the definition of a spouse at the time of his student (subclass573) visa application.

3. Accordingly the Tribunal places no weight in favour of the applicant in regard this matter.

Content of Genuine Document.

1. The Tribunal notes that the applicants evidence of Islamic Marriage to Ms Pakhteyeva is dated prior to the Certificate of Revocable Divorce from Ms Bohamad. Therefore, it appears that the applicant married Ms Pakhteyeva prior to his divorce from Ms Bohamad, indicating that he was not in a spousal relationship with Ms Bohamad as claimed in his application.

2. Accordingly, the Tribunal places little weight on the documents in favour of the applicant.

The decision to grant a visa based, wholly or partly, on incorrect information.

1. The tribunal has found that the applicant provide incorrect information in his application for a student visa. Had the department been aware that the applicant was not in a mutually exclusive relationship with Ms Bohamad, the applicant may not have been granted the visa.

2. As the decision to grant the visa was based on incorrect information, the Tribunal gives this consideration no weight in the applicant’s favour.

Circumstances in which the non-compliance occurred

1. The non-compliance occurred as a result of the applicant proving incorrect information as to his relationship status in his application for a student visa.

2. The applicant claims that he was married to Ms Bohamad as the primary student visa holder prior to his entry into Australia on 4 February 2014 and that they had a child on 11 October 2016. The Tribunal acknowledges the applicant’s claim that he knew Ms Pakhteyeva since 2012 and he was not romantically involved with her until November 2016. However, when interviewed by border officials on 26 July 2018 the applicant admitted that he had been in a relationship with Ms Pakhteyeva for a period of six years. The Tribunal notes that Ms Pakhteyeva tourist visa dated 23 June 2016 refers to the applicant as her contact in Australia. In circumstances where the applicant had been married to Ms Bohamad and had a child with her, there appears to be no logical reason why he would have claimed to have been in a relationship with Ms Pakhteyeva for a period of six years. The applicant was not able to provide the Tribunal with any logical explanation as why he claimed to be in a relationship with Ms Pakhteyeva for six years rather than from November 2016.

3. Accordingly the Tribunal does not give the applicant any weight in his favour in relation to this matter.

The present circumstances of the visa holder

1. The applicant’s evidence at the hearing was that he was currently residing in Kuwait. In response to the NOICC the applicant stated that he was divorced from Ms Bohamad and provided a copy of the divorce certificate dated 18 April 2018. He also stated that he was no longer in a relationship with Ms Pakhteyeva.

2. According to the departments records, on 6 November 2018 the applicant lodged a Student (subclass 500) dependant visa application in which he claims to be the spouse of Ms Mamoona Batool.   At the hearing, the applicant confirmed he had made the application and that he had been in a relationship with Ms Batool. In addition the applicant provided a copy of the Islamic Nikah certificate, indicating marriage under Sharia Law occurring on 1 May 2018 which was renewed on 28 September 2018. A Human Chronic Gonadotrophin (HCG) test dated 1 June 2018 indicated that the Ms Batool was pregnant at the time of the test.

3. The delegate’s decision refers to a telephone interview with Ms Batool on 8 November 2018 in which she indicated that her relationship with the applicant commenced in April 2018 and that they meet while she was working for him in a kiosk in Broadmeadows, Victoria. She claimed that she had married the applicant in a religious ceremony in May 2018 and that she had miscarried and that she was no longer expecting a child at that time.

4. The Tribunal notes that if the applicant was the father of Ms Batool unborn child, given that he claimed to be in a relationship with Ms Pakhteyeva at his border interview on 26 Jul 2018, his marriage to Ms Batool under Sharia law and her being pregnant as at 1 June 2018 would indicate an overlap of relationships.

5. The applicant indicated that he had been living with Ms Batool in Australia. However, the Movement records indicate that the applicant departed Australia on 13 February 2019. There is no evidence that the applicant holds a current visa to be able to return to Australia.

1. The applicant completed a diploma of management at Tasmanian Polytechnic in 2011 and obtained a bachelor of Business and a Master of Business management from Victrola University. The applicant did not provide any evidence in relation to his current employment only to state that he was residing in Kuwait.  Accordingly, in the absence of any evidence to the contrary, the Tribunal finds that the applicant will not be adversely affected finically as a result of his visa being cancelled.

2. Finally the applicant has two children Mariam Alrasheed, born to Ms Bohamad and Amira Y Alrasheed born to Ms Pakhteyeva. The applicant provided limit evidence in relation to the custody and care of his children but indicated that one of his daughters was living in Kuwait and the other was in Australia with her mother. He did not indicate which of his daughters was living in Australia or Kuwait.   

3. Accordingly, the Tribunal gives little weight to the applicant in relation to this matter.

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

1. The applicant claims that non-compliance did not occur as he commenced his relationship with Ms Pakhteyeva after the lodgement of his student visa.

2. However, the Tribunal notes that the applicant advised the border official’s on 26 July 2018 that he had been in a spousal relationship with Ms Pakhteyeva for six years, which demonstrates his non-compliance. Having considered the applicant’s evidence, for the reasons expressed in these reasons for decision, the Tribunal is not satisfied that he was in a spousal relationship as defined by s.5F of the Act with Ms Bohamad for the purposes of being granted his student visa.

3. As a result the Tribunal does not give the applicant any weight in his favour in relation to this matter.  

The time that has elapsed since the non-compliance

1. The applicant lodged his student visa application on 8 April 2015. While the tribunal accepts that the non-compliance occurred some time ago, it considers that the applicant has gained access to Australia due to providing incorrect information to facilitate the grant of the student visa.

2. Accordingly. The Tribunal does not give any weight in favour of the applicant in relation to this matter.

Any breaches of the law since the non-compliance

1. The tribunal is not aware of any breach of the la by the applicant since the non-compliance. As such, the Tribunal gives the applicant some weight in his favour in relation to this matter.

Any contribution made by the holder to the community

1. The applicant has not provided any evidence of any contribution made by him to the community. Accordingly the Tribunal does not give the applicant any weight in regards to this matter.

Any consequential cancellations under s.140

1. The applicant holds a student visa as a dependant and there is no information before the tribunal to suggest that any other person would or may be consequential cancelled in the event that the applicant’s visa is cancelled.

2. Accordingly the tribunal does not place any weight on this matter in the applicant’s favour.

Any international obligations would be breached as a result of the cancellation

1. The applicant has not been found to be a refugee under the Convention and Protocol Relating to the Status of Refugees. Therefore, Australia has no non-refoulement obligations to the applicant.

2. Australia is a signatory to the Convention on the Rights of the Child (CROC) and the International covenant on Civil and Political Rights (ICCPR). 

3. The applicant has two children, Mariam Alrasheed, born to Ms Bohamad and Amira Y Alrasheed born to Ms Pakhteyeva. The Departmental information indicates that both children are citizens of Kuwait. The applicant’s evidence to the Tribunal was that at least one of his daughters was living in Kuwait. The applicant indicated that the other was living with her mother in Australia. In circumstances where the applicant has returned to Kuwait and it appears both Ms Pakhteyeva and Ms Bohamad appear to move freely between Australia and Kuwait, the tribunal finds that cancellation of the applicant’s visa will not necessarily result in the segregation of the his daughters for their primary carers. As a result the tribunal finds that cancellation of the applicant’s visa will not adversely impact the applicant’s children and as a result will not be a breach of the CROC.

4. Accordingly the Tribunal does not give any weight to this matter in favour of the applicant.

Mandatory Consequences to cancelation decision.

1. The applicant is currently residing in Kuwait. As such in the event that the visa is cancelled the applicant would not be an unlawful citizen and would not be subjected to immigration detention and removal for Australia.

2. Nevertheless, if the visa is cancelled the applicant may be subjected to s48 of the Act and have limited options to apply for further visas in Australia and to the provisions of the Public Interest Criterion 4013, which would prevent him for being granted certin visas for a period of three years for the date of the visa cancellation.

3. These are shared consequences of a visa cancellation outcome and as such the tribunal gives no weight to these matters in the applicants favour.

4. 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa applications to be correct

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

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

7. Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)      giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (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.

8. Decision 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.

9. Cancellation 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.