Amandeep Singh (Migration)

[2023] AATA 3774

Amandeep Singh (Migration) [2023] AATA 3774 (4 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh

REPRESENTATIVE:  Mrs Wendy Mary Anne Maitland

CASE NUMBER:  2215182

HOME AFFAIRS REFERENCE(S):          BCC2022/1639917

MEMBER:David McCulloch

DATE:4 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 October 2023 at 1:55pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – dependent spouse – incorrect answers provided in previous and current applications – previous visa refusals for third country not declared – discretion to cancel visa – ground conceded – non-compliance inadvertent – correct answers provided to agent – first application not sent to applicant for checking – second application checked by wife, who thought question related only to her – visa refusal for fourth country declared – compliant travel to multiple countries – visas for third and fifth countries now granted – applicant’s work and care for young child, with current second pregnancy – wife’s study and work plans – hardship if visa cancelled – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 107A, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Singh (Migration) [2022] AATA 2745

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 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The visa that was cancelled was granted on 8 February 2022 with a stay period to 17 November 2023.

3. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in a visa application, breaching 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.

4. The applicant appeared before the Tribunal on 29 September 2023 at 9.30am to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Ms Kamalpreet Kour. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, but the applicant and the witness elected to communicate in English.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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.

9. 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?

10. 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). The s 107 notice advised relevantly as follows:

    Evidence of non-compliance:

    2020 Student visa application
    On 19 February 2020, you lodged a Student visa application as a subsequent dependent of your spouse, Kamalpreet KOUR ([DOB]). Ms KOUR had been granted her Student visa on 16 January 2020.

    On pages 9 and 10 of the application form for your Student visa (lodged on 19 February 2020), under the heading, ‘Visa history’, the form asked, ‘Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?’. You answered, ‘No’.

    Based on the above answers, and meeting all the other relevant criteria, you were granted the Student visa on 13 July 2020.

    2021 Student visa application
    On 29 December 2021, you were included as a dependent applicant on a Student visa application lodged by your spouse, Ms KOUR.

    On pages 16 and 17 of the application form, under the heading, ‘Visa history’, the form asked, ‘Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?’. You answered, ‘No’.

    Based on the above answers, and meeting all the other relevant criteria, you were granted the Student visa on 08 February 2022.

    Subsequent information received by the Department

    On 23 April 2022, you departed from Australia via Brisbane International Airport. During border clearance activities on departure, you were asked by Australian Border Force (ABF) Officers to provide your biometrics. These biometrics included a photograph of your face and fingerprints. You consented and were photographed and fingerprinted. Integrity checks conducted on your biometrics following your departure, revealed that on 16 May 2019 and 30 September 2019, you were refused visas for Canada, under the identity Amandeep SINGH ([DOB]). Your visa applications were refused because the Canadian authorities were not satisfied that you intended to stay temporarily in Canada.

    On 11 June 2022, you arrived at Brisbane International Airport and were spoken to by an ABF Officer with regards to the fact that the Department had information that you had been refused visas to Canada.

    You confirmed that you had been previously refused a visa for Canada. You stated to the officer that this information had not been declared in your Student visa application because you used an agent.

    Based on the above information, it appears that you have provided incorrect answers in the applications for your previous Student visa (lodged on 19 February 2020) and your current Student visa (lodged on 29 December 2021), regarding your immigration history.

    Non-compliance with Subdivision C of the Act

    The non-compliance with s101(b)

    I consider that you may not have complied with s101(b) of the Act because:

    ·On 19 February 2020, you lodged a Student visa application. On pages 9 and 10 of the application form, under the heading, ‘Visa history’, the form asked, ‘Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?’. You answered, ‘No’ I consider this answer to be incorrect because integrity checks conducted by the ABF on your biometric data, revealed that on 16 May 2019 and 30 September 2019, you had two Canadian visa applications refused. Furthermore, when you arrived at Brisbane Airport on 11 June 2022 you spoke with an ABF Officer and admitted that you had previously had a visa application for Canada refused and that it had not been declared on your Student visa application because you had used an agent.

    ·On 29 December 2021, lodged a new Student visa application. On pages 16 and 17 of the application form, under the heading, ‘Visa history’, the form asked, ‘Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?’. You answered, ‘No’. I consider this answer to be incorrect because integrity checks conducted by the ABF on your biometric data revealed that on 16 May 2019 and 30 September 2019, you had two Canadian visa applications refused. Furthermore, when you arrived at Brisbane Airport on 11 June 2022 you spoke with an ABF Officer and admitted that you had previously had a visa application for Canada refused and that it had not been declared on your Student visa application because you had used an agent.

    I consider that you provided incorrect information in your visa application in an attempt to hide your previous adverse immigration history in order to facilitate the grant of your Student visas.

    Conclusion

    It appears you have not complied with s101(b) of the Act. If you did not comply with s101(b) of the Act in relation to your previous or current Student visa applications, by virtue of s107A, your current Student visa may be cancelled under s109 of the Act.

11. The applicant was notified of and invited to comment on the intention to consider the cancellation of their student visa on 12 September 2022. The applicant provided a response on 23 September 2022 and 24 September 2022.

12. The applicant provided the following statutory declaration dated 21 September 2022 in response to the Notice of Intention to Consider Cancellation (NOICC) (not corrected for spelling or grammar, headings and footings omitted):

    I, Amdeep Singh working as a security guard with Australian Employer residing at [Address] make the following declaration under Statutory Declarations Act 1959:

    That, I have been living in Australia since 2020 as a dependent visa and have not breached any condition of my visas.

    That when I applied my visa to Australia in 2018, I have disclosed the refusal of UK because at that time I don’t have any refusal of Canada.

    That I have disclosed my Canada refusal while applying student visa subsequent visa to my agent, but I do not know why he did not disclose it to immigration, and I also confirm that he did not send me my application after drafting it and before lodging it.

    In visa extension Dec 2021, my agent sends me Draft but due to misunderstanding of the question my wife confirmed to file the application. She thought that the relevant question is related to her only.

    That I confirm whenever I fill my application, I have always given the information to Immigration be it Australia or other country immigration That I have got the visa of Canada too in 2022 for which the question is in issue.

    That I cannot live without my family please forgive me I am extremely sorry but I have not done this mistake intentional please I request you not to cancel my visa. I will be taking care all this from next time more carefully. I have been under stress I have already learnt a lesson please this is a request I have not gained any unlawful gain by hiding the truth.

    That I have disclosed to the officer at Airport in first attemo without even trying once to hide it because I have no idea that it is not disclosed in my application.

    That I know I cannot blame anyone for this. Please I accept that this is a mistake, but I also request this is not my intention to hide anything from immigration. I am very remorseful and promise that will take care of my file myself and always check application myslef before lodging. Please donot make me force to live apart from my son and wife.

    That I have gone to many countries more than 6 and never done anything wrong and never commit any crime I am very law-abiding person always speak truth please don’t give me punishment for soemthing which I have not done intentionally.

    That my wife and already completed her 2/3^rd course we will be going back after her studies. Please allow me to live together. Otherwise, it will be very hard for us to continue the study.

13. In addition to the statutory declaration, the applicant submitted the following documents to the Department, as summarised by the delegate in their Decision Record:

    • A signed Form 956, dated 12 September 2022, appointing the visa holder’s migration agent, Nitesh Kumar Marwaha
    • A copy of the NOICC issued on 12 September 2022
    • A document titled ‘Index Attachments’ which listed the attachments to the visa holder’s email response
    • A statement responding to the NOICC, dated 22 September 2022 from Nitesh Kumar Marwaha
    • A copy of the visa holder’s visa application form for a Visitor (Subclass 600) visa for
    • Australia) dated 11 December 2018
    • A copy of the visa holder’s application form for a Canadian visitor visa, dated 2 April 2022
    • A document titled ‘Latest Travel History’ showing the visa holder’s international travel, with a paragraph stating that the visa holder is a law abiding person and that ‘This history shows that Applicant is very law abiding and honest person and with this much immigration history there are very minimum chances that his visa got rejected on GTE. we request you to consider the applicant immigration history and not to cancel the visa’
    • A copy of a Canadian visitor visa in the visa holder’s name with an issued date of 28 May 2022
    • A copy of an application form in the visa holder’s name for a United Kingdom (UK) tourist visa. The form is undated, however, has the reference number GWF049398431
    • A Certificate III in Commercial Cookery from Spencer College in the visa holder’s name, with certificate #04383 and issue date of 08 August 2022
    • A statutory declaration from the visa holder’s spouse, Ms Kour, dated 21 September 2022
    • A letter of employment for the visa holder’s spouse, Ms Kour from the Coffee Club in Stocklands, Rockhampton dated 9 August 2022
    • A character reference letter from the company Security Shield in support of the visa holder, dated 20 September 2022
    • A copy of the biodata page and back page of Indian passport (document [number]

    ) for Shahaan Singh ([DOB]), that listed the visa holder as the father of Shahaan Singh

    • A copy of a Singapore tax document in the visa holder’s name, dated 1 October 2019
    • A copy of an Australian tax return in the visa holder’s name for the financial year that ended 30 June 2021
    • A copy of a United States of America (USA) visa in the visa holder’s name with an issue date of 13 September 2019
    • A copy of a Queensland traffic record in the visa holder’s name, for the period between 13 July 2017 to 13 July 2022
    • A copy of Indian passport (document [number]) issued to the visa holder, including visa pages that contained evidence of the visa holder’s previous travel
    • A document titled ‘Relevant Case Law Singh (Migration) [2022] AATA 2745 (4 August 2022)’ regarding a previous Administrative Appeals Tribunal (AAT) decision
    • A document titled ‘Singh (Migration) [2022] AATA 2745 (4 August 2022)’ which appears to be an AAT Decision Record regarding a previous case (number 2202934)

14. Also provided to the Department was a submission on behalf of the applicant. It is conceded that incorrect information was provided in the two visa applications indicated by the delegate, although this was inadvertent and the information was provided by a third party. It is conceded that under the provisions of the Act s 101(b) of the Act remains breached.

15. The submission makes detailed representations as to why the Tribunal should not exercise its discretion to cancel the visa. Relevant submissions are detailed later in this decision.

16. Provided to the Tribunal were additional submissions, statements by the applicant and the applicant’s wife, Ms Kour and supporting documents. The submission concedes that the ground of cancellation is made out due to the fact legislative provisions take it that the applicant filled out the application even if it was done by someone else. In the hearing, the applicant accepted that incorrect information had been provided as outlined by the delegate.

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

    Should the visa be cancelled?

18. 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).

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

    ·     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.

20. 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: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural 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.

21. The various submissions, statements and other documents provided to the Department in response to the NOICC are relevant and make arguments in respect of various discretionary factors that the Tribunal should consider in not exercising its discretion to cancel the visa.

22. The evidence and submissions indicate that the two key claimed factors the Tribunal needs to consider are the circumstances in which the ground for cancellation occurred and the hardship that would be suffered to the applicant and his family if the visa remains cancelled.

23. The statements by the applicant and the submissions indicate the following in relation to the circumstances in which the ground for cancellation occurred. The applicant indicates that the visa granted in February 2020 was lodged by an agent. The applicant indicates that he told the agent about the refusal of his visa to Canada but for reasons he does not know this was not included in the application. The agent submitted the application without providing a copy for checking to the applicant in advance. The applicant indicates that the information in this application was copied and pasted in the student visa application lodged with his wife as the primary applicant in December 2021. The applicant indicated that it was his wife who checked this application and did not notice the incorrect information declaring that the applicant had not been refused a prior visa.

24. The applicant indicates that the omission in the two applications were entirely inadvertent. The applicant indicates that his integrity in being truthful is demonstrated by the fact that in 2018 when he applied for a visitor visa to enter Australia he declared that he had been refused a visa to the United Kingdom. The applicant also indicates that his integrity is further confirmed by the fact that in an application for a Canadian Visitor visa lodged on 2 April 2022 the applicant referred to a refusal of a previous Visitor visa application. The applicant has provided evidence of both visa applications making such a declaration.

1. The applicant provides evidence of recent travels to seven different countries and never having issues in terms of overstaying or breaching visa conditions. This again is said to demonstrate honesty by the applicant with respect to immigration requirements.

2. The Tribunal considers the submissions made in relation to hardship. Prior to the applicant applying for the December 2020 visa he was working in Singapore in a white-collar job. The applicant’s wife was studying in Australia and asked the applicant to come to Australia to support her in her studies. The applicant was determined to do so. The applicant is working out of his field in blue-collar jobs in Australia at the petrol station and in security to support his wife and child. He is doing this because he wants to be in Australia with his family and to provide financial support for his wife’s endeavours.  He works nights and looks after the couple’s child during the day.

3. The submissions and statements made to the Tribunal indicate that the applicant and his wife are expecting their second child. He is currently working part-time as a security guard which dovetails with his wife’s study commitments and the applicant’s parenting responsibilities. The applicant has a number of testimonials from employers as to the applicant’s positive work performance and good character.

4. The applicant’s wife has in Australia completed a Diploma of Business and a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality Management. She indicates in her statement dated 21 August 2023 that she continues to study full-time. She indicates that she is again pregnant. She indicates that if her husband’s visa is cancelled she would be left alone with two small children or she would have to give up her dreams of gaining qualifications in Australia in order to be a successful businesswoman to help her family financially. It is indicated that the applicant’s wife wishes to open a restaurant in India.

5. The written submission in response to the NOICC indicates that the study of the applicant’s wife in Australia has cost the family $25,000-$30,000 and two years of work and that this will be wasted if the applicant has to leave the country.

6. It is indicated that if the visa remains cancelled there will be two potential outcomes each of which constitutes a significant hardship. In one scenario the applicant will leave the country with the couples’ child given the inability of the applicant’s wife to care for the child without the support of the applicant. This will create hardship for all parties in the relationship in terms of being separated from each other including the separation of the child from its mother. The other scenario is that the applicant’s wife will leave the country with her husband thus diminishing her goals in Australia creating a hardship for her.

7. It is submitted that a hardship if the visa remains cancelled would be limitations on the applicant’s ability to apply for subsequent Australian visas. It is also submitted that the cancellation may create hurdles in terms of seeking visas in other countries. It is also indicated that the cancellation may impact upon any desire the applicant and his wife may have to seek to gain a permanent visa to stay in Australia.

8. In the hearing, the applicant’s wife reiterated that they are not certain what will happen if the applicant’s visa remains cancelled. She indicated the very significant difficulties for her in raising a child and expected child in Australia alone. She confirmed that she has just completed a Diploma of Hospitality Management and is in the process of obtaining the necessary skills to be eligible for a temporary skilled visa. She indicated that her desire is to apply for and stay in Australia on a temporary visa before returning to India to pursue a career there.

9. The applicant in the hearing indicated that if the Tribunal makes a decision to reinstate the visa he will remain in Australia to support his wife. He indicated that although he is an IT professional he is not able to find jobs in this sector in Australia but is happy to work outside his area of expertise for the sake of supporting his wife and children.

10. Written submissions are made with respect to the discretionary issue of whether the decision to grant the visa was based, wholly or partly, on the incorrect information. It is submitted that the substantial immigration history of the applicant including in multiple other countries would readily establish substantial compliance by the applicant of immigration requirements which likely would have satisfied the decision makers in terms of the genuine temporary entrant requirement even if there had been the proper disclosure of the prior refusal.

11. It is submitted that there are no other instances of non-compliance of immigration of visa requirements by the applicant nor breaches of law by the applicant. The applicant provides statements indicating he has no convictions in any country or other charges being laid against him.  Provided is a National Digital Police Certificate dated 27 September 2023 indicating the applicant has no disclosable court outcomes in Australia.

12. In terms of contribution to the community, is submitted that the applicant is working and paying taxes and that his wife is making contributions in the hospitality sector. Submissions are made that the applicant is undertaking voluntary and unpaid service to the ‘Chaplain Watch’ service in Rockhampton and a supporting testimonial has been provided from the organisation.

13. These are the key relevant discretionary factors in the Tribunal’s view.

14. The Tribunal is satisfied based on all the evidence including detailed statements by the applicant and applicant’s wife that the applicant has had the intention to be truthful in interactions with the Department relating to visas.  The Tribunal is persuaded that the omission of the Canadian visa refusals in the applications was inadvertent. The prior examples of the applicant disclosing visa refusals in visa applications to Australia and Canada demonstrate integrity by the applicant in making appropriate disclosures. The Tribunal is satisfied that the incorrect answers were inadvertent in this case when, unlike previous applications, a migration agent was involved. The Tribunal also finds it plausible in relation to the second visa application that the primary applicant, the applicant’s wife, was the person who checked the application and mistook that the question in relation to visa refusals included the situation of the applicant.

15. The Tribunal also considers in light of the extensive travel history of the applicant that although a prior refusal would have been a relevant factor in the determination of the application it may not have been an overriding factor in causing the application to be refused.

16. The Tribunal considers that there would be quite significant hardship to the applicant, his wife and the children in the family unit if the visa remains cancelled. The Tribunal considers it most likely that if the visa remains cancelled that the applicant’s wife would not be able to remain in Australia on a temporary skilled visa given the difficulties she would face in working and raising her child and expected child. This would be a significant hardship to the applicant’s wife and the family unit. The Tribunal also considers that there would be significant hardship to the applicant in terms of possible difficulties in international travel, including for work, that might arise if the applicant has on his record a cancelled student visa in Australia.

17. In the circumstances of the Tribunal accepting that the incorrect information was inadvertent and the significant hardship that the applicant and the family unit would suffer if the visa remains cancelled, and there being no other adverse discretionary factors, the Tribunal is readily persuaded that it should not exercise its discretion to cancel the visa.

18. 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 not be cancelled.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    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.