Cleary (Migration)

[2021] AATA 5452

Cleary (Migration) [2021] AATA 5452 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Cleary

CASE NUMBER:  2112576

HOME AFFAIRS REFERENCE(S):          BCC2020/2706155

MEMBER:Alan McMurran

DATE:7 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 07 December 2021 at 4:24pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – there was non-compliance in the way described in the notice – applicant had provided false information –applicant didn’t complete 6 months’ regional work – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 99, 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 17 September 2021 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on 17 September 2021 on the basis that the applicant did not comply with s.101(b) of the Act, by providing incorrect information in relation to a Subclass 417 Working Holiday (extension) visa . 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 6 December 2021 to give evidence and present arguments. The applicant was unrepresented. The hearing was conducted virtually by MS Teams video, in accordance with the Tribunal’s COVID-19 Practice Direction and protocol, and to assist the Tribunal to meet its statutory objective of providing a mechanism of review which is fair, just, economical, informal, and quick. The applicant indicated that he did not object to the format for the hearing to proceed virtually, and when asked, did not seek an adjournment. The applicant appeared from his home in Perth, with the Member sitting in Sydney.

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. Consideration of cancellation follows once a valid notice exists. In particular, s.109 provides:

   109        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.

8. S. 109(2) provides that 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. Currently, there are no prescribed circumstances declared by the Regulations to be circumstances in which a visa must be cancelled.

9. There are, however, 10 prescribed circumstances[1] which apply in considering cancellation under s.109, and which must be considered, and which are set out below.

   [1] r.2.41

10. 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.

11. The Tribunal has available for consideration the Department’s file[2], the s.107 notice of intention to consider cancellation (NOICC), the s.109 notice of cancellation, the applicant’s visa history and movement record, and the Tribunal’s file. The Tribunal has also received the applicant’s submission, being a letter from Liam O’Connor of  O’Connor Contracting Pty Ltd dated 26 November 2021.

    [2] BCC2020/2706155

    Was there non-compliance as described in the s.107 notice (“the notice”)?

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

13. The non-compliance identified and particularised in the notice was non-compliance with s.101(b) of the Act, in the following respects:

    a.On 15 October 2020 the applicant applied for a Working Holiday (Extension) (subclass 417) visa via the Department’s online facility (the visa application).

    b.In response to the question ‘They have carried out at least six months of specified work’ the applicant answered ‘Yes’.

    c.In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’ the applicant answered ‘Yes’.

    d.Under the heading ‘Details of specified work undertaken’, the applicant provided the following answers (in part):

    Employer Details
    Legal registered name: Quenby Viticultural Services
    Trading name: Quenby Viticultural Services

    Australian Business Number (ABN): 49457432242

    Employer business address
    Address: Quenby Viticultural Services
    Suburb / Town: Mount Barker
    State / Territory Western Australia
    Postcode: 6324
    Work address
    Business name at this location: Jindawarra Vineyard
    Address: 13057 Bussel Highway
    Suburb / Town: Margaret River
    State / Territory: Western Australia
    Postcode 6285
    Work conditions
    Employment type: Direct employment
    Industry type: Agriculture, forestry and fishing
    Industry type sub-group: Plant and animal cultivation
    Description of duties Horticulture - Vineyard. Pruning vines in
    order to prepare for next growth season
    for commercial selling.
    Date from: 02 Mar 2020
    Date to: 23 Aug 2020

    Total days worked: 190

    The notice also states that the applicant further declared in the visa application, in response to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’, the applicant answered ‘Yes’.

14. The notice further asserts that based on the information in the notice extracted above, as well as meeting other relevant criteria for the visa application, the applicant was granted a Working Holiday (Extension) visa on 15 October 2020.

15. The information from the Department file shows that it conducted employment verification checks with the registered business, Viticultural Services Unit Trust, to verify the employment claims. On 12 November 2020, the employer contacted the Department and advised that the applicant had never worked at the business as asserted from 2 March 2020 to 23 August 2020, being a total of 190 days.

16. The above information was particularised in the notice which was sent by email to the applicant to the two email addresses provided by him and by registered post to his provided postal address, on 9 August 2021. The applicant confirmed at hearing that he had received the notice.

17. The applicant was invited to respond in writing to the Department within 14 days. The notice had set out the relevant law[3] applicable for cancellation decisions and the matters open for consideration, as required by the Regulations. The applicant made no response. The Tribunal asked the applicant why he had made no response to the notice, and he said he believed at the time that notwithstanding the notice had been issued, that cancellation still “might not happen”.

    [3] ss.98-101 of the Act

18. The Tribunal has considered the notice and the contents and the requirements of section 107. The Tribunal is satisfied that the notice contains the particulars of the possible non-compliance, states the period within which the applicant might respond in writing to dispute the notice, or gives reasons for the non-compliance and shows cause why the visa should not be cancelled, that the Minister will consider cancelling the visa at the end of the period of given notice, sets out the effect of the relevant sections in the Act, and informs the applicant of his obligations to provide in writing any changes in circumstances, including any answer which is incorrect in the visa application, and to ensure that any answers given in response to the notice are correct.

19. The Tribunal finds it is satisfied on this information that the Department issued a valid s.107 notice setting out details of the applicant’s non-compliance, and that there was non-compliance in the way described in the notice.

    All Should the visa be cancelled?

20. 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).

21. 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 r.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.

22. 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.

23. At the hearing, the Tribunal discussed with the applicant the prescribed circumstances. The applicant was unassisted at the hearing and had declined any adjournment. The Tribunal found that the applicant was generally non-responsive in answer to the Tribunal’s questions and did not engage with the Tribunal in providing detailed and particular information when provided the opportunity to do so. This may well have been due to concern or anxiety on the applicant’s part over the hearing process. The Tribunal asked several times for reassurance from the applicant that he understood the process, which he confirmed, and did not seek any adjournment or extension of time to obtain advice.

24. The applicant explained his background summarised as follows. The applicant is a 23-year-old citizen of the Irish Republic and had identified himself both at the hearing and by production of his passport to the Department. The Tribunal accepted his identity and asked for information about his family and travel history. The applicant said he had finished school in Ireland at age 17. He said he was living with his mother, who is a butcher in Innes, County Clare, and his younger brother who is still at school. He said he had worked for approximately 2 ½ years in Ireland as a tyre fitter. He said he had no relations in Australia but had decided to travel with several of his friends, arriving in Sydney on 15 January 2019 on a first Working Holiday visa which he had applied for successfully online.

25. The applicant said he had a mate who was working in Sydney on a construction site, who referred him and where he also found work. He said he stayed in Sydney from January 2019 for a period working on construction sites. He said he travelled to Murrumbateman he thought in about February or March 2019 to start his three months regional employment, where he was engaged doing formwork for approximately six weeks. He said he then drove to Melbourne with some friends and completed two months regional farm work at Port Fairy in Victoria. He said he was away from Sydney until about August or September 2019, when he returned by plane in time for his 21^st birthday on 30 September 2019. The applicant said in October 2019, he applied for his second Working Holiday extension visa and completed the application himself, including the declarations about his work history to date. The application was granted on 12 October 2019.

26. The applicant explained to the Tribunal that during the second visa which was due to expire in or about October 2020, the applicant believed he had obtained a sponsor with the contractor with whom he had returned to work and where he had been employed as a labourer in Sydney.

27. The employer, Southwest Excavations, subsequently informed the applicant in 2020 that it was too difficult to sponsor employees at that time in 2020, when the pandemic had commenced and work was interrupted. The applicant said he was aware he needed to complete his six month regional employment requirement and found he was unable to do so within the time left on his second visa. The applicant said he went to Yass for approximately eight weeks in early 2021 where he was “driving dump trucks”. He then decided to go to Western Australia in about April 2021,and said he organised employment there working for O’Connor Contracting Pty Ltd, in a potash mine at Wiluna. The letter from the employer dated 26 November 2021 states:

    “Daniel Cleary is employed by O’Connor contracting Pty Ltd. Daniel has been working in the regional area of Wiluna in Western Australia on the salt lake potash mine. Daniel has been critical to our workforce since he came on board operating heavy machinery. Daniel has excelled in all areas of his work and in these hard times of sourcing skilled workers he is a vital asset to the construction industry. If you require any further information please contact (the writer).”

28. At the hearing, the applicant told the Tribunal he no longer had that employment because his visa was cancelled. He said the employer was giving him some casual work to help him sustain himself in the interim, while the applicant awaited the review. The applicant said he was now living in Perth in a share house and had no assets or other income.

29. The applicant said he was aware that he had not complied with the visa condition as to completing 6 months’ regional work

30. . He said he hoped however that the Tribunal would set aside the decision to cancel his visa. He said he did not want to return to Ireland. He said he had not been in contact with the Department and had made no contact. He said he had made a “stupid” decision but thought his visa should not be cancelled.

31. The applicant was asked if he wanted to make any further statements, comments or submissions concerning his visa history, the visa application, his current circumstances or what his expectations were for the future. He responded “no” to the invitation.

32. Regulation 2.41 sets out 10 criteria as the ‘prescribed circumstances’ under section 109 (1)(c) of the Act. The Tribunal has dealt with each of those prescribed circumstances in turn, as well as any additional circumstances considered appropriate. There is no mandated process for consideration of the prescribed circumstances by the Tribunal [4], and which consideration may differ from case to case. The Tribunal has found convenient to specify each of the criteria, as discussed with the applicant, as follows.

    [4] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145

    2.41 (a)

33. The Tribunal put to the applicant that the correct information is that the applicant had not worked for the required six months in regional Australia, as claimed in the visa application. The applicant agreed. The Tribunal gives some considerable weight to this consideration that the visa should be cancelled.

    2.41 (b)

34. This is not a case involving the content of a genuine document (if any) and consideration of this circumstance does not apply. The Tribunal gives no weight to this consideration as to whether the visa should be cancelled.

    2.41 (c)

35. The Tribunal finds it is satisfied that the decision to grant the applicant’s Working Holiday (Extension) Subclass 417 visa was based, wholly or partly, on incorrect information, conceded by the applicant and as set out above. The applicant also agreed with that proposition as the basis upon which the visa was approved by the Department. The Tribunal gives some considerable weight to this consideration that the visa should be cancelled.

    2.41(d)

36. The Tribunal explored the circumstances of the non-compliance at hearing with the applicant. The applicant said that he was given an email address, “ golden fish”, to contact.  He said he was told a person would assist him  to obtain a visa  when he had not completed specified regional work. He agreed he was not entitled to the visa. He provided his personal Information by email to the unidentified person. He said he paid $2000 by bank transfer to a nominated bank account. He said when he made the application, he was living at Surry Hills at an address in Sydney with 3 other Irish colleagues. The applicant  said he did not see the application before it was lodged. He said he received his visa a short time afterwards.

37. In answering the Tribunal’s questions, the applicant agreed that he had relied upon information about a third party in respect of whom he was entirely ignorant, but whom he permitted and authorised to make an application for the visa on his behalf and for the payment of a fee.

38. The applicant was asked whether he wished to make any other comments or provide any further information or submissions  concerning the circumstances in which the non-compliance occurred .Other than his admissions as set out above, the applicant declined to make any further comment. The Tribunal gives some considerable weight to this consideration that the visa should be cancelled.

    2.41 (e)

39. The Tribunal was informed by the applicant that he is currently unemployed and has little or no assets. The applicant has no immediate employment prospects, no other visa options which he is pursuing and is currently residing in a share house in Perth. The applicant said he is in good health, is not in any relationship, and has no reason he cannot return to Ireland other than for his wish to remain in Australia.

1. The Tribunal gives some weight to this consideration that the visa should be cancelled.

   2.41 (f)

2. The applicant has not engaged with the Department or provided a response to the notice. The applicant has, however, candidly admitted the incorrect information provided and as to the circumstances arising and how it occurred. The Tribunal gives some little weight to this consideration that the visa should not be cancelled.

   2.41 (g)

3. There is no information before the Tribunal of any other concerns arising as to the behaviour of the applicant since the lodgment of the application with the incorrect information in October 2020. The Tribunal has no information of any other non-compliance by the applicant. The Tribunal gives some little weight to this consideration that the visa should not be cancelled.

   2.41 (h)

4. The applicant was granted the third Working Holiday ( Extension) visa on 15 October 2020 and 14 months has elapsed since the non-compliance by the applicant. The Tribunal considers the lapse of time as relatively recent and given that the applicant has been aware since the notice on 9 August 2021, and  later on 17 September 2021, when the visa was formally cancelled. The Tribunal gives some little weight to this consideration that the visa should be cancelled.

   2.41 (j)

5. The Tribunal is not aware of any breaches of the law by the applicant since non-compliance and has no information before it in that regard. The Tribunal gives some little weight to this consideration that the visa should not be cancelled.

   2.41 (k)

6. There is no information before the Tribunal that the applicant has made any contribution to the Australian community, however, the Tribunal accepts that the applicant has been a law-abiding temporary resident. The Tribunal gives some little weight to this consideration that the visa should not be cancelled.

   Other relevant factors

7. The prescribed circumstances as listed under Reg 2.41 are considered above. However, case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. The Department’s procedural guide also requires delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under Reg 2.41.

   Australia’s International Obligations

8. The applicant has not raised any concerns that cancellation of his visa would engage any of Australia’s international obligations. 

   Effect of the cancellation

9. The Tribunal acknowledges that if the applicant's visa was cancelled, he may be prevented from being granted a range of temporary visas, for a period of 3 years from the date of cancellation. It also notes that cancellation would mean that the applicant would be prevented from applying for visas onshore pursuant to s.48 of the Act, except for a limited range of visas including Partner visas or a pandemic-related skilled visa. The applicant gave evidence that he has no qualifications since leaving school and there is no evidence to suggest he might qualify for a skilled or partner visa. The applicant said he had made no inquiry or arrangements about returning to Ireland or the cost involved. The Tribunal gives these consequences very limited weight in favour of not cancelling the visa.

10. Cancellation of the applicant’s visa entails some very serious consequences including upsetting any established community ties that may have been established over a 3-year period, physical dislocation and hardship, personal anxiety, and cost. Such outcomes are predictable and in some few instances may not be warranted, depending upon the particular circumstances giving rise to the decision to cancel. Presumably, that is why the statutory context does provide for the exercise of discretion, applied favourably to an applicant usually in a very small number of cases where the decision-maker, acting impartially and fairly, comes to the view that the discretion should be so exercised and in accordance with the statutory objective.

11. The proper exercise of discretion is a balancing act, where the facts found against the applicant must be weighed against those facts which are supportive. The Tribunal has had regard to the prescribed circumstances, as well as other factors not prescribed, but which the Tribunal has considered relevant and summarised above, such as the applicant’s work and personal circumstances, the pandemic, and importantly the effect of cancellation in this case on the applicant.

12. The Tribunal finds in this application, in consideration of whether the visa should be cancelled and in the exercise of its discretion, there is insufficient objective material available to tip the weight of evidence in the applicant’s favour.

13. In summary:

    a.The applicant has given evidence that the work was not performed by him as stated in the visa application and that the information was false.

    b.The Tribunal finds that the applicant authorised completion and lodgement of the application form on his behalf, and that completion of the form and its lodgement was not the result of any innocent mistake or misunderstanding or even negligence on his part, but rather wilful dishonesty.

    c.The applicant’s oral evidence discloses that at the time of authorisation and lodgement, the applicant had not completed the necessary specified work for 6 months. The applicant knew that as a consequence, he would not be entitled to a further Subclass 417 visa. The applicant knew that lodging an application on the basis the specified work was in fact undertaken was false and misleading.

    d.The applicant believed the email address he had been given would be used to authorise and lodge the application and for the purpose of obtaining the visa, and the applicant was complicit in the process of perpetrating a fraud on the Department and paid $2000 for the purpose.

    e.The applicant was concerned only that he obtain the visa, regardless of what claims were being made on his behalf.

    f.The applicant will not be unduly affected by having to return home and has not given any reasons which might raise concerns in that regard and noting that the visa granted was always only on the basis of genuine temporary entry to Australia.

14. For all these reasons, the Tribunal is of the view that the correct and preferable decision in the exercise of its discretion as to whether the visa should be cancelled, is in favour of cancelling the visa.

    Conclusion

15. 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.

16. The Tribunal finds the applicant authorised the provision of incorrect information in his 417 Working Holiday visa extension application and therefore failed to comply with s.101(b).

17. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that in the exercise of discretion whether the visa should be cancelled, the correct and preferable decision is that the visa should be cancelled.

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) 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.

    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.