Hickey (Migration)

[2022] AATA 133

Hickey  (Migration) [2022] AATA 133 (16 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lisa Anne Hickey

CASE NUMBER:  2111204

HOME AFFAIRS REFERENCE(S):          BCC2020/2706174

MEMBER:Christine Cody

DATE:16 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 16 January 2022 at 4:29pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in second extension application – 6 months of specified work in regional area while holding first extension – verification checks – discretion to cancel visa – sudden change of original intention to return to home country – COVID-19 restrictions – paid third party to complete and lodge application – ongoing work and relationship with permanent resident – legal consequences for future applications – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 98, 101(b), 107, 109(1)

Migration Regulations 1994 (Cth), r 2.41

CASE

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 Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act). The applicant is a 27-year-old woman from the Republic of Ireland, who came to Australia with her first working holiday visa in November 2018. She was subsequently granted 2 further working holiday visas, with the most recent being granted on 3 October 2020. It is the third visa that is the subject of the cancellation proceedings.

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in her third application for a Subclass 417 (Working Holiday) visa thus not complying with s 101 of the Act and having considered the prescribed circumstances under reg 2.41 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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 lodged an application for review with the Tribunal and was informed on a number of occasions that she could provide documents to the Tribunal in support of her application for review. She provided to the Tribunal a copy of the delegate’s notice of intention to consider cancellation (NOICC) dated 9 August 2021.

4. The Tribunal exercised its discretion to hold the hearing by MS Teams given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely.

5. The applicant was invited to a telephone hearing by way of letter dated 1 November 2021. The applicant was advised in that letter and the accompanying Fact Sheet that if she was not available or would experience difficulty in participating in the hearing as arranged, or if she wanted to make any comment on the suitability of the proposed hearing, she should let the Tribunal know as soon as possible. The applicant appeared before the Tribunal on 19 November 2021 to give evidence and present arguments. The Tribunal asked whether she would feel more comfortable to appear by video but she said she was fine to proceed by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. 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

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 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.

   Notice of intention to consider cancellation under s 107

9. A notice of intention to consider cancellation the applicant’s third working holiday visa granted 3 October 2020 was sent to the applicant on 9 August 2021. The notice indicated that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information about the details of specified work undertaken while the holder of a second working holiday visa (Subclass 417) in the application for a third working holiday visa (Extension) (Subclass 417) lodged and granted on 3 October 2020.

10. The NOICC provided particulars of the allegedly incorrect information given by the applicant being the reference to employment with Quenby Viticultural Services, ABN 49457432242, in Margaret River, Western Australia (postcode 6285) in the period 9 March 2020 to 30 August 2020 for 190 days; and her declaration that she had completed at least 6 months of specified work as the holder of a second working holiday visa after 1 July 2019.

11. The NOICC noted that in her application form she had provided the following answers to the form’s questions:

    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: 09 Mar 2020

    Date to: 30 Aug 2020

    Total days worked: 190

12. The NOICC advised that, subsequently, the Department conducted employment verification checks by contacting the trustee for Viticultural Services Unit Trust, the business registered under ABN 49457432242, to verify the employment claims. The business representative confirmed that the applicant did not complete the specified work with the business as claimed; she had never worked at their business.

13. The delegate considered on the basis of this information that the applicant had provided incorrect answers in support of her third working holiday (extension) visa application and did not comply with s 101(b).

14. 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?

15. 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) in the following respects: that the applicant provided incorrect information in the application for a third working holiday visa when she:

    ·Answered yes in response to the question: ‘The applicant declares that they have carried out at least six months of specified work’.

    ·Answered yes in response to the 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)’.

    ·Provided details of claimed employment with Quenby Viticultural Services under the section of the form titled ‘Details of Specified Work undertaken’.

    ·Answered yes to the declaration under ‘Working Holiday Declarations’: ‘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.’

16. There was no evidence that she had responded to the NOICC; when asked at hearing she said she doesn’t think that she had responded. The Tribunal considers that the applicant would recall if she had responded to such a significant piece of correspondence and on the evidence before it, it finds that she did not respond.

17. On 25 August 2021 the delegate found that there was non-compliance as described in the s 107 notice.

    Evidence before the Tribunal as to the non-compliance described in the s 107 notice

18. The applicant said she did not complete the application form herself. She contacted ‘goldish’; she doesn’t know the name of the person. He corresponded through an email address: she emailed him, there were some questions, she paid $2,000, he did the visa application online and she then got the visa. The Tribunal noted that she knew that she had to have completed her 6 months of regional work during the course of her second working holiday visa; it asked her what she thought was happening when the application for a third working holiday visa was being lodged on her behalf.  She said that she was just being naïve; she thought she would do this and just spend another year here and so many people were doing this and it was stupid and she was just offered this thing and she took it.

19. The applicant said that the responses in the application form referred to in paragraph 15 above were incorrect, she had never worked there, she did not carry out the specified work. She agreed that there was non-compliance as described in the NOICC, saying this was correct, she should not have got her third year and she did not do her farm work.

20. The Tribunal notes that ss 98, 99 and 100 of the Act specify that an applicant who does not complete their application form is still responsible for its contents if they cause it to be filled in or it is otherwise filled in on their behalf, and even if the applicant did not know at the time that a particular answer was incorrect.

21. On the basis of the evidence of the verification undertaken by the Department with Quenby Viticultural Services / the trustee for Viticultural Services Unit Trust and the applicant’s acknowledgement of the incorrect information, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

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

    Should the visa be cancelled?

23. 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).

    The prescribed circumstances: reg 2.41 of the Regulations

24. 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: ss 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 visa holder to the community.

    The correct information

25. The applicant conceded that she was not employed by Quenby Viticultural Services / the trustee for Viticultural Services Unit Trust as stated in the application, and that she has not undertaken 6 months of specified work as indicated in the application. She has, instead, been working in traffic control in Sydney. The Tribunal put to her that the extent of the incorrect information is a concern.

26. The Tribunal gives this matter considerable weight in favour of affirming the decision to cancel the applicant’s visa.

    The content of the genuine document (if any)

27. There is no allegation relating to a genuine document. Therefore, this factor is not relevant in this case.

    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

28. As stated in the NOICC, the applicant was granted a third working holiday visa on the basis that she had completed specified work in regional Australia for a period of 6 months (as well as meeting other relevant criteria). This was a requirement for the grant of a third working holiday visa. If the applicant did not meet this requirement she would not have been entitled to the grant of the visa and the delegate made the decision to grant the third working holiday visa in part on the incorrect information given by the applicant regarding her employment. The applicant acknowledged this at hearing.

29. The Tribunal finds the incorrect information was relied on by the delegate to grant her the visa. It finds that if the correct information was provided, she would not have met this criterion and the visa would have been refused. The Tribunal considers this is a significant matter and weighs in favour of affirming the decision to cancel the applicant’s visa.

    The circumstances in which the non-compliance occurred

30. The circumstances in which the non-compliance occurred were that the applicant applied for a Subclass 417 (Working Holiday) (Extension) visa on 3 October 2020 and provided incorrect answers in her visa application.

31. The applicant said that the time for lodging the third working holiday visa application was 3 October 2020. She was aware that she had to do 6 months of regional work in order to obtain a third working holiday visa, and she had not done this. She considered the first farm work she did to be isolating. She was planning to go home in November 2020, but the month before, she decided she did not want to go home. There was no particular reason why she didn’t want to go home, a lot has changed at home and she felt like she wouldn’t fit in. She was so happy and content she could not face going back to Ireland. She doesn’t feel that ‘home is for me’, and with the COVID-19 pandemic (which started in about February 2020) she panicked, and she thought she would get another visa. She said back home there was a lockdown and people were not leaving their houses. She is from the countryside, her family lives there, so being able to travel a 5 km radius only covers farmland; it doesn’t take you anywhere.

32. The Tribunal said that she could have approached the Department and sought advice, but she did not and instead she decided to provide false information to obtain a further visa. She agreed and said that at the time she was not in a relationship with anyone, so she didn’t think she could get a visa. She said that she is remorseful; she became teary at the hearing.

33. The Tribunal has considered all of the factors raised by the applicant as to why she provided the false information. The Tribunal accepts that the applicant was forthright and open at the hearing about the provision of false information, and that she is sorry. The Tribunal accepts that the circumstances in Australia in 2020 were unusual with the COVID-19 pandemic and lockdowns occurring. The Tribunal also accepts that the situation in Ireland as a result of the COVID-19 pandemic was difficult at the time, and that the applicant did not want to return for that reason and for other personal reasons. However, it is of concern to the Tribunal that the applicant, who is capable and resourceful (noting that she managed to come to Australia, a foreign country, understand the requirements for and submit 2 previous working holiday visa applications to the Department, and managed to maintain employment in a foreign country during the COVID-19 pandemic), did not contact the Department to ascertain what options were available for temporary visa holders during the COVID-19 pandemic. The Tribunal notes she had 6 months to do so from March 2020 (when the pandemic had set in). Instead, in October 2020, she took the option of paying $2,000 to lodge a visa application based on false information.

34. Thus, while it accepts the applicant had concerns, the Tribunal has found that the applicant knowingly caused the provision of false information in order to obtain a visa for which she knew she did not meet the criteria and it does not accept that this was the only available option open to her. As discussed at hearing, there were other options to explore such as contacting the Department. The Tribunal is not satisfied that the applicant’s circumstances at the time justify her conduct.

35. The Tribunal considers that, on balance, the circumstances weigh in favour of affirming the decision to cancel the applicant’s visa.

    The present circumstances of the visa holder

36. The applicant told the Tribunal that she is settled here, she is living with her boyfriend (since end May 2021), they are serious, and they have a puppy together and she doesn’t want to go home now. He is Irish too; he is a permanent resident. Together they are very settled and they don’t intend to go home any time soon. Their intention was to settle down; he loves it here and she doesn’t want him to move home because of her.

37. The Tribunal accepts that if the applicant’s temporary working holiday visa is cancelled it would adversely impact on the applicant’s relationship and her feeling that she is settled in Australia.

38. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.

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

39. The applicant did not contact the Department to correct the incorrect information. The Tribunal places adverse weight on the applicant’s subsequent behaviour concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act and this weighs in favour of cancelling the visa.

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

40. There is no evidence before the Tribunal to indicate that there are other instances of non-compliance by the applicant. The applicant said there were no other instances. While this is positive, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.

    The time that has elapsed since the non-compliance

41. The non-compliance occurred on 3 October 2020 when the applicant provided, or caused to be provided, incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa. This was about 15 months ago, and since then the applicant has been working, feels settled in Australia and has a serious relationship with her boyfriend. She said that she knows that she should not have done it and she knows it was wrong and if she could go back she would change it, she would have applied for a student visa. She doesn’t want this to affect her and her boyfriend.

1. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

2. There is no evidence before the Tribunal to indicate that the applicant has breached any laws since the non-compliance. The applicant said there have never been breaches of the law.

3. While this is positive, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.

   Any contribution made by the holder to the community

4. The applicant said she donates blood every 3 months and she served at a soup kitchen once or twice.

5. The Tribunal gives this a little weight in favour of setting aside the decision to cancel the applicant’s visa.

   Other matters for consideration

6. 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 Procedures 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.

   Whether there would be consequential cancellations under s 140 of the Act

7. There is no evidence before the Tribunal to indicate that there would be consequential cancellations under s 140 of the Act if the applicant’s visa is cancelled; the applicant said there are no consequential cancellations. This factor is not relevant.

   Are there children whose interests would be affected by the cancellation of the visa?

8. The applicant said that there are no children whose interest would be affected by the cancellation of this visa. This factor is not relevant.

   Would the cancellation lead to the applicant’s removal in breach of Australia’s non-refoulement or family unity obligations?

9. The applicant said that these matters are not relevant. Insofar as the applicant has a partner who is a permanent resident, who has been here for 5 years and would like to stay here, this is considered below.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

10. If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, she will become an unlawful non-citizen and may be liable to be detained under s 189 of the Act and removed under s 198 of the Act unless she departs Australia voluntarily. The applicant said that if her visa was cancelled she would depart; she and her partner and the puppy would leave together.

11. If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, she will be subject to s 48 of the Act which means she will have limited options when applying for further visas while in Australia. Further, she will be affected by public interest criterion 4013 under Schedule 4 to the Regulations where she may be prevented from being granted certain types of visas for a period of 3 years from the date of visa cancellation.

12. The Tribunal accepts that such consequences would be difficult for the applicant and it considers that this does weigh in favour of setting aside the decision to cancel her visa. However, this is tempered by the fact that these are the intended legal consequences as set out in the legislation when a visa is cancelled as it reflects the seriousness of a breach of s 101(b) of the Act and consequent cancellation of a visa. As she acknowledged, the applicant has benefitted from providing the incorrect information in her working holiday visa application, and it is very likely that she would not have been granted that visa if she had provided correct or accurate information about the 6-month regional work requirement.

13. The Tribunal balances these matters and gives these consequences a little weight in favour of setting aside the decision to cancel the applicant’s visa.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

14. The Tribunal has considered the hardship for the applicant, who considers she is settled here, and her partner of moving back to Ireland, given especially that her partner is a permanent resident here and has lived here for 5 years.

15. The Tribunal also acknowledges that the applicant said that she had done her initial 3 months of regional work during her first working holiday visa.

16. The Tribunal gives these matters some weight against affirming the decision to cancel the applicant’s (temporary) visa.

    Conclusion on the exercise of the discretion

17. Having carefully considered all of the above, the Tribunal concludes the matters that weigh in favour of cancelling the visa in this case on balance outweigh the factors that weigh against cancellation. In its assessment, the Tribunal places significant weight on the fact that the visa would not have been granted had the correct information been provided, and the applicant's knowledge of this at the time she paid someone to lodge the visa application. She was aware that a claim was being made that she had spent 6 months working in regional Australia, when that was not at all true, and while it accepts that the applicant experienced uncertainty and fears during the COVID-19 pandemic, and a preference to stay in Australia, and that she is now sorry, the Tribunal considers that the migration system was undermined in a significant manner by the provision of this incorrect information. The information was not corrected by her until after it was discovered to be untrue. The Tribunal does not accept that the circumstances justified her decision to pay for and enable a person to provide incorrect information to secure a visa rather than approach the Department.

18. The Tribunal acknowledges that if her visa is cancelled this will have an effect on her future visa prospects and her relationship, and her partner’s circumstances. While this is a consideration, as are her contributions to the community and the lack of other non-compliance or breaches of the law, the Tribunal concludes the factors in favour of cancelling her temporary visa outweigh those against cancellation and that the visa should be cancelled.

19. 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

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

    Christine Cody
    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.