Le (Migration)

[2017] AATA 489

Le (Migration) [2017] AATA 489 (22 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chi Cong Le

CASE NUMBER:  1616105

DIBP REFERENCE(S):  BCC2015/2120372

MEMBER:Rieteke Chenoweth

DATE:22 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 22 March 2017 at 4:09pm

CATCHWORDS

Migration – Cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – s 109(1) – Incorrect answers in visa application – Sponsor and visa applicant are cousins – Family relationship unknown at marriage – Applicant denied contact with close relatives – Vietnamese law prohibits marrying cousins – Whether partners are related by blood – Difficulties in interpretation – Applicant sponsored a new partner and child

LEGISLATION

Migration Act 1958, ss 5F, 12, 97, 98, 99, 100, 105, 107, 109(1), 140

Migration Regulation 1994, Schedule 2 cl 457.223(4)(a), r 2.41, r 5F(2)
Income Tax Assessment Act 1936
Marriage Act 1961

CASES

Adelaide Motors Ltd v Federal Commissioner of Taxation (1942) 66 CLR 436
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that on his application form for the Subclass 300 (Prospective Marriage) visa, and his combined UK/BS 820/801 Partner visa where the questions asked whether he and his sponsor are related by blood, marriage or adoption, the applicant answered “no”. As he and the sponsor are in fact first cousins the delegate considered this answer to be incorrect. 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. On 26 October 2016 the Tribunal wrote to the applicant stating that it had considered the material before it but was unable to make a favourable decision on this information alone.  It invited the applicant to appear before it to give evidence and present arguments on 12 December 2016 at 2.00 pm.

4. On 31 October the applicant requested an postponement of the hearing.  The Tribunal agreed to postpone the hearing and scheduled another hearing for 16 January 2017.  

5. On 1 December 2016 the solicitor for the applicant requested that the decision in this matter be made on the papers.

6. On 22 December 2016 the representative for the applicant wrote to the Tribunal referring to the request that the decision be made on the papers.  The letter stated that if the AAT was unable to make a decision on the papers and the matter proceeds to hearing they wished to notify the AAT of the witnesses who would attend. The Tribunal considered that the letter was a request that the matter proceed to hearing rather than being determined on the papers as previously requested. A further hearing was scheduled for 14 March 2017 at 9.30 am.

7. At the hearing Mr Dai Khac Huynh, Mr  Minh Tri Bui gave evidence. Ms Thi Muoi Nguyen, a Buddhist nun gave evidence by phone.

8. The applicant was represented in relation to the review by his registered migration agent. The agent made a written submission to the Tribunal concerning the application.

9. 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

10. At the start of the hearing the Tribunal advised the applicant’s representative that there is a certificate under section 375A of the Act on the folios in the Department file. The certificate states that the information on these folios relates to internal Department procedures and third-party information. The Tribunal is satisfied that the certificate is valid but that the information in these folios is not relevant to the matter. The documents relate to Departmental procedures and third parties and are not relevant to whether the applicant answered the questions on the visa application form correctly. 

11. At the hearing two of the witnesses attending, Mr Dai Khac Huynh and Mr Ly Minh Tri Bui, gave evidence that they had met both the applicant and the sponsor and were convinced that the relationship between them was genuine in the time they lived together.

12. 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.

13. 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.

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.

15. The applicant told the Tribunal that he and his first wife, who was the sponsor in the application for his Subclass 300 (Prospective Spouse) visa, had lived in the same village in Vietnam. He said however that he had not known her at that time and they had not met. He said that although his mother and his mother-in-law were sisters he had not been aware of this until about 12 months after he came to Australia.  He claimed they had not been together at family gatherings or attended the same school. The sponsor came to Australia with her family at the age of 8. He said he did not know that his mother had a sister who lived in Australia or that the sister had a daughter.

16. The Tribunal put to the applicant that it had information that the village they lived in currently had a population of 187,620 people. It put to him that it would be expected that he would have had some contact with close family relatives. He denied that he had any contact with the sponsor or was aware of her existence.

17. The Tribunal put to the applicant that when he met his then wife he would have talked to her about her family and also talked to his own mother about his intention to marry and live in Australia. He said she had not told him about her family.  He also denied that his mother had ever said that she had a sister living in Australia at the time that he was planning to move to Australia.

18. The applicant denied any knowledge of any family conflict or rift which may have accounted for his not knowing that his mother had a sister and that this sister’s daughter was his wife.

19. The Tribunal asked the applicant whether his mother had attended his wedding to the sponsor. He said that she had attended the engagement party. However, he said that even though his mother had been present at the engagement party she had not told him that his prospective wife was also his cousin and her mother was a sister even though, under the Vietnamese law he would not have been able to marry his cousin. He did not offer any explanation as to why his mother did not tell him about this at the time.

20. The Tribunal asked the applicant why he had completed the question on the application form which asked whether he was related to the sponsor by blood, marriage or adoption as “No”. He said that it had been a mistake on his part to answer the question in this way but he had not understood the English. He told the Tribunal his migration representative had assisted him in completing the form and had translated the relevant questions to him. However, he then subsequently reiterated that he had not known that the sponsor was his cousin until a year after he came to Australia.

21. The applicant acknowledged that the sponsor for his 309 partner visa is his first cousin. The decision record which the applicant submitted with the application for review also states that the delegate found that he and the sponsor were first cousins.

22. The Tribunal does not find the applicant to be a credible witness in his evidence that he was not aware that the sponsor was his cousin. The Tribunal considers it is highly implausible that the two sisters, his mother and his mother-in-law, were living in the same village in Vietnam and did not spend time together or talk to each other or introduce their children to each other. The Tribunal considers Vietnamese families are generally close to each other and aware of their relationships with each other. It takes into consideration that the applicant denied that there was any family conflict which may have caused the sisters not to communicate with each other.

23. The Tribunal finds that at the time the applicant completed the form 47SP for the application for the 300 visa he knew that the sponsor was his cousin.

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

24. 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 information he provided at question 77 on Form 47 SP “Application for migration to Australia by a partner”. The question asked was “if you are in a de facto spouse fiancé(e) or interdependent relationship are you related to your partner by blood, marriage or adoption.” The applicant checked the box marked “No”. This information was also provided on the application for a class TO subclass 300 Prospective Spouse visa sponsored by Ms Trang Thi Duong.

25. On 24 March 2008 the application for the visa was refused as the delegate was not satisfied that the applicant had a genuine intention to live with his sponsor spouse. On 10 August 2009 the Migration Review Tribunal set aside this decision and on 10 November 2009 the applicant was granted TO subclass 300 Prospective Spouse visa on the basis of the information provided and meeting all other criteria.

26. On 15 November 2009 the applicant arrived in Australia and on 21 December 2009 he lodged an application for a combined Partner application, UK subclass 820 Temporary Partner visa. As part of the application he completed a form 47SP in which he provided information at Question 36 about his parents. He was also required to provide information about his partner’s family details. This showed that his mother and his partner’s mother are sisters.

27. On the application Form 47SP, Question 76 stated: If you are in a de facto or fiancé(e) or interdependent relationship, are you related to your partner by blood, marriage or adoption. The applicant checked the box marked “No”.

28. On 16 March 2010 the applicant was granted the class UK 820 Temporary Partner Visa. On 3 April 2012 the applicant was granted the class BS subclass 801 Partner visa. Following the grant of this visa the Department, through the provision of other visa applications obtained information which indicates that the applicant’s mother, Thi Man Nguyen is the sibling of his sponsor’s mother Thi Hai Nguyen. This indicates that he and his sponsor are first cousins.

29. In the decision record the delegate noted that the applicant had not complied with the requirements of Section 101 which provides:

    Section 101. Visa applications to be correct

    101.      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.  

30. The delegate considered the applicant failed to answer Question 77 correctly in his application for the Subclass 300 visa.  He further failed to answer Question 76 correctly in his application for the Subclass 820/801 visa. The delegate considered that in answering “No” respectively to questions 77 and 76 in which he was asked if he was related to his partner by blood, marriage or adoption he had provided an incorrect answer and therefore had not complied with section 101(b).  

31. The migration agent for the applicant made written submissions to the Tribunal. He did not dispute that the applicant had answered “No” to the relevant questions 77 and 76 on Form 47SP asking whether the applicant was related to the sponsor related by blood, marriage or adoption. Nor did he dispute that the applicant is in fact the first cousin of his partner.

32. The migration agent noted that “related to your partner by blood…” Is not defined in the Act or the regulations. He noted that if one considers the plain and ordinary meaning of the term “related by blood” this can be taken from the term “blood relation” in the English Oxford Dictionary (second edition 1989) namely: A person related to another by birth or consanguinity; a kinsman. Hence blood relationship, consanguinity, kinship. The definition of quote consanguinity” is “the condition of being of the same blood; relationship by descent from a common ancestor; blood relationship”. He considered that in the present case the plain and ordinary meaning of the phrase, “”related by blood” would obviously include first cousins who are descended from a common ancestor.

33. The migration agent noted that under the statutory interpretation principles that all words should be given meaning and effect in the context of the question, the words “to your partner” must be given some meaning and effect and therefore the blood relationship should be looked at in the context of a partner or spousal relationship. As authority he cited Latham CJ in Adelaide Motors Ltd v Federal Commissioner of Taxation (1942) 66 CLR 436 which considers the meaning of the term “a husband or wife or a relation by blood, marriage or adoption” under the provisions of the Income Tax Assessment  Act 1936 – 1940. The Chief Justice at 444 agreed with the criticism of similar provisions by the Kings Bench in Himley’s Case where he said “a cousin 50 times removed is included under this definition… This provision was properly described in Himley’s case as both bewildering and ridiculous.”

34. He submitted that in the present case it would be patently absurd to construe the phrase “related by blood” to apply to any two persons who are descended from a common ancestor as such a group would be impossible to identify and would potentially be unlimited in size.

35. The migration agent submitted that to limit the scope of the phrase “related by blood” so as to avoid an absurd result one must interpret the phrase with regard to the context and purpose of the provision in accordance with Project Blue Sky. To do this it is relevant that the blood relationship questions are directed towards ascertaining whether an applicant meets the criteria that they either intend to marry a person in Australia or that they be the spouse or de facto partner of an Australian. Spouse is relevantly defined in s 5F (1) as two persons who are “in a married relationship” which in turn is relevantly defined in s 5F (2) (a) as being “married to each under other under a marriage that is valid for the purposes of this Act” section 12 of the Act then provides:

    for the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage act 1961 applies as if section 80 8E of that Act were omitted.

36. The migration representative submitted that under the Marriage Act 1961 a marriage between first cousins is not a “prohibited relationship”. He submitted that with reference to the present context it becomes relevant that section 12 of the Migration Act and reg 5F (2) of the Regulations expressly import the requirements of the Marriage Act to determine whether a marriage that is valid for the purposes of the Migration Act. The Tribunal is satisfied that the marriage is valid.

37. In this matter there is no dispute, and the Tribunal so finds, that the applicant answered to the question on the application forms: If you are related in a de facto spouse, fiancé(e) or interdependent relationship, are you related to your partner by blood, marriage or adoption by checking the box marked “No”.

38. The issue to be determined is whether in answering in this manner the applicant gave an incorrect answer and in so doing breached s 101 (b).

39. The Tribunal considers that if the plain and ordinary meaning of the term “related by blood “is taken as set out in the English Oxford Dictionary, the term, “related by blood” can be taken from the term “blood relation” in the English Oxford Dictionary (second edition 1989) namely: A person related to another by birth or consanguinity; a kinsman. Hence blood relationship, consanguinity, kinship. The definition of “consanguinity” is “the condition of being of the same blood; relationship by descent from a common ancestor; blood relationship”. As the applicant was the first cousin of his sponsor the Tribunal is satisfied that under this meaning the applicant would be considered as related by blood and should have answered “yes” to the question asking whether he was related by blood.

40. However the Tribunal must also consider the context in which this question was asked. It was asked and responded to firstly in an application for a Subclass 300 prospective spouse visa and secondly in the Subclass 820/801 partner visa. In this context, the Tribunal noted that the question did not ask whether the applicant was a “relative” of his sponsor. The term relative is defined at r.1.03 as “a close relative, a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step uncle, step-niece or step-nephew”. Had the question asked whether the applicant was a “relative” and provided the categories of consanguinity that fell within this definition it would have been clear to the person applying for the visa how to answer this question. In that case the correct answer for the applicant would have been “No”.

41. The question is directed at people who are a de facto spouse, fiancé(e) or in an interdependent relationship with the sponsor. In the definition of de facto set out at 5 CB(4) of the Act it refers to whether one is a child with the other, a descendant of the other or they have a parent in common. These definitions also exclude first cousins.

42. In this case the wording of the question casts the net wider in that it includes other people to whom the applicant is “related by blood”. It does not ask whether the person is a “relative” of the sponsor and provide a definition of the term relative. The term “related by blood” is not defined in the Act whereas the term “relative” is defined. In using this term the legislature included a broader category of people in specifically stating it in this way. The Tribunal considers this was done for a specific purpose. However in phrasing the question in this way, the Tribunal considers that it also introduced a degree of ambiguity as the term, ‘related by blood’, can include very distant relatives, which could go to the point of absurdity.

43. The Tribunal considers that the use of the term “related by blood”, while it may have been designed to widen the scope of people to be taken into consideration, lacks clarity in that it is a broad category, which is also not defined in the Act and therefore it is unclear what the correct response to the question should be. However, the Tribunal considers that the form of the question requires the applicant to disclose the existence of any known blood relationship no matter how distant. In most cases where this was a distant relationship this would then be considered as not relevant to the decision whether or not to grant the visa.

44. In considering whether or not the applicant gave the correct answer to the question asking him whether he was related by blood to sponsor, the Tribunal has taken into consideration the fact that in this case the applicant was very closely related to the sponsor. Their mothers were siblings. The applicant gave evidence at the hearing that he was not aware of the relationship although as stated above, the Tribunal does not find this to be credible. The Tribunal considers this is something he would have been well aware of and, while it would not have automatically precluded him from being granted the visa, it would have indicated to the Department that it may need to investigate the relationship more fully.

1. The Tribunal considers that had the applicant declared on the application form that he was related by blood to the sponsor and that in fact they were first cousins, the Department may have had reason to examine whether or not the relationship was genuine more fully. The Tribunal considers as they were first cousins living in the same village for several years, it is unlikely that they would not have met each other in the years before the sponsor moved to Australia. The Tribunal considers that the applicant did not declare his blood relationship with the sponsor because he did not want the Department to investigate the genuineness of the relationship in more detail.

2. 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?

3. 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).

4. 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.

5. Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

6. In this matter the Tribunal is satisfied that, in stating on his application forms for the 300 prospective spouse visa and on the 820 partner visa that he was not related by blood to the sponsor, the applicant did not give or provide correct information to the Department and accordingly breached s 101(b). In doing so, the applicant failed to give information to the Department which may have caused it to examine the genuineness of the relationship in greater detail in determining whether to grant the visa. While the information provided was not directly relevant to the grant of the visas, it was relevant in that the Department may have examined the issues involved in the application more fully and possibly decided to refuse the visas.

7. In this matter there is no issue concerning the content of a genuine document.

8. The Tribunal considers that at the time the non-compliance for the 300 prospective spouse visa occurred the applicant was in Vietnam.  There is nothing before the Tribunal that indicates that at the time he had any significant ties to Australia other than his claimed relationship with the sponsor.

9. The applicant presently continues to reside in Australia as a permanent resident. He advised the Department that he separated from his sponsor in October 2012 some 6 months after the grant of his Subclass 801 visa. The couple divorced in December 2013. The applicant told the Department he still has contact with his ex-wife’s children from her previous marriage and will sometimes collect them from school or take them out for a meal. At the time of this decision, the applicant stated he has entered into a new relationship and has lodged an application for his fiancée to migrate to Australia. No decision has been made in respect of this application. His fiancée gave birth to their child in Vietnam on 8 July 2016. The applicant is currently employed as a tiler and has been volunteering his services at the local Buddhist Temple, the Lam Hue Temple. He advised the Department that his mother continues to reside in Vietnam.

10. At the hearing Ms Thi Muoi Nguyen, a Buddhist nun gave evidence by phone that the applicant was a good man in her opinion and that he performed voluntary work at the local temple.

11. The applicant advised the Department that he is involved with the Hue Lam Temple. He advised that he does work around the temple for free including tiling work and handyman assistance approximately twice a month.

12. The Tribunal accepts that the applicant makes a contribution to the community in his maintenance and work on the Lam Hue Temple and his financial support for the temple. However, there is no evidence before the Tribunal of the extent of his work or financial contribution or whether this is essential to its survival.  The Tribunal puts limited weight on this aspect.

13. The applicant responded to the notice concerning the cancellation of his visa. In response to the Department he has stated that he continues to believe that he gave correct information in his application and have therefore complied with section 101 (b).

14. There are no other instances of non-compliance by the applicant known to the Department.

15. The non-compliance occurred in 2007 when the applicant lodged the claim for a class TO subclass 300 Prospective Marriage visa on 24 December 2007. It was repeated when he lodged the application for a combined class UK/BS subclass 820/801 Partner visa on 21 December 2009. There are no other instances of non-compliance. The Tribunal puts some weight on this in the applicant’s favour.

16. There is no information before the Tribunal to indicate that the applicant has breached the law since his non-compliance.

17. The Tribunal notes that the applicant’s fiancée and their child’s visas have not been granted yet.  As they are not located in Australia and do not have Australian visas the Tribunal does not give this aspect any weight.

18. There is no information before the Tribunal to indicate that visa cancellation would be in breach of Australians international obligations.

19. The Tribunal has taken into account the evidence set out in the decision record submitted with the application to the Tribunal that the applicant still has contact and some caring duties for his sponsor’s children and that visa cancellation may cause some distress to them. However he advised that he divorced the sponsor in 2012 and is therefore no longer their legal stepfather. There is no evidence before the Tribunal that he has legally adopted these children and could therefore be considered as their parent, legal guardian or legally responsible person. There is no evidence before the Tribunal that he has a strong bond with those children such that his absence would cause significant harm or damage to them. The Tribunal is not satisfied that he is a member of the family unit of these children.

20. 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

21. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

    Rieteke Chenoweth
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.

    105Particulars of incorrect answers to be given

    (1)If a non‑citizen becomes aware that:

    (a)      an answer given or provided in his or her application form; or

    (b)     an answer given in his or her passenger card; or

    (c)      information given by him or her under section 104 about the form or card; or

    (d) a response given by him or her under section 107;

    was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

    (2)Subsection (1) applies despite the grant of any visa.

    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.