Lee (Migration)

[2021] AATA 5438

Lee (Migration) [2021] AATA 5438 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Po-Yuan Lee

CASE NUMBER:  2113169

HOME AFFAIRS REFERENCE(S):          BCC2021/1434755

MEMBER:Jennifer Cripps Watts

DATE:3 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 3 December 2021 2 at 11:20am

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 – arrest warrant and drug charges in Taiwan – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 107, 109, 359, 375
Migration Regulations 1994, r 2.41, Schedule 2

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 (the Act).

2. On 22 September 2021, the delegate cancelled the visa granted on 5 July 2021 on the basis that the applicant provided incorrect answers in the visa application.  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 28 September 2021, the applicant applied for merits review and provided the Tribunal with a copy of the primary decision record.

4. The applicant was invited, in writing, to appear before the Tribunal on 1 December 2021.  An email from the applicant’s representative was received at 4:32pm on the day before the hearing advising that the applicant would not ‘participate’ in the hearing ‘as he is under great pressure at the moment’.  They advised that the applicant consented to ‘the Tribunal making a decision based on the documents he provided on 23/11/2021’.  These documents were received by the Tribunal in response to the Tribunal inviting the applicant to respond to or comment on adverse information.  The hearing was cancelled and the Tribunal has made a decision on the evidence before it.

5. The applicant was represented in relation to the review by his registered migration agent.  The Tribunal has communicated with the applicant through the migration agent, who is his appointed representative and authorised recipient.

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. The applicant is a national of Taiwan, born in 1994 who arrived onshore on 26 January 2019.  He has held three working holiday visas, granted on:

   a.(offshore) 19 November 2018, ceased 26 January 2020

   b.9 April 2020, ceased 26 January 2021

   c.5 July 2021, cancelled 22 September 2021

8. The reason the applicant’s subclass third 417 working holiday visa, granted on 5 July 2021, was cancelled was because he provided incorrect information in the previous visa application.  It is the cancellation of this visa that is the subject of the review.

9. It is included on the Department file, and in the primary decision record, that after the visa was granted in July 2021, information was received from the Taiwan National Policy Agency indicating the applicant was issued a warrant by the prosecutor’s office in Taiwan in relation to drug related charges in 2018, before the working holiday visa applications were made.

10. 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.

11. 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 (the notice), 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.

12. Section 107A of the Act provides that non-compliance with s.101(b), in connection with a previous visa application, may be grounds for cancellation of a visa holder’s current visa.

13. In this case, 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.

    Section 359A letter

14. A non-disclosure certificate under s.375A of the Act, electronically signed and dated 4 October 2021, was placed on the Department file, referring to folios containing adverse information about the applicant.  The Tribunal’s obligations under s.359A were engaged and, on 26 October 2021, a letter was sent to the applicant inviting him to comment on or respond to the information particularised and the validity of the s.375A certificate. 

15. It is included in the certificate that it would be contrary to the public interest to disclose the information, to anyone other that the AAT, because the information would or tend to identify a confidential source and disclose lawful investigation methods which would or be likely to prejudice the effectiveness of the methods.

16. In the letter sent by the Tribunal, some background information was included, for context.  The essence of the adverse information was given and the consequences for the applicant of the Tribunal relying on the information.  Some of the information had already been provided to the applicant in the notice and is referred to in the primary decision record.

17. The Tribunal provided the applicant with additional details relating to the matter of the Taiwan National Police Agency (TNPA) issuing an arrest warrant for the applicant in 2018.  The particulars given were that the TNPA confirmed that the applicant was issued a warrant by the prosecutor of the TNPA regarding manufacturing Ketamine in 2018 and another warrant for a minor fraud case and that the TNPA confirmed that the applicant may be informed of the existence of the warrants.

18. The applicant was also provided with information about allegations made against him to the Border Watch Allegation Referral Team (BWART) in 2021.  The informant requested that the allegations be anonymous..  Essentially, the allegations relate to the applicant’s third working holiday visa application and included that he did not work for the required six months before applying for the visa, but paid someone to provide fake documents to make it appear he had worked on a farm.  It is alleged that the agent and applicant had an arrangement whereby payments purportedly from the farm were deposited into the applicant’s bank account and then the applicant would pay the amounts back to the agent in cash.  It is alleged that during the period he claimed to have worked on the farm, during 2020, the applicant worked as a delivery driver and was paid in cash.  The informant also included that the applicant was wanted for producing and selling drugs in Taiwan.

19. The Tribunal provide reasons why relying on the information would be a reason or part of the reason for affirming the decision to cancel the applicant’s subclass 417 working holiday visa.  He was informed, in the s.359A letter (at page 3 of 4), of the consequences of the Tribunal relying on the information:

    ‘The material issue on review is whether or not you provided incorrect answers
    in your visa application relating to the existence of any arrest warrant or Interpol notice. The Tribunal gives significant weight to the information that was obtained and provided by national and international law enforcement agencies, relating to the 2018 arrest warrant relating to the manufacture of Ketamine.

    The substance of the anonymous allegations made in 2021 concern whether or not you worked as you claimed to have done on a farm during a relevant period, relating to your working holiday visa application. The allegations mainly concern your work history, which is not relevant to the material issue on review.  Usually, the Tribunal would not give much weight to an anonymous allegation because the allegation cannot be tested. However, relating to the 2018 drug charge and arrest warrant, the informant provided information consistent with that provided by the Taiwan National Police Agency. For that reason, the Tribunal is inclined to give at least some weight to that part of the allegation, relating to the 2018 drug charge and your being ‘wanted’ in Taiwan, because of the high degree of credibility given to the information provided that the Tribunal is satisfied was provided by the Taiwan National Police Agency.’

20. The applicant was invited to comment on or respond to the information.  It was specified that a response was due in writing no later than 9 November 2021.  The applicant requested an extension of time, which was granted to 23 November 2021.  On 23 November 2021, the applicant responded by email and attached:

    a.A Statutory Declaration, sworn by him on 20 November 2021

    b.A statutory declaration from Yueh-Hung Liu, Manager West Link Connect Pty Ltd, sworn on 5 November 2021.  He declares that the applicant was employed by the company from 30 May 2020 to 28 November 2020, on a casual basis but no less than 35 hours a week, on an hourly rate of $24.36

    c.Taiwan Police Criminal Record Certificate (duplicate) dated 23 January 2019 declaring no conviction record for the applicant in Taiwan

    d.Copies of documents that it is claimed are payslips for the applicant when he worked at West Link Connect Pty Ltd, dated from 30 May 2020 to 4 September 2020 (first bank entry 06/07/2020

    e.His Commbank statement for the period 2 July 2020 to 29 September 2020

21. Essentially, the applicant’s claims and responses include that:

    ·He had no criminal record or outstanding arrest warrant or Interpol notice when he departed Taiwan on 25 January 2019 and has provided a Taiwan Police Certificate to verify the claim

    ·He promises he has never received a notice from the police or any authority in Taiwan about the warrant and it could be one of thousands of administrative errors or mistakes ‘due to negligence raised by the local police department’ and seems to suggest that the TNPA saying that the AFP that the applicant ‘may’ be informed, ‘instead of giving a position confirm’, would be reason to accept that any arrest warrant is as a result of negligence, mistake or error

    ·He had ‘no idea about the warrant at the time I made the visa application’

    ·He answered all information in the visa applications he lodged on 23 January 2020 and 8 January 2021 correctly ‘to the best of my (his) knowledge’

    ·The first time he became aware of the outstanding arrest warrant was after he received the visa cancellation decision (in 2021)

22. In his written response, the applicant also addressed the anonymous allegations and says that the allegation against him is ‘groundless, false, and misleading’, and that it may have been made because of some ‘hostility’ towards him.  He included the documents earlier described and addressed the claim that he did do the relevant work at a farm.  More details were provided, however the Tribunal informed the applicant in the s.359A letter that the only part of the allegation it would give weight to was the allegation relating to the arrest warrant and drug charges in Taiwan.  The reasons were provided in the s.359A why the Tribunal considered the matter of what farm work he did in 2020 was not material to the issue on review. For this reason, the response containing comments and information relating to the farm work have been considered but are not relevant.

23. In the s.359A letter, the applicant was informed that the Tribunal gives significant weight to the information that was obtained and provided by the national and international law enforcement agencies, relating to the TNPA 2018 arrest warrant for the applicant for the manufacture of Ketamine.  The part of the anonymous allegation relating to the 2018 arrest warrant and drug charge is given weight because it is corroborated by what the Tribunal considers to be reliable information about the warrant and charges, from the TNPA, that are on the Department file.

    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 s.101(b) as follows:

25. At page 8 of the applicant’s online application form relating to the subclass 417 working holiday visa application lodged on 23 January 2020, Character Declarations:

    QuestionHas any applicant ever been the subject of an arrest warrant or Interpol notice?

    AnswerNo.

26. At pages 9 and 10 of the online application, Declarations, which includes the warning that giving false or misleading information is a serious offence. 

    The applicant declare that they:

    QuestionHave read and understood the information provided to them in this application.

    Answer           Yes

    QuestionHave provided complete and correct information in every detail on this form, and on any attachments to it.

    Answer Yes

    QuestionUnderstand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

    Answer Yes

27. Relating to the 23 January 2020 application, the applicant was granted the (second) subclass 417 working holiday visa on 9 April 2020.

28. In the online application for the next subclass 417 working holiday visa, lodged on 8 January 2021, the same question and answers are recorded as they were in the 23 January 2020 application, included above.   This (third) working holiday visa was also granted, on 5 July 2021.

29. The Tribunal has considered evidence and information relevant to the material issue of whether the applicant’s non-compliance as described in the s.107(1) notice.  That is, whether the applicant provided incorrect answers in the visa applications.

30. In the applicant’s response to the s.107 notice sent to him by the Department and the Tribunal’s s.359A letter, he makes it clear that he does not agree there was the non-compliance as described in the notice.

31. The claims or reasons the applicant has provided in his both written responses are essentially these:

    ·He gave correct answers in the (onshore) visa applications made on 23 January 2020 and 8 January 2021

    ·He has no criminal record and has never been arrested in Taiwan before he departed (on 23 January 2019)

    ·A Taiwan Police Criminal Record Certificate issued in his name, dated 23 January 2019, declares no conviction record for the applicant in Taiwan

    ·He could not have left Taiwan if he was the subject of an arrest warrant

    ·He has a good citizen certificate issued in Taiwan

    ·He has never received a notice from the police or any authority in Taiwan about the warrant and claims it could be an administrative error

    ·The first time he became aware of the outstanding arrest warrant was after he received the visa cancellation decision

32. The Tribunal has considered the applicant’s response to both the Department’s s.107 notice sent to the applicant on 7 September 2021 and the s.359A letter relating to the non-declaration of the matter of the Taiwan 2018 arrest warrant.

33. The applicant has provided duplicate copies of the 23 January 2019 Taiwan Police Criminal Record Certificate, dated 23 January 2019.  It declares no convictions, but is silent as to the existence of any charges or arrest warrants.   The translated copy of the document was issued by the Taoyuan Police Department Taiwan, Republic of China, No. H10801B03772. 

34. The applicant has consistently asserted since the s.107 notice was given to him, and he continues to assert, including in his statutory declaration sworn 20 November 2021, that he was not aware of any arrest warrant in Taiwan until he received the s.107 notice, dated 7 September 2021.  It is reasonable to think, if the applicant realised, as he says he did when he received the notice from the Department, that there is an outstanding warrant Taiwan, and that he considers it to be some kind of administrative error or mistake due to the negligence of the police department in Taiwan, that he may have provided the Department and/or Tribunal with evidence that this is the case.  Or, if he genuinely believes that there has been such a serious administrative error, some evidence of attempts he made to clear it up; or reasons why he did not take any steps to clear up the mistake or error. 

35. On the evidence, the applicant appears to have left Taiwan after the arrest was raised.  He claims he could not have left Taiwan (by a flight on 23 January 2019) if there was a warrant for his arrest.  The applicant has provided no evidence that is informative as to how people who the subject of arrest warrants are monitored or dealt with by Taiwanese authorities at an international border.  On the facts, there was an arrest warrant issued in 2018 in his name and in January 2019 he boarded an international flight out of Taiwan.  So while it seems to be a logical suggestion that someone shouldn’t be able to leave Taiwan if there is an outstanding warrant for their arrest, in this case the facts indicate that the applicant did leave the country in such circumstances and there is insufficient probative evidence to validate the applicant’s claim that he ‘could not’ have left Taiwan when he did. 

36. The applicant departed Taiwan on 25 January 2019 and arrived in Perth, Australia the next day.

37. Two statutory declarations have been provided by Andy Liu (Yueh-Hung Liu):

    a.A letter on PT Pro Express Pty Ltd letterhead, dated16 September 2021 – Mr Liu was the Director of PT Pro Express Pty Ltd, had known the applicant for nearly three years and includes that he considers the applicant to be reliable, honest, trustworthy and helpful.

    b.A statutory declaration, sworn on 5 November 2021 – Mr Lieu declares he is the manager of West Link Connect Pty Ltd and that the applicant was one of their employees from 30 May 2020 to 28 November 2020, and that he worked on a casual basis for no less than 35 hours a week for $24.36 an hour.

38. In the letter dated 16 September 2021, Mr Liu states that ‘based on his current situation, we feel helpless for him’.  In neither the letter, or the statutory declaration sworn in November 2021, does Mr Liu indicate he is aware of 2018 arrest warrant or drug charge in Taiwan.  It is acknowledged that Mr Lieu expresses his opinion that the applicant is reliable, honest, trustworthy and helpful.  However, little weight is given to the evidence because the Tribunal is not satisfied that Mr Liu is in possession of the facts and circumstances surrounding the reason for the applicant’s visa cancellation.

39. Having been put on notice that the Tribunal places significant weight on the recorded communications on the Department file between the Australian and Taiwanese national police agencies that there is a warrant for his arrest in Taiwan, the applicant has responded by denying any knowledge of an arrest warrant, but he has provided no probative evidence that there is not one.  It is acknowledged that the applicant has provided a TNPY certificate dated 23 January 2019 that certifying no arrests and that he claims that he could not have left the country if there was a warrant for his arrest. 

1. 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?

2. 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).

3. 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:

   ·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.

4. The Tribunal may also have regard to 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.

5. In the applications, where the question was asked, ‘Has any applicant ever been the subject of an arrest warrant or Interpol notice?’ and the applicant answered, ‘No’, the correct answer is ‘Yes’.  There is no information before the Tribunal that indicates the applicant has provided a bogus document.

6. The Tribunal has made a finding that the applicant’s answers in his 2020 and 2021 visa applications stating that he is not subject of an arrest warrant was incorrect information given by him.  The Tribunal is satisfied that the visa was based, partly, on the incorrect information relating to the arrest warrant.

7. The applicant was invited to comment on or respond to the circumstance of the 2018 Taiwan arrest warrant on two occasions; once by the Department in the s.107 notice on 16 September 2021 and by the Tribunal in a letter sent on 21 October 2021.  He has maintained that he was not aware of the arrest warrant until he received the s.107 notice and, in response to the Tribunal, speculated that the arrest warrant may be a mistake or error caused by the negligence of the police.

8. The Tribunal is not persuaded by the applicant’s denial of knowledge of the arrest warrant, until the Department informed him of it in September 2021.  On this basis, the Tribunal is not satisfied that the applicant, as he claims, was answering truthfully at the time he gave the answers in the applications, or that that there were circumstances beyond his control that resulted in the incorrect answer being given.

9. The applicant was born in 1994 and has resided in Australia on working holiday visas from January 2019 to 22 September 2021.  He is now 27 years of age and has resided in Australia for about two and a half years.  He has resided in Australia for a relatively short period of time.  While it is likely that he has made some friends here, it is equally reasonable to think that during the time he resided offshore, up until the age of 24, he also had friends he may have stayed in contact with, and family, in his home country, or who he could resume contact with if he returned to his home country.   

10. The applicant claims the arrest warrant is a mistake or error, which is not to say he denies there is one, just that he claims he did not know about it until September 2021.  The Tribunal has made a finding that, essentially, there is an arrest warrant for the applicant relating to drug charges in Taiwan and that the applicant gave an incorrect answer about this.   Because it appears there will be an arrest warrant for the applicant if he returns, or is removed to, his home country, this may result in him suffering some degree of hardship.  It is a criminal matter that will run its course through the Taiwan legal process.  While the process itself may cause the applicant some degree of hardship, if he is not convicted the hardship he may suffer is likely to be significantly less than if he is convicted.  Some weight is I given in favour of setting aside the cancellation, relating to the hardship the applicant may suffer if he returns, or is returned to, his home country.

11. There is no reliable evidence before the Tribunal that the applicant has been non-compliant with any of his visa conditions or that there have been any breaches of the law since the non-compliance.  The non-compliance relating to the incorrect answers occurred in January 2020 and January 2021.  The Tribunal considers this to be a relatively short period of time, on the basis of the applicant’s age, for reasons given earlier.

12. The Tribunal has considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act and is satisfied that the applicant cooperated with the Department, provided his contact details and communicated with them in relation to the s.107 notice.

13. There is no claim made, nor has any evidence been provided, that indicates the applicant has made any contribution to the Australian community, other than doing paid work and being considered helpful by Mr Liu.   

    Referring to Departmental policy, the Tribunal has considered the following matters:

    Consequential cancellations under s.140 of the Act and any children affected

14. The Tribunal is satisfied that there will be no consequential cancellations under s.140 of the Act on cancellation of the applicant’s visa.  On the evidence, the applicant has no children.

    Applicant’s removal in breach of Australia’s non-refoulement or family unity obligations

15. If the applicant becomes unlawful as a consequence of cancellation, he would be liable to detention and removal.  There are limited options available for him to make another application for a substantive visa in these circumstances. 

16. The applicant has not claimed that he will suffer any hardship if he has to return to Taiwan.  Any hardship the applicant may suffer if he is removed and returned to Taiwan, on the basis of the arrest warrant relating to the 2018 charges, is given minimal positive weight in favour of setting aside the cancellation.  It is reasonable to think that if there is no arrest warrant, as the applicant claims, that there would be little if any hardship experienced by him, or if there is an arrest warrant, that will be dealt with under laws of his home country.  There is no claim made, nor any evidence provided, that Australia would be in breach of it’s international obligations if the applicant was returned to his home country.

    Mandatory legal consequences

17. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia.

18. The applicant would also be affected by section 48 of the Act.  He would have only limited available for an onshore substantive visa application.   Public Interest Criterion 4013 may prevent him from being granted particular temporary visas for a specific period.  However, he may be eligible to apply for a Bridging E visa to enable him to remain onshore temporarily until he can make departure arrangements.

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.

    Jennifer Cripps Watts
    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.