Lohan (Migration)

[2021] AATA 5431

Lohan (Migration) [2021] AATA 5431 (8 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gary Patrick Lohan

CASE NUMBER:  2108626

HOME AFFAIRS REFERENCE(S):          BCC2020/2272851

MEMBER:Meena Sripathy

DATE:8 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 08 December 2021 at 11:18am

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 had not worked for three months in specified work in regional Australia – decision under review affirmed

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

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the visa holder (the applicant) provided incorrect answers in his Working Holiday (Extension) visa application thereby not complying with s101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa be cancelled.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 7 December 2021 to give evidence and present arguments. The applicant’s newly appointed representative was present with him at the hearing.   

5. The Tribunal exercised its discretion to hold the hearing by video hearing 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. 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 (NOICC) was sent to the applicant on 17 May 2021 to the last known addressed provided by the applicant to the Department.  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 first Working Holiday visa (subclass 417) in his application for a Working Holiday (Extension) (subclass 417) visa lodged and granted on 11 August 2020.

10. The notice provided particulars of the allegedly incorrect information given by the applicant being the reference to employment with Pearl Recruitment Group in Newman Western Australia (postcode 6753) in the period 2 March to 5 July 2020 for 90 days; and his declaration that he had completed 3 months of specified work as the holder of a first working holiday visa.

11. The NOICC advised that employment verification checks conducted by the Department with Pearl Recruitment Group, the business registered under ABN 75145084046, to verify the employment claims resulted in being advised by Pearl Recruitment Group on 03 September 2020 that the applicant never worked at their business.

12. The delegate considered on the basis of this information that the applicant had provided incorrect answers in support of his Working Holiday (Extension) visa application and did not comply with s101(b).

13. 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.

    Non-compliance described in the s.107 notice

14. 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 s101(b) as follows: that the applicant provided incorrect information in the application for a Working Holiday (Extension) visa when he

    ·    answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’;

    ·    provided details of claimed employment with Pearl Recruitment Group, at the section of the application form titled ‘Details of Specified Work Undertaken’

15. On 11 June 2020 the applicant responded to the NOICC by email as follows: I have received notice of intention to cancel visa (subclass 417).  Due to covid-19 and inter state border closures, and living in Sydney as it was a hotspot for coronavirus cases at the time. it became virtually impossible to complete regional work for me to get my 2nd year subclass 417.

16. On 28 June 2021 the delegate of the Minister made a decision to cancel the visa, having considered the applicants’ response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa.  

17. The applicant appealed the decision to cancel his visa to the Tribunal on 1 July 2021.

    Evidence before the Tribunal

18. On 7 December 2021, the Tribunal received the following from the applicant via his newly appointed representative:

    ·Statement from the applicant acknowledging that he used an agent to lodge his application.  He provided further details about his circumstances in this period including attempts to seek regional work, and stress he was undergoing at the time.  He refers to suffering anxiety and trouble sleeping and that he was making bad choices at this time. He refers to the hardship that cancellation would cause him and the contributions he is and has been making since being in Australia.

    ·Supporting documents including:

    -Applicant’s Passport 

    -Ireland National Craft Card 

    -Advanced Certificate in mechanical Automation and Maintenance Fitting

    -Letter from Paul Kelly, PK Metal Fabrication and Welding

    -Letter from Peter Thomson, Industrial Maintenance & Fabrications 

    -Letter from Stephen Tormey, Michael Cusack’s Sydney GAC

    -Letter from Daragh Keane

    -Facebook Messenger screenshots for attempted work

    -Email screenshots for attempted work

    ·Submissions from the applicant’s legal representative.

19. At the hearing the applicant provided evidence about his current circumstances, background and the circumstances that gave rise to the non compliance.  He lives in Mascot with a friend, Daragh Keane, known to him from Ireland. He has been at this address with this person since around December 2019.  Prior to that he lived with another person from August to December 2019. He is presently working with a company called IMF. He has been with this company for the past 6 months.  Prior to that he was with PK Metal Fabrication from the time he arrived in Australia until June 2021.  The Tribunal asked why he left that job. He said he took this job for the opportunity it offered him.  When asked if this was after his visa was cancelled he said the change in employment occurred around that time but he cannot recall precisely. He had a period of about two weeks between his visa being cancelled and obtaining the bridging visa with work permission. The Tribunal asked if his present employer was aware of his visa issue, noting that the letter from Mr Thomson does not mention it. He said he is certain he told them and does not know why it was not mentioned.  

20. The applicant confirmed he has a sister in Australia.  She came here around 2 years ago also on a Working Holiday visa.  She originally came to Sydney and then moved to Perth with a partner she met here. Apart from that, the remainder of his family is in Ireland. He has parents and one younger sister there. They all live in Galway.  Prior to coming to Australia he lived with his mother and sisters.  He worked as a fitter, after completing his apprenticeship between 2013 to 2017.  He was employed from 2017 until 2019 when he came to Australia.

21. He came to Australia on 22 August 2019. The plan was to see what it was like here, travel and get work.  After he arrived, he liked it.  He found work within a few days of arrival through a recommendation from a friend.  He was aware of the requirement to do regional work for three months and started looking around in January.  In the end he did not end up doing any regional work. 

22. The Tribunal asked the applicant how he came to lodge his second Working Holiday visa application.  He said he had a few possible jobs lined up but then COVID 19 intervened and the opportunities fell through.  A friend of a friend told him about a guy who could get him a visa.  He was given an email address and he communicated to this person, providing them with the information they requested and he paid the money asked for. He is not certain he saw the application before it was lodged. The Tribunal asked if he knew that false information would be provided given he had not completed the regional work as required. He agreed he knew this.

23. The Tribunal asked the applicant if he contacted the Department to discuss his situation. He said he did not.  When asked why he said he was in a panic and made a crazy decision which he now knows was wrong.  The Tribunal asked if he sought professional advice.  He said he did not.

24. The Tribunal noted he referred to experiencing anxiety and trouble sleeping in his statement. It asked if he has ever sought professional assistance for that here or in Ireland. He said he saw someone in Ireland in 2019, in the context of a relationship breakup.  He was given sleeping tablets. He was not regularly using these when he came to Australia. He has never seen anyone for mental health issues since coming here.

25. The applicant acknowledged that he never did regional work and the information in his visa application was incorrect.  He concedes that the non compliance occurred as alleged in the NOICC.

26. The Tribunal discussed the prescribed matters in r.2.41 relating to the discretion to cancel with the applicant. Details of further relevant evidence he gave is included in the discussion below.

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

27. 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 s101 of the Act as set out above.

28. The applicant acknowledged in his response to the NOICC and evidence to the Tribunal that incorrect information about undertaking specified work was provided in his Working Holiday extension application.  On the basis of the evidence of the verification undertaken by the Department with Pearl Recruitment Group 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.

    Should the visa be cancelled?

29. 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).

30. 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).

31. The Tribunal below discusses the prescribed circumstances set out in r.2.41 of the Regulations, taking into consideration the submissions and evidence put forward by and on behalf of the applicant.

32. The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

33. The applicant conceded that he was not employed by Pearl Recruitment Group as stated in the application and he has not undertaken three months of specified work as indicated in the application.

34. The Tribunal considers this is a significant factor weighing in favour of cancellation in this matter.

    ·     the content of the genuine document (if any)

35. There is no allegation relating to a genuine document. Therefore, this factor is not relevant in the Tribunal’s consideration of whether the visa should be cancelled.

    ·     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

36. The visa applicant was required to meet the criterion relating to specified work in regional Australia for a period of three months to be granted the visa.  The visa applicant confirmed at hearing that he did not undertake any specified work in regional Australia during his first Working Holiday visa as stated.  The applicant acknowledged when it was put to him by the Tribunal, that had the correct information been provided, that he had not completed three months specified work in regional Australia, the visa would not have been granted. 

37. The Tribunal finds the incorrect information was relied on by the delegate to grant him the visa. It finds that if the correct information was provided, he would not have met this criteria and the visa would have been refused.  The Tribunal considers this is a significant matter weighing strongly in favour of cancelling the visa.

    ·     the circumstances in which the non-compliance occurred

38. In his written statement submitted prior to the hearing the applicant referred to going through a lot of stress during this period of his life, that he suffered from anxiety and had trouble sleeping.  He stated that he made bad choices that led him to this.  During the hearing the Tribunal explored this further with the applicant, noting that he had not submitted any evidence of professional assistance he had received relating to these conditions.  He confirmed he has not sought any professional assistance for anxiety or any other mental health condition since arrival in Australia. He last saw a health professional in the context of a relationship breakup in Ireland in 2019, who prescribed him sleeping tablets but he was not taking those in Australia. The applicant has given evidence that he has been gainfully employed in Sydney since his arrival and has not mentioned any other significant issue or event experienced in Australia that may have had an adverse impact on his mental health. On the contrary, he indicated that since coming here he liked the country and has made a good life and would prefer not to return to Ireland.  The Tribunal also notes, and takes into consideration the considerable delay in providing any explanation for the non compliance.  In his response to the NOICC to the Department he made no mention of any mental health issues or explanations.

39. Having regard to all the evidence before it, including his oral evidence at the hearing, the Tribunal does not accept the applicant’s explanation that he was going through stress and suffered from anxiety justifies his decision to engage an agent to lodge an application containing incorrect information to obtain a visa. There is no evidence before the Tribunal to support that he suffered any mental health condition of sufficient seriousness that would have impaired his judgement, and the evidence of his conduct and activities since arrival in Australia given to the Tribunal is not consistent with this claim.   

40. The Tribunal acknowledges that the applicant was candid and contrite at the hearing, and accepts that, in hindsight, he knows he made a poor and bad decision and takes responsibility for it.  It also accepts that the circumstances of the COVID 19 pandemic and inter/intra state border and travel restrictions would have impacted on the applicant’s ability to secure work in regional locations in this period and he has provided some evidence of his attempts to secure specified work in this period. However, it also considers significant, and places weight on, his failure to approach the Department for advice or seek any professional advice about his options in the evolving circumstances of the pandemic.

41. Having regard to the evidence, although the Tribunal doesn’t accept the explanation that he suffered mental health issues impairing his judgement, it gives the circumstances arising from COVID 19 pandemic some weight against cancellation in its consideration of the circumstances in which the non compliance occurred. 

    ·     the present circumstances of the visa holder

42. The applicant is working full time and has been working continuously since his arrival in Australia in August 2019. He is employed as a skilled worker and his occupation is in demand in Australia. He claims that a decision to cancel his visa will cause him hardship because he would prefer not to have to return home to Ireland. He told the Tribunal he has made a network of friends here, he likes it, he is a highly skilled worked and his skills are needed here. 

43. The Tribunal put to the applicant that but for the non compliance he would not have been granted the visa, and in any event the period of the Working Holiday visa he was granted expired in August 2021 and in these circumstances he would have had to consider returning home anyway. The applicant made no comment about this.  The Tribunal asked if he had any offers of sponsorship by an employer to date.  He said he does not have a definite offer but believes his previous employer would offer it to him if he approached him. The Tribunal noted that he was also gainfully employed as a fitter in Ireland prior to coming to Australia. He agreed that he was, but the circumstances in Ireland now are different to when he left in 2019.

44. The Tribunal accepts that the applicant is gainfully employed here now and that his skills are in demand in Australia at the present time.  However it also takes into consideration that he has only been able to work in this job because he sought review of the decision to cancel his visa and the time taken for the review process.  Therefore, while acknowledging that the applicant is employed in an industry where his skills are in high demand and his employment has benefited his employer, that fact that he has only been able to do so because of the non compliance detracts from the favourable weight it would otherwise give this factor against cancelling the 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

1. The Tribunal notes that the applicant did not come forward himself to correct the incorrect information on which his visa was granted.   The non compliance was detected by the Department as a result of its verification with the employer. When issued the NOICC in May 2017 the applicant gave a very limited response in June 2021, acknowledging only that he had not completed regional work due to the COVID 19 situation.  He lodged an application for review to the Tribunal on 1 July 2021, but chose not to provide any further information in support of his review until the morning of the hearing. When asked about this delay he explained that it took time for him to compile the supporting documentation. His representative told the Tribunal he was not engaged until the previous day and provided the submissions as soon as possible.  The Tribunal notes the applicant was on notice of the allegation of non compliance since May 2021 and had substantial time to prepare since then.

2. Having regard to all of the above, the Tribunal considers the subsequent behaviour of the applicant does not weigh against cancelling the visa.

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

3. The applicant told the Tribunal no other allegations of non compliance have been made and there is no adverse information before the Tribunal to indicate other known instances of non compliance. 

4. The Tribunal gives this some weight against cancellation of the visa.

   ·     the time that has elapsed since the non-compliance

5. The Tribunal observes the visa was cancelled on 28 June 2021, having been granted on 11 August 2020 and therefore not a significant amount of time has elapsed since the non compliance.  Since then the applicant has had a further six months in Australia awaiting this review process.  In this period the applicant has continued working and has maintained his lifestyle in Australia. 

6. The Tribunal finds this factor does not weigh in favour or against cancellation and considers it neutrally.

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

7. The applicant told the Tribunal he has had no issues with the law since the non compliance and there is no information before the Tribunal to suggest otherwise. 

8. The Tribunal gives this factor some weight against cancellation of the visa.

   ·     any contribution made by the holder to the community.

9. The applicant has submitted that he is an active member of the Michael Cusack’s GAC (Gaelic football) and volunteers to coach and manage the women’s team for the past two years and more recently helps to coach the newly formed juveniles team.  He provided a reference from Stephen Tormey, Chairman Michael Cusacks in support. He also referred to his involvement in a cryptocurrency group and advice he has given to people regarding Bitcoin that has benefited them financially.

10. The representative reiterated that the applicant has been gainfully employed as a vitally needed skilled worker on significant capital projects in Sydney in recent months and his continuing stay in Australia will contribute, and benefit to the NSW economy.

11. The Tribunal accepts that the applicant has made contributions with his community volunteering and has been contributing by way of his skills and employment and gives this factor some weight against cancellation of the visa.  

    Other matters

12. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

13. The Tribunal has considered the legal consequences of cancelling the visa, which will lead the applicant to become an unlawful non citizen and potentially subject to detention and removal unless granted a Bridging visa or he voluntarily departs. The operation of s 48 of the Act would limit the kind of visas the applicant can apply for in Australia and any future visa application may also be affected by PIC 4013 which may prevent him from being granted certain kinds of visas for three years since the date of cancellation.

14. The Tribunal notes however the recent passage of the Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021, effective from 13 November 2021, which amended r.2.12 of the Migration Regulations to include certain skilled visa among the limited applications that can be lodged by persons affected by s48 of the Migration Act[1] and observes that as a result of this recent amendment the applicant have certain onshore visa options even if his visa is cancelled.  When put to the applicant and his representative during the hearing, the representative acknowledged this but referred to the possible impact of PIC 4013 for future applications.  The Tribunal observes that PIC 4013 does not appear to apply to any of the three specified skilled visas referred to in the above regulation.   In any case, the Tribunal considers that the outcome of any future visa application, whether onshore or offshore, is a matter of speculation and it is not inclined to give this any weight in its consideration of the cancellation. 

    [1] Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021

15. The Tribunal asked the applicant at hearing if there are any other relevant matters, including hardship to him or any family members that he wanted it to consider.  He referred to his written statement where he mentioned the hardship to his parents if he were to return, as they have already experienced significant difficulties due to the pandemic in Ireland and would struggle to support him were he to return.

16. The applicant confirmed to the Tribunal at hearing that he does not provide financial assistance to his family in Ireland from here. On the available evidence the Tribunal is not satisfied that the applicant’s return to Ireland will lead to financial or other hardship to his family members. Having regard to his age, skills and work experience there is no reason to believe he is not capable to supporting himself independently as he did prior to coming to Australia.  The applicant has provided no other evidence to suggest hardship that would be suffered by himself or family members were his visa to be cancelled. 

17. The representative submitted that although the applicant’s skills are included in the Skilled Occupation List, and he would be eligible to apply for several categories of skilled visas, a cancellation decision may push back his prospects for successful migration by several years.  The Tribunal has considered this but finds the outcome of any future visa application is pure speculation and it gives this no weight in its considerations.  

18. 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 cancelation.  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 when he engaged the agent to lodge his visa application.  The Tribunal accepts that the circumstances of COVID impacted his chances of securing specified work and is prepared to accept that he made some attempt to obtain specified work in the relevant period. However it rejected his explanations that he suffered mental health issues at the time to explain his poor decision to engage an agent to provide incorrect information to secure a visa rather than approach the Department or professional advice. The Tribunal acknowledges the applicant is presently gainfully employed however this is subject to having a visa allowing employment and even if the visa is not cancelled it would by now have expired, leaving him without permission to work.  It acknowledges that the applicant has made contributions to the community by his ongoing skilled employment, and volunteering with a community sports club, and also takes into account that there is no information before it of any other non compliance or other breaches of the law.  The Tribunal’s also considered other relevant matters including the consequences of cancellation for his future visa prospects and hardship to the applicant or his family members. Ultimately, after carefully weighing all of these matters, the Tribunal concludes the factors in favour of cancelling the visa outweigh those against cancellation and the Tribunal concludes 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.

    Meena Sripathy
    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.