Morris (Migration)

[2022] AATA 3138

Morris (Migration) [2022] AATA 3138 (2 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Emily Rose Morris

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2119257

HOME AFFAIRS REFERENCE(S):          BCC2020/2706205

MEMBER:Mark Bishop

DATE:2 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 02 August 2022 at 2:57pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – COVID19 lockdown travel restrictions – medical treatment – employment in a critical sector – previous regional work – mental illness – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 359
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133    

statement of decision and reasons

application for review

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

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information in the Working Holiday (Extension) visa application as she did not work at the named employer. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 2 August 2022 to give evidence and present arguments. The applicant provided a copy of the decision record to the Tribunal.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

8. 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 the following section of the Act:

   Section 101 Visa applications to be correct:

   ·A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.

   ·The applicant provided employer detail, employer business and address, work conditions and period of employment.

   ·The department initiated employment verification checks with The Trustee for Viticultural Services Unit Trust, trading as Quenby Viticultural Services, the business registered under ABN 49457432242, to verify the visa holder’s employment claims. On 12 November 2020, Quenby Viticultural Services contacted the Department and advised the visa holder had never worked at the business.

9. The department made a finding the information provided by the applicant was incorrect, as verification checks undertaken by the department established the visa holder never worked at the business, Quenby Viticultural Services. Therefore the visa holder did not undertake six months specified work in regional Australia. 

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

    Should the visa be cancelled?

11. 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).

12. 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 reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

13. In response to the NOICC (Doc ID number 9270240 ) the applicant provided a written response (Doc ID number 9270241). In summary the applicant advised as follows:

    ·She had between January 2020 and January 2021 to complete the six months of regional work required for the third Working Holiday visa. She had returned to Britain in December 2019 to visit, and was low on funds upon her return to Australia. Her intention was to find employment and a place to live in Sydney, NSW for the first months of her visa, then begin her regional work around May or June of 2020;

    ·Beginning in April 2020, she began to search for regional work. Due to COVID and border closures, it was very difficult;

    ·On 20 June 2020, she experienced a medical episode, resulting in admittance to the emergency department of the Prince of Wales Hospital. She did not recover fully from this illness until late August 2020, at which point she was too far into her second visa to be able to complete the required six months work to qualify for the third Working Holiday visa;

    ·She reached out to friends to discuss the possibility of a medical exemption for the third Working Holiday visa, but the responses she received were negative;

    ·She was advised by a friend of an individual who was assisting people applying for second or third Working Holiday visas who had not completed the regional work. She contacted this person, provided her personal details, and paid him $2000. He advised he would apply on her behalf, and a week later, she received the grant of the third Working Holiday visa.

14. In response giving reasons as to why the visa should not be cancelled the applicant advised (in addition to the summary provided in paragraph 13 above) as follows:

    ·Her dream is to live in Australia. She is aware she should have approached the Department with her personal circumstances and requested additional time to complete the work requirements;

    ·Prior to receiving the NOICC, she was intending to apply for a 408 COVID visa, as she works in a critical sector. She is working for the Royal Australasian College of Physicians (RACP), and her contract has been extended on multiple occasions, with a current plan to extend it until December 2022, as well as a promotion to ‘Executive Officer’;

    ·During her time in Australia, she has endured the bush fires, floods, and COVID-19. It has limited her ability to explore the country, and she has so far only visited Queensland (Qld) and New South Wales (NSW). The thought of leaving Australia without travelling further devastates her;

    ·She considers Australia her home – she has a job she enjoys and excels at; a supportive friend group; and a boyfriend who is employed in the construction industry. Their intention is to settle in Australia;

    ·The only reason she did not complete the work requirements was due to illness, and she is now in good physical health and prepared to undertake the six months’ regional work which was required for the grant of the visa;

    ·The COVID-19 border closures have meant no Working Holiday makers have been able to enter Australia since early 2020, which has had a detrimental impact on the agricultural sector and created a need for regional workers;

    ·She is aware of a new Working Holiday visa coming into effect from March 2022, and is willing to complete the six months work on this visa if it is an option for her. She will provide monthly evidence and any references necessary;

    ·She wishes to contribute to the critical sectors which have been hugely impacted by COVID-19 and feels she can make a positive impact to society after the pandemic.

15. The applicant also provided considerable supporting documentation relating to relevant medical matters and employment.

16. On 31 July 2022 the applicant provided the Tribunal with a written submission plus supporting documentation. The written submission outlined the following:

    ·Determination issues.

    ·Working Holiday Visa background.

    ·The applicant advised the correct information is she was not employed by Quenby Viticulture Services as set out on the application for a Working holiday Visa Extension. The applicant conceded that the grant of the Working holiday Visa Extension was based on the incorrect information provided.

    ·The applicant reported an array of health issues (see paragraph 18 of written submission).

    ·The applicant previously undertook regional work. The applicant set out a range of complaints.

    ·The applicant advises there were bushfires in close proximity to the farm. She fled the farm. She has been suffering Post-Traumatic Stress Disorder (PTSD as a result of the abuse and poor working conditions.

    ·Failure to comply with visa conditions occurred in the context of the Covid-19 pandemic. She struggled to find employment.

    ·The applicant also suffers from chronic anxiety and depression which was exacerbated by her experience while undertaking regional work, the Covid-19 pandemic, financial hardship, difficulties securing employment and fears for her family back home.

    ·The adverse behaviour of a person who affected by mental illness and whose mental health contributed to his offending in a material way should be regarded as less culpable than an ordinary person so unaffected.

    ·Friend of a friend recommendation re an agent, applicant engagement with agent inclusive of email engagement, completion of a questionnaire, bank transfer of requested payment, applicant denial of detail and content of application, lack of face to face contact and applicant contact with agent by email only.

    ·Applicant advises her decision making severely impacted by her poor mental health. Her conduct was an act of poor decision making. The applicant claims not to be aware of Covid-19 related visa options. The applicant accepts she did not take the adequate level of responsibility for filling in her own application.

    ·The applicant has lived in Sydney for approximately 3 and a half years. She has strong personal and professional relationships. She is currently employed full time. She is employed as a booking clerk at the RAACP.

    ·The applicant is currently in a long-term de facto relationship. She has signed a joint lease with her de facto partner. Her de facto partner has been offered sponsorship by his employer and hence intends to remain in Australia. The cancellation of the applicant’s visa would likely lead to the breakdown of this relationship. She will face difficulties finding employment in the UK. Her father suffered from cancer and she would not have the support of family in providing accommodation. If the visa is cancelled the applicant will not have the support of her therapist.

    ·The applicant contributes to the community by virtue of her continuing employment, payment of taxation and participation and financial contribution to various charities.

17. The applicant provided documentary evidence in support of the detail summarised in paragraph 16 above. That documentation outlined the following:

    ·Statement of support from de facto partner advising of his future intent to apply for a student visa, her ‘lie’ on her 3^rd holiday visa application was judgement impaired, mental and physical health problems from June 2020, he is her main support, her parents have separated, mental health sessions, his plan to remain in Australia, applicant departure from Australia would impact him, employment as executive officer at the RAACP and applicant regret for her decision making.

    ·Statement of support from former fellow worker that outlines applicant work isolation and workplace harassment by her boss, many instances of sexual assault on applicant by her employer (touching her bum and breasts), boss wife anger and harassment of applicant, hostel manager strong friendship with boss wife and consequent rudeness and harassment of hostel manager wife to applicant, consequent panic attacks on the part of the applicant, continuing molestation on the part of the boss, reports of same to hostel manager and response of further abuse and harassment.

    ·Statement of ‘Engage Counselling’ that outlines lengthy privately funded ongoing therapy (14 sessions) with the applicant with a diagnosis of Complex Post-Traumatic Stress Disorder (PTSD) variant Complex Trauma. The applicant “displayed dissociation, general anxiety, paranoia, panic, and an overbearing negative sense of self. Her sympathetic nervous system is primed to hyper or hypo arousal, resulting in the reactive and illogical behaviour in evidence.” The applicant “revealed a pattern of sexual harassment and abuse at her initial farm work placement.” Ongoing statement that advises “It is likely that her behaviour is a result of her Complex Trauma (PTSD) state recurring due to the stressor of her life at that stage, in particular the sexual harassment. Ms Morris was not able on the occasion in question able to easily or quickly control her behaviour, and was in a state of reactivity, fear, and impulsivity. She would not have been capable of making sensible or logical decisions and would have struggled to be aware of the consequences of her actions, something she now regrets.” Details of therapy provided. Conclusion that the applicant “has made significant progress in therapy, and will continue to improve.” Counsellor conclusion that “It is my opinion that, if she were to stay in Australia, the result would be a valuable and productive community member, one who has recovered from the depredations of her past”

    ·Series of detailed medical reports relating to ongoing treatments diagnosis and prognosis relating to each condition.

    ·Statements of support and promotion from RACP

18. 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.

19. The Tribunal is also required to consider both the prescribed matters, where relevant or indicate where not relevant; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:

    ·whether there would be consequential cancellations under s 140.

    ·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

    ·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

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

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

21. The Tribunal now turns to  consider the above as follows:

    (a) the correct information

22. The Department initiated employment verification checks with The Trustee for Viticultural Services Unit Trust, trading as Quenby Viticultural Services, the business registered under ABN 49457432242, to verify the visa holder’s employment claims. On 12 November 2020, Quenby Viticultural Services contacted the Department and advised the visa holder had never worked at the business.

23. The Tribunal gives this aspect some weight in favour of cancelling the visa.

    (b) the content of the genuine document (if any)

24. No genuine document is being considered.

    (c) 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

25. The visa holder’s employment details related to her regional work experience, was central to the grant of her Working Holiday (Extension) visa. As the Tribunal has determined the visa holder provided incorrect information regarding his employment at Quenby Viticultural Services her application for the Working Holiday (Extension) visa, the Tribunal considers the delegate made the decision to grant the visa based, in part, on this incorrect information, and the visa holder may have received an immigration benefit to which she may not have been entitled.

26. The Tribunal gives this consideration some weight in favour of cancelling the visa

    (d) the circumstances in which the non-compliance occurred

27. The applicant provided a response to the NOICC. The response is set out at paragraphs 13 and 14 above and the delegate’s summary is set out in paragraph 14 above. The Tribunal has reviewed this detail. It sets out the visa holders employment in Australia, the lodgement  of the visa application, her non-recourse to a registered migration agent, emotional, mental, physical and sexual harassment employment based work detail and income levels in later employment. The Tribunal has reviewed the statements of the applicant’s partner and the detailed mental health/counselling report provided by the applicant. The Tribunal is satisfied (see dot point 3 in  paragraph 17 above) the applicant suffered a lengthy period of sexual harassment during her period of employment in regional Australia. This sexual harassment was just that. Unwelcome, uninvited, continuing, physically offensive, mentally distressing, emotionally oppressive and reflected a domineering predatory form of behaviour by an employer in a position of authority supported in his actions by family, friends and business colleagues.

1. The Tribunal gives this aspect significant weight in favour of not cancelling the visa.

   (e) the present circumstances of the visa holder

2. As outlined above the applicant is a contributing member of the community. She is self-aware, has sought significant assistance at  not insignificant cost, valued by her employer and an active participant in a range of worthwhile causes and initiatives in Sydney.

3. The Tribunal gives this aspect significant weight in favour of not cancelling the visa.

   (f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958

4. There is no information before the Tribunal to indicate the visa holder attempted to contact the Department to inform them of the incorrect information. There is no information before the Tribunal to indicate the visa holder at any time sought to obtain correct information.

5. The Tribunal gives this aspect some weight in favour of cancelling the visa.

   (g) any other instances of non-compliance by the visa holder known to the Minister

6. There are no other known instances of non-compliance by the visa holder.

7. Temporary visa holders are expected to comply with visa conditions at all times.

8. The Tribunal give this consideration neutral weight concerning possible cancellation of the visa.

   (h) the time that has elapsed since the non-compliance

9. As outlined above the visa holder has maintained well-paid employment until the current time. A little less than 2 years from application lodgement date has elapsed since the non-compliance which the Tribunal does not consider to be a significant amount of time. The Tribunal considers the period of time she has spent in Australia and the ties she may have do  mitigate the non-compliance, which is substantial. This is because the offensive incidents of harassment that occurred on a continuing basis directly relate to and derived from her employment in regional Australia. It is not surprising to the Tribunal that the applicant has been forced to undergo a lengthy period of counselling. It is to her credit that she has sought assistance in a planned and methodical way.

10. In evidence the visa holder outlined her employment history in Australia, the harassment or molestation that occurred on a farm in Queensland, her return to the UK, her return to Sydney, her attempts to gain work in regional NSW, her entry into a de facto relationship and the ongoing support from her partner over a period of 12 months before she was able to seek counselling arriving out of events in Queensland, the urgency, regularity and consistency of that treatment and her continuing recourse to her therapist at time of decision.

11. In that period of time from late 2019 until time of decision the applicant has been exposed to some harrowing experiences. The applicant has shown fortitude, discipline and demonstrated a willingness to act upon sensible advice to seek and retain professional assistance.

12. The Tribunal gives this aspect significant weight against cancelling the visa.

    (Note: there is no consideration (i) in the current legislation)

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches

13. There is no information before the Tribunal to indicate the visa holder has breached any laws since the non-compliance. Temporary visa holders are expected to conform to the law at all times.

14. The Tribunal gives this aspect no weight against cancelling the visa.

    (k) any contribution made by the holder to the community

15. The applicant outlined in some detail her active engagement within the community sector both as a contribution and volunteer to a range of causes.

16. The applicant is in a long term de facto relationship. She receives considerable assistance from her partner. This assistance has been given in the most difficult of circumstances and has been considered, practical and helpful. This assistance is a major cause of the applicant being able to ‘get back on her feet’ after a lengthy period of harassment. This contribution is significant.

17. The applicant is an adult woman in a long standing de factor relationship. She has responsible employment. She is valued by her employer. She has been promoted in her employment. Her family in the UK is remote and going through particular difficulties in that country. The Tribunal understands the applicant is well on the way to recovery and her continued engagement with supportive individuals and employers will provide necessary ballast leading to a full recovery.

18. The Tribunal gives these aspects significant weight against cancelling the visa

19. Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.

20. The Tribunal is not aware of any person’s visa who would, or may, be consequentially cancelled under section 140 of the Act.

21. As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

22. The visa holder has not applied for protection nor made any claims that returning to his home country would result in him suffering significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations if the visa were to be cancelled and the visa holder had to return to his home country. The applicant advised the Tribunal he does not have any children.

23. Furthermore, there is no information before the Tribunal to suggest the visa holder has any children in Australia who may be affected by a decision to cancel the visa. The Tribunal is  satisfied that should the visa be cancelled, this would not breach Australia’s obligations in respect to the International Convention on the Rights of the Child.

24. As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration.

    Whether there are mandatory legal consequences to a cancellation decision.

25. If the visa is cancelled, the visa holder 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, as he would no longer hold a valid visa.

26. A bar under section 48 of the Act will also be imposed, limiting the visa holder’s options to apply for further visas from within Australia. Furthermore, he will also be affected by Public Interest Criterion 4013, where he may be prevented from being granted certain types of visas for a period of three years from the date of visa cancellation.

27. The Tribunal gives this consideration neutral weight

    Any other relevant matters.

28. The Tribunal has given considerable weight to the allegations of sexual harassment. The Tribunal has given considerable weight to the matters set out in paragraph 17 above. The Tribunal has given considerable weight to the detailed oral evidence that corroborated and verified the written documentation provided by the applicant. The provision of this evidence has persuaded the Tribunal to make a finding not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

29. There are no other relevant matters for the Tribunal to consider.

    CONCLUDING PARAGRAPHS

30. 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 not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa

    Mark Bishop

    Senior 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.