Promsopa (Migration)

[2021] AATA 4129

Promsopa (Migration) [2021] AATA 4129 (10 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nongyao Promsopa

CASE NUMBER:  2016749

HOME AFFAIRS REFERENCE(S):          BCC2017/445586

MEMBER:Christine Kannis

DATE:10 August 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 10 August 2021 at 7:23am

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Federal Court remittal – ground for cancellation – incorrect information in previous visa application – failure to notify change in circumstances – relationship with the sponsor ceased before visa grant – ceased sharing a household – pregnant to someone other than the sponsor – consideration of discretion – grant of visa based on incorrect information – Australian citizen child – best interest of the child – close and regular relationship with both parents – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 109

Migration Regulations 1994 (Cth), r 2.41

CASES
DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184
MIAC v Khadgi (2010) 190 FCR 248
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273

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 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not inform the Department of a change in her circumstances. 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 is a national of Thailand. She entered Australia on 7 May 2013 holding a Subclass 309 Partner (Provisional) visa. She was granted a Subclass 100 Partner (Permanent) visa on 10 March 2015.

4. On 28 June 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she had not complied with s.104 of the Act. She did not respond to the NOICC and her visa was cancelled on 30 July 2018.

5. The applicant sought review of the decision and on 7 January 2019 the Tribunal (differently constituted) conducted a hearing after which it affirmed the decision.

6. The applicant sought review of the decision of the first Tribunal and on 11 February 2020 the Federal Circuit Court dismissed the application for review.

7. The applicant sought further judicial review of the decision and on 14 October 2020 the Federal Court of Australia set aside the decision of the Federal Circuit Court, quashed the decision of the first Tribunal and remitted the matter to the Tribunal to reconsider and determine the matter according to law. 

8. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

9. The applicant was represented in relation to the review by her registered migration agent.

10. 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

11. 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.

12. 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.

13. 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 NOICC issued under s.107 complied with the statutory requirements.

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

14. In support of her Partner visa application the applicant submitted a form in which she provided the following information.

    i.Sponsor’s personal details – Mark Potter

    ii.Is the applicant in a genuine and continuing relationship with the sponsor – yes

    iii.Do the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others – yes

15. At the end of the form the applicant signed a declaration that she would inform the Department in writing if she became aware of any changes in circumstances or any change relating to information she provided in or with the application, while being considered.

16. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 which says:

    Section 104:

    Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)  If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

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

17. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 in the following respects: the applicant did not inform the Department regarding changes to her circumstances, namely that her relationship with her sponsor had changed and there was no longer a mutual commitment to a shared life as a married couple to the exclusion of all others as evidenced by her becoming pregnant to someone other than the sponsor, which made an answer/s to a question on her Partner visa application form incorrect in the new circumstances and before the grant of the Subclass 100 visa on 10 March 2015.

18. Section 99 of the Act provides that any information 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 s.100, paragraphs 101(b) and 102(b) and ss. 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.

19. The applicant’s child was born on 29 October 2015. The birth certificate identifies Mr Kris Douglas Walker as the child’s father. There is no evidence to suggest the child was born prematurely and therefore it is likely that the child was conceived around January/February 2015.

20. Prior to the scheduled hearing the applicant’s representative provided a written submission and additional documents in support of the application for review which included but were not limited to written statements, photographs and Family Court orders.

21. In the written submission the applicant’s representative contended that there was no non-compliance by the applicant in failing to advise of a change in her circumstances because her relationship with the sponsor had not ceased permanently before the grant of her permanent visa. The basis of this contention included that the time which has elapsed has caused uncertainty and variations in the applicant’s recollection of events; the date the applicant and the sponsor ceased sharing a household is not determinative of the nature of the relationship; the date the applicant conceived the child is not determinative of the nature of the relationship and the relationship did not have a clearly defined end date as it transitioned from a married relationship to a friendship. The written submission refers to the applicant and the sponsor’s decision to live temporarily apart in mid-January 2015.

22. Written statements made by the applicant and the sponsor were also before the Tribunal.

23. The Tribunal accepts that no one factor is determinative of the nature of the applicant’s relationship with the sponsor at the date her permanent visa was granted on 10 March 2015. However, having regard to the several circumstances of the relationship, the Tribunal has formed the view that the relationship ceased prior to the date the permanent visa was granted. In reaching this conclusion the Tribunal took into account the following:

    ·    The applicant and the sponsor were not living together and sharing the responsibilities of a household from 10 December 2014.

    ·    On 10 December 2014 the applicant departed Australia and the sponsor did not accompany her.

    ·When the applicant returned to Australia on 16 January 2015 she chose to reside with her cousin.

    ·In late January 2015, the applicant sought emotional support from another man and had a sexual relationship with this man.  In her written statement she describes this man as a sympathetic person.

    ·The sponsor underwent a vasectomy in late 2014 without the applicant’s knowledge when he was aware of her desire to have children, demonstrating a disregard for her emotional well-being.

    ·After discovering she was pregnant, the applicant commenced living with the father of her child, which indicates the relationship was not limited to just a sexual encounter.

    ·In her written statement the applicant said the sponsor texted her when the permanent visa was granted which indicates it is likely they were not speaking to or seeing each other at the time.

24. The Tribunal also had regard to the decision of the first Tribunal which recorded:

    The applicant’s evidence to the Tribunal is that her relationship with the sponsoring spouse ended by February 2015 when she found out about her pregnancy to Mr Walker.

25. Accordingly, the Tribunal finds that the applicant was aware of the change in her circumstances in late January 2015 or early February 2015.

26. The written submission noted the requirement under s.104 is to notify of a change in circumstances as soon as practicable and submitted that the applicant’s uncertain and vulnerable position meant it was not practicable for her to notify the Department when the relationship ceased. The Tribunal does not accept this contention. There was nothing to indicate that the applicant was incapable of carrying out her obligation to notify the change in her circumstances. The end of her relationship with the sponsor and the knowledge that she had conceived a child with another man, whilst likely to cause emotional distress, did not preclude her from being able to notify the Department. In her written statement the applicant said she did not purposefully hide anything from the Department. The Tribunal does not accept this contention. The applicant was clearly informed of her obligation to notify a change in her partner relationship in relation to her Partner visa, and she did not at any time advise the Department of the cessation of her relationship with the sponsor and the birth of her child.

27. The Tribunal finds that the applicant’s circumstances changed after her application was lodged and prior to her Subclass 100 visa being granted on 10 March 2015. She was in Australia and failed to notify the Department before the visa was granted. The Tribunal finds that her failure to inform the Department of her changed circumstances that she her relationship with her sponsor had ended made answers to questions on her Partner visa application incorrect in the new circumstances.

28. For these reasons, the Tribunal finds that there was non-compliance with s.104 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 to the s.107 notice 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.

31. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadji (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 (PAM 3) ‘General visa cancellation powers’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Prescribed circumstances

32. The prescribed circumstances that are to be considered before making a decision are set out in r.2.41 of the Regulations.

33. The Tribunal has taken the r.2.41 prescribed circumstances as well as any other relevant facts and matters into account when considering the discretion.  

    The correct information

34. At the time the Subclass 100 visa was granted the applicant’s relationship with her sponsor had ended. The correct information was not provided because the applicant did not notify the Department of the change in her circumstances.

35. This is a significant issue which weighs in favour ofcancellation.

    The content of the genuine document (if any)

36. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information

37. An application for a Partner visa includes an assessment of whether the applicant is a spouse, including a de facto spouse, of the sponsor. That requires an assessment of whether the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal finds that information about the end of her relationship with the sponsor and that she was pregnant to another man prior to the grant of her Subclass 100 visa, very significant to the assessment of the applicant’s eligibility for the visa. 

38. The Tribunal finds that the decision to grant the visa was based, on incorrect information being that the applicant was in a current and exclusive relationship with her sponsor. This weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

39. The Tribunal is of the view that it was the applicant’s responsibility to ensure she was aware of and comply with her obligations whilst awaiting the outcome of the visa application.

40. The applicant’s contention is that any non-compliance was not intentional and occurred in the context of uncertainty about the future of her relationship with the sponsor. For the reasons set out above, the Tribunal does not accept this contention. This weighs in favour of cancellation.

    The present circumstances of the visa holder

41. The evidence before the Tribunal is that the applicant and her daughter currently reside in the suburb of South Lake in Western Australia. The applicant works as a cleaner and her daughter, who is now five years of age, attends pre-primary. The applicant has family and friends in Australia. The written submission says the applicant plays an active and crucial role in her daughter’s life. Written statements from the applicant’s friend, Robert Spencer, and her cousin-in-law, Frank Gonnella, were provided in support of her significant involvement in her daughter’s life.

42. The Tribunal gives this consideration significant weight 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

43. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations.

44. The applicant did not respond to the NOICC dated 28 June 2018. The NOICC was returned to the Department by Australia Post. The Tribunal accepts, as advised in the written submission, that the applicant did not receive the NOICC.

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

45. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance.

46. The Tribunal gives this weight in favour of not cancelling the visa.

    The time that has elapsed since the non-compliance

47. The application for the Partner visa was made in December 2012. The Subclass 309 visa was granted in April 2013 and the Subclass 100 visa was granted in March 2015. Six years have passed since the non-compliance and the Tribunal acknowledges this is a lengthy period.

48. The Tribunal gives this consideration significant favourable weight against cancellation.

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

49. There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.

    Any contribution made by the holder to the community

50. The written submission stated that the applicant is a hard-working member of the Australian community. She works as a cleaner and her employer, Vicky Abram, provided a written statement in which she said the applicant is reliable, honest and works to a high standard. She also said the applicant is a committed and loving mother to her daughter.

51. The evidence before the Tribunal included that in 2020 the applicant completed volunteer work with PortCare offering her services as a cleaner.

52. The Tribunal gives this consideration some favourable weight against cancelling the visa.

53. The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in r.2.41 where they are relevant or applicable in this case.

    Other considerations

54. As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109.

    Whether there would be consequential cancellations under s.140

55. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

56. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. Whilst these are serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation. 

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. The applicant has made no claim for a protection visa.  There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations.

2. The Tribunal gives this factor no weight either in favour of cancelling or not cancelling the visa.

3. The applicant’s daughter was born in Australia and is an Australian citizen. The evidence before the Tribunal is that the child loves her school, has lots of friends, participates in numerous extra-curricular activities and has lived her entire life in Australia.

4. The applicant and her daughter’s father, Mr Walker, share parental responsibility of the child. Family Court orders evidencing that the child is to live with the applicant except for nominated days, set out in the orders were before the Tribunal. The Family Court orders also restrain the applicant and Mr Walker from removing the child from Australia without the written consent of the other parent.

5. The evidence before the Tribunal is that Mr Walker plays a significant role in the child’s life. In her written statement the applicant acknowledges the important positive involvement of Mr Walker in the child’s life but also says she does not trust him to facilitate a relationship between her and the child if she is required to depart Australia. She said:

   He is already doing everything he can to give me a hard time and to try and make sure I leave the country. I think it will be even harder to negotiate with him if my visa were cancelled.

6. The written submission referred to the Convention on the Rights of the Child (CROC) and Article 3 which states:

   In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

7. The written submission states that the child’s best interest would be served by revoking the cancellation decision because that is the only scenario that would allow her to have both her mother and her father in her life. If the applicant is required to depart Australia, the Family Court orders preclude the child leaving without Mr Walker’s consent and he has indicated that he would not agree to such a course of action. Therefore, the child would be deprived of a regular and close relationship with her mother. The written submission states that the applicant’s ability to visit her daughter in Australia would be limited by financial and visa constraints. The written submission further states Mr Walker has expressed a reluctance to foster a relationship between the applicant and the child and therefore any contact between them would likely be at Mr Walker’s whim.

8. The written submission refers to Australian courts and tribunals consistently recognising the importance of children having a connection with both their parents, particularly during their formative years. The written submission cited research which demonstrates the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a child.

9. The written submission also states that if in order to stay with her mother, the child was forcibly removed from Australia, her connection to her country of birth would be lost or diminished. Such a scenario would also result in the child being separated from her father.

10. The Tribunal does not necessarily consider that the fact that the child is an Australian citizen means that it must be in the best interest of that child to live in Australia. It is not an unassailable assumption that a citizen must live in their own country and it is not uncommon for people to relocate to countries other than the country of their birth.

11. The Tribunal accepts that as a signatory to the CROC, Australia has an obligation to ensure that in all actions concerning a child, the best interest of the child is a primary consideration. Recently in DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184, the court reaffirmed the proposition that the best interest of the child must be given primary consideration. In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 C.L.R. 273, the court noted that although the CROC does not have the force of law for Australian domestic purposes, by being a signatory to the CROC, there is an expectation that a decision maker would act in accordance with the provisions of the CROC.

12. The best interest of the child as a primary consideration does not preclude cancellation of a visa but requires the decision maker to turn their mind to what decision in respect of the cancellation would be in their best interest and the consequences of cancellation. The Tribunal accepts that it is in the applicant’s daughter’s best interest to have both her mother and her father involved in her life and accepts the written submissions that it is likely that the Australian citizen child would be deprived of having a close and regular relationship with her mother if the visa remains cancelled.

13. The Tribunal accepts that the applicant’s daughter has only known Australia as her home. The child has commenced her education in Australia and is actively involved in the extra-curricular activities. The evidence was that she has developed family and friendship relationships in Australia.

14. The Tribunal is satisfied that it is in the best interest of the child for the applicant’s visa not to be cancelled. The Tribunal weighs this factor heavily against cancelling the applicant’s visa. 

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

15. The written submission referred to the travel restrictions resulting from the COVID-19 pandemic which would likely impact on the applicant’s ability to have contact with her daughter.

16. The Tribunal acknowledges that travel restrictions will cause some hardship because the applicant and her daughter are likely to be deprived of a close and regular relationship, which is claimed they currently have.

17. The Tribunal gives this weight in favour of not cancelling the visa.

    Conclusion on the exercise of the discretion

18. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s.104 of the Act.

19. The Tribunal acknowledges that several years have passed since the non-compliance. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law. The Tribunal accepts that hardship may be caused to the applicant and her daughter if the visa is cancelled. The Tribunal accepts that the applicant has made a contribution to the community through volunteering. These are factors that suggest that the visa should not be cancelled.

20. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was made without the correct information because the applicant did not advise of a change in her circumstances, namely that her relationship with her sponsor had ended. As noted, the Tribunal does not accept that the applicant’s non-compliance was unintentional. She did not at any time notify the Department that her relationship with the sponsor had ended.

21. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. There are no consequential cancellations. The Tribunal accepts that if the applicant’svisa is cancelled, and unless she is granted another visa, she may be subject to detention, although the applicant may be eligible to apply for othervisas.

22. The applicant’s non-compliance obviously impacts adversely upon her child. The Tribunal accepts it is in the best interest of the child to have both her parents involved in her life. The Tribunal considers the applicant’s failure to notify the Department of a change in her circumstances is ultimately outweighed by the considerations before the Tribunal, in particular, the best interest of the child which it has treated as a primary consideration and given considerable and forceful weight in deciding the visa should not be cancelled.

23. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

    Christine Kannis
    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.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

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

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    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.