Qasemi (Migration)

[2020] AATA 5670

Qasemi (Migration) [2020] AATA 5670 (3 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Gul Nessar Qasemi

CASE NUMBER:  1834087

DIBP REFERENCE(S):  BCC2017/1650941 CLF2018/359095 CLF2018/360241

MEMBER:Nicholas McGowan

DATE:3 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

Statement made November 3, 2020 at 12:45pm

CATCHWORDS
MIGRATION – cancellation – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – ground for cancellation – incorrect information in visa application – failure to declare prior visa application refusal – names previously known by – consideration of discretion – important nature of the correct information – grant of visa partly based on incorrect information – circumstances giving rise to the non-compliance – responsibility of the visa holder – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 365, 366

Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

WRITTEN STATEMENT OF DECISION AND REASONS

REVIEW

1. This is a review of a decision made by a delegate of the Minister for Immigration on 14 November 2018 to cancel the applicant’s (‘visa holder’s) Contributory Parent (Class CA) (Subclass 143) visa under s.109(1) of the Migration Act 1958 (the Act).

2. On the 18 August 2020, the visa holder was invited to appear by telephone before the Tribunal to give evidence and present arguments at a hearing scheduled 2 October 2020.

3. The Tribunal’s invitation to the visa holder to attend a hearing explained that the Tribunal had considered all the material before it relating to the review application but was unable to make a favourable decision on that information alone.

4. Because of the SARS-CoV-2 pandemic, the Tribunal conducted the hearing via telephone. The Migration Act 1958 gives the Tribunal the authority to conduct matters in this way: Section 366(1).

5. Consistent with section 365(3) of the Migration Act 1958 the Tribunal conducted the hearing without opening it to the public as it is satisfied that during the SARS-CoV-2 pandemic it is impracticable to take oral evidence in public. Accordingly, the Tribunal directed that all the evidence from any participant in the review, be taken in private.

6. The visa holder appeared before the Tribunal on 2 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter. Post-hearing the visa holder was granted until 23 October to provide any further evidence of arguments in any/all respects. The visa holder’s agent’s post-hearing submission sought a further hearing should the Tribunal not find in the visa holder’s favour. The Tribunal has outlined to the visa holder the issues it must consider and held review and hearing as required under law. The Tribunal also allowed significant time for any further evidence or arguments (post-hearing), all of which has been taken into considered in this decision.

7. The visa holder is represented in relation to the review by her lawyer.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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?

11. 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.

12. The non-compliance was identified and particularised in the s.107 notice which was issued on 1 August 2018 and a response to that notice received from the applicant on 15 August 2018.

13. During the hearing into the review (held 2 October 2020) the Tribunal raised with the visa holder and her representative all matters with respect to the section 107 notice. The visa holder was invited by the Tribunal to make any submission or argument in respect to any concern or issue with the section 107 notice, including its validity. Having explored these aspects, it is clear to the Tribunal the validity of the section 107 was not in dispute. The Tribunal has, nonetheless, considered the claimed non-compliance as identified and particularised in the section 107 notice. As part of its consideration, the Tribunal notes the visa holder has conceded to the Department (previously) that the non-compliance in the way identified and particularised in the section 107 notice, did occur. The Tribunal enquired during the hearing, whether the visa holder, through her representative, conceded that the non-compliance, as identified and particularised in the section 107 notice, is correct. The visa holder’s representative confirmed the non-compliance - as identified and particularised - and provided an explanation and context within which the non-compliance occurred.

14. Notwithstanding the visa holder has conceded the non-compliance identified and particularised in the section 107 notice (discussed above), the Tribunal has considered and made the below finding.

15. A copy of the Minister’s delegate’s Record of Decision of whether to cancel under section 109 of the Migration act 1958 dated14 November 2018, has been provided to the Tribunal as part of this review by the visa holder. As such, none of the information is required to be put to the visa holder, and all of the information (below) can be sourced to that Record.

16. The visa holder (and her daughter - who applied as a dependent secondary applicant) made applications, for Subclass 143 visas, on 27 August 2013. As part of those applications (which were subsequently granted on 24 December 2015) the visa holder declared (in response to the relevant questions) her (and her daughter’s) full names, dates of birth, family composition; whether they’d been known by any other names; and, an answer in respect of whether any person included in the Subclass 143 application had ever been refused an entry permit or visa to Australia. Specifically, the visa holder declared (in that Subclass 143 visa) that her sponsor (who was her son, an Australian citizen) who was Arif Qasemi, born 10 March 1976, and her biological daughter - who was a dependent attached to the visa application, was Atiqa Qasemi, born 1 January 1982. The visa holder declared she had been previously refused a visa for Australia (once) “in about 2008”. The visa holder also declared she has not been known by any other names.

17. The Record of Decision details that the Department of Immigration confirmed the visa holder had earlier lodged an application for a visa, which had been refused (as she declared in her Subclass 143 visa) back in 10 July 2008.

18. The Record of Decision also details, that after the conduct of facial recognition and forensic analysis by the Department, the visa holder was found to be the primary applicant for a separate Global Special Humanitarian (Subclass 202) visa lodged in the name of Amina Jaffari, born 31 December 1949. In that Subclass 202 visa application, the visa holder declared her dependent children - her daughter Zainab Jaffari, born 31 December 1989, and her son Ali Jaffari born 1 July 1993. The facial recognition analysis by the Department of Immigration revealed the visa holder’s daughter, Atiqa Qasemi and Zainab Jaffari, are the same person. The visa holder’s application in the name of Amina Jaffari was refused on 7 June 2010.

19. The Tribunal has considered the evidence on the Departmental file which speaks to the evidence referred to above, and has satisfied itself, of the facts as outlined above.

20. To be specific (in respect of the claimed non-compliance), the visa holder provided an incorrect answer to question 8 of her Form 47PA application for a Contributory Parent Subclass 143 visa, because (relevantly) although she declared she had been refused a visa in 2008 she did not declare the Global Special Humanitarian (Subclass 202) visa application she was refused on 7 June 2010 under the name of Amina Jaffari born 31 December 1949 (which included her daughter - though also using a different name, Zainab Jaffari rather than Atiqa Qasemi). The visa holder has also provided an incorrect answer to question 15 of her Form 47PA which asked whether she’d been known by any other name(s) and answered “No”, despite the information outlined above which shows she had been alternately known.

21. For the reasons given above, the Tribunal finds that there was non-compliance with Section 101(b) by the visa holder in the way described in the Section 107 notice.

    Should the visa be cancelled?

22. 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).

23. 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).

24. The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, the prescribed circumstances 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.

25. Consideration of prescribed circumstances as set out in r.2.41 of the Regulations:

26. the correct information

    The correct information is that the visa holder was formally known as Amina Jaffari and had used this name when she applied for an Offshore Global Humanitarian (Subclass 202) visa on 21 January 2010 which was refused by the Minister on 7 June 2010. By not declaring this information in her application (under review) the visa holder facilitated the grant of her Contributory Parent (Class CA) (Subclass 143) visa.

    Given the important nature of the correct information (referred to above), and given it was not provided to the Minister’s delegate by the visa holder as part of her application which led to the decision to grant the Contributory Parent (Class CA) (Subclass 143) visa, the Tribunal gives this consideration significant weight in favour of cancelling the visa.

    Given the above, the Tribunal gives this consideration significant weight in favour of cancelling the visa.

27. the content of the genuine document (if any)

    Since no documents, outside the visa holders own visa applications, were assessed as part of this decision, the Tribunal has not given any weight in favour, or against, cancelling the visa because of this consideration.

28. 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 decision to grant the visa holder the Contributory Parent (Class CA) (Subclass 143) visa was partly based on the incorrect information the visa holder provided. Accordingly, the Tribunal gives this consideration significant weight in favour of cancelling the visa.

29. the circumstances in which the non-compliance occurred

    The visa holder has claimed her Contributory Parent (Class CA) (Subclass 143) visa application was prepared by her adult children (specifically her son), and she did not understand the content, though was asked to sign, and did so.

    The Tribunal notes the visa holder was legally represented at the time she lodged her application, which included a declared by her (contained in her application Form 47PA at question 64) that the application was completed with the assistance of her lawyer, Ms Samantha Louise Fitzsimons of Clothier Anderson and Associates. The Tribunal notes the visa holder has provided no evidence of any claim of any misrepresentation, or error, in respect of her visa application, as assisted (or made) by her legal representative.

    The Tribunal also notes that under law it is the responsibility of the visa holder (as the applicant) to provide correct information.

    The Tribunal also notes no reason(s) or explanation has been offered to indicate the children could not have explained to the visa holder what she was signing, assuming the children did not explain the application to her as she claims.

    The Tribunal has also had regard to the visa holder’s visa application Form 47PA and her own signed Declaration at question 75, declaring the information supplied by her in her visa application is “…complete, correct and up-to-date in every detail.”

    Having considered all the above, the Tribunal gives this consideration significant weight in favour of cancelling the visa.

30. the present circumstances of the visa holder

    The visa holder told the Tribunal (during the hearing of 2 October 2020) she has settled in Australia, made a home for herself, and feels safe. The visa holder is elderly. The visa holder enjoys time with her family, including her grandchildren (which are Australian citizens). The visa holder told the Tribunal that she spends her time in the garden. The visa holder explained that as she is older, she contributes to the Australia community through the help she provides her immediate family. The visa holder told the Tribunal she is appreciative of her life in Australia. The visa holder claims to have no immediate family in Afghanistan.

    The Tribunal accepts the present circumstances of the visa holder are conducive to the continued enjoyment of her family in Australia, and accepts the visa holder is established in Australia, and enjoys being involved with her children and grandchildren.

    The Tribunal gives this consideration some weight in favour of not cancelling the visa

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

    The visa holder has provided a response to the section 107 Notice admitting there had been non-compliance under Section 1010(b). The visa holder has provided incorrect information to the Minister, notwithstanding she claims she was legally represented, she says she followed her adult son’s instructions.

    Given the above, the Tribunal gives some weight in favour of a decision to cancel the visa.

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

    According to the Record of Decision dated 14 November 2018, provided to the Tribunal by the visa holder as part of this review, the visa holder (in her Contributory Parent (Class CA) (Subclass 143) visa application) declared her son Abdul Ali Qasemi and Mohammed Aslam Qasemi were deceased. However, the Record outlines that Abdul Ali Qasemi (also known as Kausar Hussain Hussaini) was Ali Jaffari. A facial image comparison of photographs of the two identities held by the Department indicates further non-compliance by the visa holder. These matters are outlined in the Record, and the visa holder provided with ample opportunity during the Tribunal’s review, and including by way of any post hearing evidence or submission, to provide relevant arguments or evidence in respect to these considerations.

    Further, the Record, identifies that Yassin Jaffari has confirmed he is Mohammad Aslam Qasemi, indicating non-compliance when the visa holder listed his name as the prosper in the Offshore Global Special Humanitarian (Subclass 202) visa on 21 January 2010.

    Given the above, the Tribunal finds it appropriate that these considerations be given some weight in favour of cancelling the visa.

33. the time that has elapsed since the non-compliance

    The time elapsed since the non-compliance is approximately seven years. However, in circumstances where the visa holder received a primary decision, but has sought a review (as of right) the Tribunal’s consideration of the period that has elapsed since the non-compliance will logically consider the reasons for the time that has elapsed. Accordingly, the Tribunal gives this consideration no weight in favour, or against, cancelling the visa.

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

    The Tribunal has no evidence before it that the visa holder has somehow breached any law since the non-compliance.

    It follows, this consideration has been given no weight in favour of cancelling the visa.

35. any contribution made by the holder to the community.

    The visa holder told the Tribunal (at the hearing of 2 October 2020) that she would like to contribute, but she is trying to help her family and be helpful to the community. The visa holder told the Tribunal there are somethings she does, but has a limited capacity, and is very positive toward the community. The visa holder told the Tribunal during the day she looks after the garden, and matters in the house, nonetheless she is positive toward the Australian community.

    The Tribunal accepts the visa holder’s oral evidence as provided by her (and outlined immediately above). In the circumstances described by the visa holder, and consistent with the claimed level of her contribution to the community - and accepting her immediate family and grandchildren are the core beneficiaries of her contribution (themselves members of the Australian community), the Tribunal gives this consideration some weight in favour of not cancelling the visa.

    Lawful government policy

36. While the factors (above) 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.

37. Purpose of the applicant’s travel to stay in Australia

    While the Tribunal acknowledges the purpose of the visa holder’s travel and stay in Australia was her claim to be a ‘Contributory Parent’, because of the visa holder (and through her – her adult children) have prioritised the granting of her visa over their lawful obligation and requirements upon them to provide correct information, the Tribunal gives this consideration some weight in favour of cancelling the visa.

38. The extent of the applicant’s compliance with the visa conditions

    As there are no conditions attached to the visa holder of a Contributory Parent (Class CA) (Subclass 143) visa, the Tribunal gives this consideration no weight in favour or against cancelling the visan.

1. The degree of hardship that may be caused to the applicant and any family members

   The visa holder told the Tribunal she would face hardship if she was required to return to Afghanistan. The Tribunal has also been told her family, adult children, and their children (her grandchildren) would also face hardship. While the Tribunal accepts the visa holder and her family may experience a level of hardship if her visa is cancelled, as her family is able to support her, in Australia and Afghanistan, the Tribunal finds the level of hardship can be ameliorated. Accordingly, the Tribunal gives this consideration little weight in favour of not cancelling the visa

2. The circumstances in which the ground for cancellation arose

   This consideration has been discussed above (relevantly under): ‘the circumstances in which the non-compliance occurred’ above. Accordingly, and consistent with the weighting above, the Tribunal gives the consideration significant weight in favour of cancelling the visa. 

3. The applicant’s past and present behaviour towards the Department

   As the visa holder has provided incorrect information (discussed and weighted above), the Tribunal places some weight on this consideration in favour of cancelling the visa.

4. Any consequential cancellations that may result

   As the visa holder’s daughter was included in her Contributory Parent (Class CA) (Subclass 143) visa application, the cancellation of the visa holder’s visa may result in a consequential cancellation.

   As the basis (at least, partly) for the granting of the visa was the incorrect information provided by the visa holder it follows, that this consideration has been some weight in favour of cancelling the visa.

5. Legal consequences of a decision to cancel the visa

   As the visa holder is an Afghan citizen, and there is no information before the Tribunal that indicates the visa cancellation would impact Australia’s international legal obligations or place Australia in breach of its non-refoulement obligations, although the Tribunal has considered the visa holder’s claims in these respects. Notwithstanding the reports, opinion, articles and other information provided by the visa holder (post-hearing), the Tribunal has not been satisfied Australia would be in breach of its non-refoulement obligations. Accordingly, this consideration is neutral, and the Tribunal finds it weighs neither in support of, nor against, cancelling the visa.

6. Other legal consequences of a decision to cancel the visa

   A visa cancellation decision may result in the visa holder being detained under section 189 and removed from Australia under section 198 of the Migration Act as the applicant would no longer hold a valid visa. The visa holder may also be subject to section 48 of the Migration Act, which may prevent her from applying for further visas while in Australia. Additionally, the visa holder may be affected by Public Interest Criteria 4013 which limits the granting of a further visa for a specified period. The visa holder may also not be permitted to work following a visa cancellation (though the evidence from the visa holder is that she does not work). As these are standard legal consequences that may flow in the event a visa is cancelled, the Tribunal acknowledges they may cause some hardship, though any hardship maybe mitigated by the visa holder’s voluntary departure from Australia and continued care while in Australia (and including in Afghanistan) by her family. For these reasons the Tribunal finds these considerations are neutral and the Tribunal finds they weigh neither in support of nor against cancelling the visa.

   Post-hearing submission

7. At the conclusion of the Tribunal’s hearing held 2 October 2020, the Tribunal invited the visa holder (and her legal representative) to make any final submissions, including any evidence whatsoever, and/or argument. The Tribunal granted the visa holder’s legal representative until the close of business on 21 October 2020.

8. The Tribunal considered the visa holder’s post-hearing submission and all the information provided. The Tribunal has also considered the matters identified in the visa holder’s submission, including incorporating those under the heading ‘Any other matters’. Individual considerations have incorporated in the Tribunal’s ‘considerations’ above (where relevant). In respect to the SARS-CoV-2 pandemic, while the Tribunal has considered the presence of the virus in Afghanistan, and the visa holder’s age - as outlined in the visa holder’s own evidence, medical assistance can be obtain in Afghanistan, and importantly, significant measures can be taken by the visa holder herself to mitigate the risk of contracting the virus. For these reasons, the Tribunal finds this consideration is neutral, and the Tribunal finds it weighs neither in support of, nor against, cancelling the visa.

   Other considerations

9. The Tribunal had regard to the Departmental files. It has also had regard to the various documents covered by a section 375A certificate. As these folios contain information which are the basis for the findings conducted by the Department’s integrity officers in respect to the facial recognition, and other internal working Department documents of Departmental officers, they may be adverse, and therefore must be put to the visa holder consistent with the requirements of the Act and regulations under law. However, as the Tribunal finds that all the adverse information contained in these folios is contained in the Record of Decision (dated 14 November 2018) there is no requirement for the information to be put.

10. It also follows, that as no adverse weight has been given to any of the information in these folios (expect for that information which is referred to in the Record of Decision dated 14 November 2018 (which the visa holder provided to the Tribunal), the validity of the certificate need not be put.

    Summary and findings

11. The visa holder was formally known as Amina Jaffari and had used this name when she applied for an Offshore Global Humanitarian (Subclass 202) visa on 21 January 2010 which was refused by the Minister on 7 June 2010. By not declaring this information in her application (under review) the visa holder facilitated (at least, partly) the grant of her Contributory Parent (Class CA) (Subclass 143) visa.

12. When weighing all of the considerations, the Tribunal has placed significant weight in favour of cancellation on the ‘correct information’; 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; and, ‘the circumstances in which the non-compliance occurred’ (as detailed above). The Tribunal finds that overall those considerations that weigh in support of cancelling the visa holder’s visa outweigh those considerations the Tribunal has found weigh against cancelling the visa.

    Findings

13. The Tribunal has decided that there was non-compliance by the visa holder in the way described in the Notice given under Section 107 of the Act.

14. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Contributory Parent (Class CA) (Subclass 143) visa.

*  *  *  *  *

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.