Srirangam (Migration)

[2017] AATA 2521

Srirangam (Migration) [2017] AATA 2521 (3 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ajaykumar Srirangam

CASE NUMBER:  1611165

DIBP REFERENCE(S):  BCC2015/295056

MEMBER:David McCulloch

DATE:3 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 July 2017 at 12:56pm

CATCHWORDS
Migration – Cancellation – Student Visa – Subclass 573 – English language requirements – Allegedly fraudulent conduct at the test centre – Inconsistencies in test scores – Bogus documentation – Non-compliance – Limited evidence

LEGISLATION

Migration Act 1958 ss 99,101, 102, 103, 104, 105, 107, 107(2), 109, 109(1), 375A

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 Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.109(1) of the Migration Act 1958 (the Act).

2. 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 20 June 2017 to give evidence and present arguments. The hearing was conducted in English.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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.

7. 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.

   Did the notice comply with the requirements in s.107? 

   Breach of s.103 of the Act

8. In the present case, there is a question in the Tribunal’s mind as to whether the notice relating to the breach of s.103 of the Act issued by the Minister’s delegate complied with s.107 of the Act.

9. S.103 of the Act provides:

   A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.

10. Bogus document is defined in the Act as follows:

    "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.

11. In relation to non-compliance with s.103, the NOICC provided as follows:

    On 6 November 2014 you stated at section 34 of your visa application that you undertook an English Language proficiency test on 3 November 2014, through the Pearson Test of English Academic and achieved a test score (overall band score) of 59. Your application included a certified copy of the PTE Academic Test Taker Score Report which noted an overall score of 59.

    On your visa application declaration you declared that “ I am aware that I must immediately advise the department if I become aware that any information provided in this form is incorrect or if there is a change in my circumstances that is relevant to this application at any time."

    On 28 January 2015 the following contrary information came to the attention of the Department:

    You were notified by Pearson Language Testing by email on 13 January 2015 that the test score you were awarded was cancelled due to an anomaly in test administration at the test centre in India where you sat your Pearson Test of English Academic.

    In particular, the Department has been further advised that the anomaly in the test administration was due to fraudulent conduct undertaken by you, and other test candidates, at the particular test centre on the date of your test. This fraudulent conduct included having a proxy sit the test using your identity and the altering of computer terminals to manipulate said test results. Pearson Language Testing has advised that this fraud by proxy was recorded on video and was used to justify the decision taken by Pearson Language Testing to cancel your test score and notify you of their decision by email. The Department considers such fraudulent conduct was undertaken the express purpose of obtaining an English language test score which would facilitate you obtaining a student visa.

    The Department has been advised by your migration agent that you obtained an earlier English language overall band score of 52 dated 9 June 2014. While this earlier test score falls within the 24 month period by which your visa application was lodged, it does not override or negate the allegations made by Pearson Language Testing in regard to you having committed the fraud that led to you receiving your particular test score at the time of your test on 3 November 2014.

    I consider that the answer to this question you provided in your visa application is incorrect as evidence indicates that you did not achieve the required English Language proficiency test score of 59 on 3 November 2014.

12. The information in the s.107 notice fails to articulate the bogus document that has been obtained because of false or misleading information.

13. For that reason, the Tribunal is not satisfied that the delegate had reached the necessary state of mind to engage s.107 or that the notice issued under s.107 complied with the statutory requirements as it relates to claims of non-compliance with s.103 of the Act.

14. For these reasons, the Tribunal finds that the notice was not a valid notice as it relates to compliance with s.103 of the Act. As a valid s.107 notice is a precondition to the exercise of the power under s.109, the power to cancel the visa did not arise to the extent claims are made that there is non-compliance with s.103 of the Act.

15. It might be assumed that the delegate is indicating that the application form itself is the bogus document. The Tribunal does not consider that this is sufficiently clear on the face of the s.107 notice. In any event, as discussed below, the application form itself would not fall within the definition of a bogus document.

    Breach of s.105 of the Act

16. Section 105 of the Act provides:

    (1)If a non-citizen becomes aware that:

    (a)  an answer given or provided in his or her application form; or

    (b)  an answer given in his or her passenger card; or

    (c)  information given by him or her under section 104 about the form or card; or

    (d)  a response given by him or her under section 107;

    was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

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

17. In relation to non-compliance with s.105, the NOICC provided as follows:

    On the Declaration section of your TU-573 visa application, you declared:

    "The information I have supplied in this application is complete, correct and up-to-date in every detail."

    I consider that you have not complied with section 105 as you would have been aware that answers given on your application form for the Higher Education Sector TU-573 visa granted on 15 December 2014 were incorrect when they were given, and as such you must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answers.

    There is no record on departmental databases or files of you informing the department of the incorrect answers given on your application forms for the above visas.

    The powers to issue this Notice, make a decision about whether there was non-compliance in the way described in this Notice and make a decision about whether to cancel your visa, exist whether the non-compliance was deliberate or inadvertent.

    By operation of section 99 of the Act, not only must there be no incorrect answers on the application form itself, there must also be no incorrect answers in any information that a non-citizen gives, causes to be given or that is given on his or her behalf (whether in writing or orally) to the Minister, an officer, or a person or a tribunal reviewing a decision under the Act in relation to the non-citizen's application for a visa.

    The powers to issue this Notice, make a decision about whether there was non-compliance in the way described in this Notice and make a decision about whether to cancel your visa, exist whether the non-compliance was deliberate or inadvertent.

18. In relation to non-compliance with s.105, the NOICC indicates that answers on the application form for the Higher Education Sector TU-573 visa on 15 December 2014 were incorrect when they were given and, as such, the applicant was required, as soon as practicable, to notify an officer of the incorrectness and of the correct answers. Whilst the delegate could have been clearer, the Tribunal considers that the incorrect information that is being referred to is the answer provided at section 34 of the visa application that the applicant had undertaken an English Language proficiency test on 3 November 2014, through the Pearson Test of English Academic and achieved a test score (overall band score) of 59.

19. The Tribunal therefore considers that the s.107 notice is valid to the extent that it relates to a claimed breach of s.105 of the Act.

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

20. The Tribunal must consider whether there was non-compliance in the way described in the s.107 notice, to the extent that it is valid, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

21. As indicated, the Tribunal does not consider that the s.107 notice is valid in so far as it asserts a breach of s.103 of the Act.

22. Whilst the Tribunal does not consider that it is sufficiently explicit in the s.107 notice, it might be considered that the delegate is asserting, in relation to s.103, that the application form is the bogus document. The applicant’s representative responded to the NOICC on this assumption. It was argued that the actual visa application is not capable of being a bogus document for the purpose of the Act. This is because the visa application is a document that is completed by the visa applicant or a person on their behalf rather than being ‘obtained’. Accordingly, a visa application is not capable of being a document that ‘was obtained because of a false or misleading statement, whether or not made knowingly’.

23. The Tribunal agrees with this submission. Therefore, if the Tribunal is wrong, and the s.107 notice is valid as it relates to compliance with s.103, the Tribunal would not be satisfied that the visa application form can constitute a bogus document. The Tribunal would not therefore be satisfied that there was non-compliance with s.103 of the Act leading to grounds to cancel the visa under s.109(1) of the Act.

24. Whilst the delegate refers to the fact that the applicant provided a certified copy of the PTE Academic Test Taker Score Report and it might have been asserted by the delegate that this was ‘obtained because of a false or misleading statement’, namely a statement as to the identity of the person who took the test (in the event that the Tribunal were satisfied that another person took the test on behalf of the applicant), this is not specifically claimed in the s.107 notice, and therefore the Tribunal is not in a position to determine non-compliance with s.103 on that ground.

25. In relation to the claimed breach of s.105, the NOICC indicates that:

    ·The applicant was advised by email on 13 January 2015 by Pearson Language Testing that the test score he was awarded was cancelled due to an anomaly in test administration at the test centre in India where he sat the Pearson Test of English Academic.

    ·The Department was further advised that the anomaly in the test administration was due to fraudulent conduct undertaken by the applicant, and other test candidates. This fraudulent conduct included having a proxy sit the test using the applicant’s identity and the altering of computer terminals to manipulate the said test results. Pearson Language Testing advised that this fraud by proxy was recorded on video and was used to justify the decision taken by Pearson Language Testing to cancel the test score.

26. In the response to the NOICC, it is submitted by the applicant’s representative:

    The alleged non-compliance with s.105 of the Act is not admitted for the following reasons:

    (a)Mr Srirangam does not accept the correctness of the decision made by Pearson Language Testing to cancel Mr Srirangam's PTE Academic score issued on 3 November 2014. There was no due process and procedural fairness afforded to Mr Srirangam by Pearson Language Testing in the process of cancelling the relevant test scores. The particulars of the alleged fraudulent conduct has not never been put forward to Mr Srirangam and given opportunity to respond to before the decision was made. Further, some particulars given in the NOICC referring to fraudulent conduct were said to be undertaken by "other candidates" and involves "altering of computer terminals to manipulate ... test results". These allegation cast doubt as to whether the alleged fraudulent conduct was that of Mr Srirangam. We submit given the scale of to the alleged fraudulent conducts involving "candidates" and "altering of computer terminals", it is not plausible that the alleged conduct was that of Mr Srirangam but rather appears to be a general anomaly in test administration as properly described by Pearson Language Testing in their advice to DIBP. For instance, how is it plausible that an individual test candidate have the capability of altering computer terminals? Further, what is the exact nature of alteration to computer terminals? Who altered it? Would it be possible that the computer terminals were fraudulently altered by a third party which then resulted candidates unknowing sitting at computer terminals not assigned resulting in the wrong conclusion that proxy was used? These are all questions that cast doubt on the credibility of the decision made to Pearson Language Testing to cancel the test score. Accordingly, Mr Srirangam does not accept the answers he provided to his application form for subclass 573 Student visa was incorrect at the time (6 November 2014) it was given.

    (b)As noted in the particulars given in the NOICC, the purported cancellation of Mr Srirangam's PTE Academic score issued on 3 November 2014 was notified by email to him on 13 January 2015. It is not clear when the purported decision cancel was made by Pearson Language Testing. In the absence of evidence to the contrary, it can only be assumed that the purported decision to cancel the score would have been made on the day of the purported notification being 13 January 2015. Accordingly, Mr Srirangam does not accept that his PET test scores dated 3 November 2014 has the status of 'cancelled' or 'invalid' on 6 November 2014, as such does not accept the answer he provided to his application form for subclass 573 Student visa was incorrect at the time it was given.

27. For the applicant to be in breach of s.105 of the Act the Tribunal would need to be satisfied that the applicant knew that he had not, in fact, been the person who had taken the English Language proficiency test on 3 November 2014 and/or that the statement of results had been acquired through fraud, not reflecting a score actually obtained by the applicant.

28. The Departmental file sets out the communications between the Department and employees of Pearson Language Testing concerning the allegations of fraud. The information is subject to a Certificate under s.375A of the Act on the basis that the information contains the details of third parties.

29. In the hearing, the Tribunal sought submissions as to whether the Certificate was valid.  The applicant’s representative indicated that he had no submissions on the issue. The Tribunal is satisfied that the certificate is valid on the basis that it discloses the identity of third parties, namely the other individuals who were accused of fraud.

30. The gist of the additional information on the Departmental files, as potentially adverse to the applicant, not contained in the NOICC,  was put to the applicant in the hearing, without providing any information concerning the identity of third parties. The additional information for Pearson Language Testing put to the applicant follows:

    ·Call centre staff were involved in switching cables between workstations so that video footage appeared to show the applicant testing at a workstation when in fact somebody was testing for them at another workstation.

    ·There were nine candidates, including the applicant, allegedly involved in the fraud.

    ·The test centre has now been closed down.

    ·The email to the applicant on 13 January 2015 indicating that the test score had been determined as invalid due to an anomaly in testing was not responded to by the applicant.

31. That additional information addresses submissions by the applicant’s representative as to how it could be that the applicant would be in a position to alter computer terminals to manipulate test results. The allegation is clearly that call centre staff were involved, ultimately resulting in the call centre being closed.

32. Pearson Language Testing are therefore indicating that the applicant sat the test, which was videotaped, but that the call centre staff switched cables so that another individual was actually sitting the test that the applicant was meant to be sitting.

33. An issue is, if call centre staff had facilitated an individual other than the applicant sitting the test that the applicant was purportedly sitting, if that might have been done without the applicant’s knowledge.  That scenario has been put forward by the applicant’s representative in the written response to the NOICC.

34. There is communication provided from Pearson Language Testing to the Department dated 28 January 2015 making reference to an attached report on fraudulent test activity at a test centre in India. The Tribunal requested this report from the Department. In response, the Department provided a spread sheet listing nine individuals, including the applicant, having conducted proxy testing fraud at a test centre in Hyderabad. The test dates include a range of different dates in November 2014. There is one other individual, in addition to the applicant, who was accused of fraud in a test undertaken on 3 November 2014.

35. The Tribunal asked applicant in the hearing if he had secured the result of the test taken on 3 November 2014 by fraud, in conjunction with test centre employees. The applicant denied that he did this.  He indicated that he legitimately took the test and had no interaction with call test staff to have someone else sit the test.

36. Evidence provided, and confirmed in the hearing, was that the applicant had previously undertaken an English Test on 9 June 2014 in which he achieved a test score of 52. This would have fulfilled the necessary English visa requirements without the need for the applicant to have taken the test on 3 November 2014. The Tribunal accepts this. Given those circumstances, it was argued that there would have been no need for the applicant to perpetrate fraud with respect to the test on 3 November 2014.

1. In this context, the Tribunal asked the applicant why he needed to take the test on 3 November 2014.  The applicant said he just did it because he was told to by his agent and it was part of the process for obtaining the visa.

2. The applicant indicated that he studied for three or four days prior to the test, without the need for external coaching, and he expected the improvement on the score that he had previously received.

3. The applicant’s representative in the hearing submitted that Pearson Language Testing have only been undertaking testing for the purpose of Australian visas since late 2014 which could result in unreliability of their systems. He argued that Pearson Language Testing could have mistakenly included the applicant with other candidates who were, in fact, involved in the fraud.

4. Submissions were made that the applicant has progressed well in his studies in Australia up until his enrolment in a Masters of Information Systems was cancelled on 16 July 2016 due to the cancellation of the applicant’s visa. The Tribunal notes that there is a restriction on the applicant’s Bridging visa that prevents him from studying. Transcripts were provided of the applicant undertaking 10 units in this course in 2015 and 2016 and achieving pass marks or higher in nine of those units. Those results include five credits and one distinction. Evidence was provided that the applicant is employed by Woolworths with a reference from his employer indicating that he is a valuable employee. These factors were presented as demonstrating significant competence in his studies and in English which is undermining of the need for the applicant to have cheated to obtain his English results.

5. Based on all the evidence, the Tribunal has difficulty being satisfied that the applicant was a party to fraud in obtaining the English test results.

6. The Tribunal accepts that Pearson Language Testing believe that the applicant was involved in fraud. They are large international organisation involved in English testing. They have indicated that there is video evidence of the fraud. However, whilst it is indicated that the video shows the applicant sitting the test, it is not clear that the video shows cables being switched, or that the video provides positive evidence that the applicant was involved in the fraud. Information about the video evidence lacks specificity. However, he Tribunal gives the allegations of Pearson Language Testing a significant degree of probative weight.

7. Even if Pearsons Language Testing have evidence that the computer cable attached to the applicant’s computer was switched to another computer it is only an inference (although a quite compelling one) that this would not have happened without collusion and probably payment by the applicant to call centre staff to facilitate this.  There is no direct evidence of this however.

8. Pearson Language Testing have claimed that there was systemic fraud, with the collusion of test centre staff, that involved the applicant, and others. Yet, Pearson Language Testing themselves have not put to the applicant claims of fraud by him. The information suggests that they only informed the applicant that the test score had been cancelled due to an anomaly. The applicant was given no opportunity to challenge the undisclosed information held by Pearson Language Testing that the applicant was involved in fraud.  There is no evidence of any review or appeal process available to the applicant to challenge the cancellation of the test score.

9. That lack of due process does not mean that Pearson Language Testing do not believe that the applicant was involved in fraud, given the information to the Department to that effect. However, the failure of Pearson Language Testing to put this issue to the applicant and seek his response is one factor that the Tribunal has taken into account in assessing the probative value of the allegations put by Pearson Language Testing to the Department.

10. The applicant clearly has good English based on his previous English test and his successful studies in English in Australia at the Higher Education sector level. The Tribunal accepts as plausible, given the way the Tribunal understands that education agents can operate in India, that the applicant would have undertaken the unnecessary second test simply on the basis that this was the standard process required by his agent.

11. The Tribunal was inclined to believe the applicant’s evidence in the hearing that he genuinely studied for a few days prior to the test with an expectation that he would achieve a higher score than his previous result, which he did.

12. The evidence that has been provided by Pearson Language Testing of the applicant’s engagement in fraudulent activity is reasonably limited in detail. The Tribunal considers that there is a possibility, that is not remote, that the applicant has been accidentally caught up in a fraud perpetrated by others, or that Pearson Language Testing have made a mistake in relation to him. That potential is reinforced by the fact that all the evidence demonstrates that the applicant’s English was already sufficient when he took the test such as to cast significant doubt on his rationale for seeking a result by fraud.

13. The cancellation of the Student visa is a serious and impactful issue for the applicant. It should not be undertaken lightly. Further, the evidence must satisfy the Tribunal that the applicant committed the fraud.  The onus is not on the applicant to disprove that he participated in the fraud.

14. In summary, the Tribunal accepts that Pearson Language Testing believe that the applicant has engaged in fraud. However, the evidence that has been provided of this is limited. The Tribunal needs to consider the possibility that Pearson Language Testing have made a mistake and accidentally included the applicant with others who were involved in the fraud. Specific allegations have not been put to the applicant by Pearson Language Testing nor has he been given the opportunity to rebut the allegations with them. On the evidence, the applicant had no incentive to cheat. He already had sufficient language skills based on an earlier test and those skills have been demonstrated in his successful studies in Australia.

15. In all the circumstances, the Tribunal has not reached a level of satisfaction that the applicant obtained the test results for the test on 3 November 2014 by fraud, colluding with call centre staff, to switch cables meaning that he did not in fact sit the test for which the successful results were obtained.

16. At most, the Tribunal would be satisfied that there were anomalies in the testing process causing results to be declared invalid. Indeed, this is the extent of the information that has been conveyed to the applicant by Pearsons Language Testing.

17. That being the case, the Tribunal does not consider that, when the applicant provided the answer at section 34 of the visa application form, and indicated that he had achieved a score of 59 in the test taken on 3 November 2014 he, in fact, knew that he had not been the person who had sat the test. The Tribunal is not satisfied that the applicant therefore provided an answer in the application form that was incorrect when it was given, thus requiring it to be corrected in terms of the requirements of s.105 of the Act.

18. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice with respect to the breach of s.105 of the Act.

19. Given that finding, it is not necessary for the Tribunal to consider discretionary factors as to whether the visa should be cancelled.

    DECISON

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    David McCulloch
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    105Particulars of incorrect answers to be given

    (1)If a non‑citizen becomes aware that:

    (a)      an answer given or provided in his or her application form; or

    (b)     an answer given in his or her passenger card; or

    (c)      information given by him or her under section 104 about the form or card; or

    (d)     a response given by him or her under section 107;

    was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

    (2)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.