Tabanao (Migration)

[2022] AATA 5065

Tabanao (Migration) [2022] AATA 5065 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sandy Tabanao

REPRESENTATIVE:  Mr Davinder Bhogal (MARN: 1575795)

CASE NUMBER:  2208003

HOME AFFAIRS REFERENCE(S):          BCC2021/314324

MEMBER:Margie Bourke

DATE:18 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 18 August 2022 at 5:06pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – ground for cancellation – incorrect information in previous visa application – dependent family member – relationship status – consideration of discretion – grant of visa based on incorrect information – present circumstances of the visa holder – two Australian citizen children – part-time employment – contribution to the workplace – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 359AA, 376

Migration Regulations 1994 (Cth), rr 1.12, 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in relation to her application for the combined Partner subclass 309/100 visa lodged 8 October 2014, and the partner visa application - information for permanent stage processing lodged 23 March 2017 in relation to her marital status and whether she was a dependent of the primary visa applicant, her mother. 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 Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, informal, economical and quick. The Tribunal had regard to the circumstances of the applicant, including that she resided in rural Victoria, and the nature of the review. The Tribunal was satisfied that the conduct of the hearing by video would allow the applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The Tribunal was satisfied that the hearing would not involve a large quantity of documents to be put to the applicant during the course of the hearing. The hearing was scheduled during a time when the availability of in-person hearings were restricted due to the ongoing pandemic, and the Tribunal had regard to the delay and costs that may result if the hearing was not conducted by video. For all these reasons the Tribunal considered this was an appropriate matter for the hearing to be conducted by video.

4. The applicant was invited to attend a hearing by video on 15 August 2022. The applicant and her representatives attended the video hearing, however the Tribunal experienced nationwide technological issues, and the hearing could not proceed. The Tribunal rescheduled the hearing on 17 August 2022.

5. The applicant appeared before the Tribunal by video connection on 17 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages. The interpreter attended by video, and was excused shortly before the end of the hearing due to ill health.

6. The applicant was represented in relation to the review. The applicant’s representative attended the hearing by video.

7. 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

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. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: the applicant applied as the dependent family member aged 18 years or over of the main applicant, her mother, in relation to a combined Partner subclass 309/100 visa. At the time of application of the combined partner visa which was lodged 8 October 2014, in the details of the child or dependent family member aged 18 years or over it was declared that the applicant’s relationship status was “never married or been in a de facto relationship”. At the time of the partner visa application - information for permanent stage processing, lodged 23 March 2017, the applicant’s relationship status was recorded as “never married”. The husband of the applicant subsequently lodged an application for an onshore partner subclass 820 visa on 25 April 2019 in which the applicant in this review is the sponsor, and in this application for the onshore partner 820 visa, it is recorded that the applicant and her husband committed to a shared life together to the exclusion of all others on 2 May 2014 and were married on 23 December 2015. Based on the information provided by the applicant and her husband in the onshore partner 820 visa, the Department concluded that the information provided by the applicant in the combined Partner subclass 309/100 visa that she was the dependent child of her mother, and a member of the family unit of the person with whom she made the combined application, was incorrect information.

12. Based on the written responses to the Department, submissions from the applicant’s representative to the Tribunal, statements from the applicant’s representative at the hearing and evidence at the hearing, I am satisfied that incorrect information was provided by the applicant as set out in the s.107 notice.

13. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Nondisclosure certificate

14. The Department issued a nondisclosure certificate under s.376 of the Act dated 7 June 2022 in relation to 5 folios on the Department file. A copy of the certificate was sent to the applicant, and she was invited to provide written responses as to the validity of the certificate. The applicant did not provide any written responses. In the hearing the applicant’s representative submitted that the applicant did not take issue with the certificate and accepted that it was valid.

15. The Tribunal is satisfied that the certificate is valid, as it is signed, dated, records the reason why disclosure of the information would be contrary to the public interest, and properly engages s.376 of the Act. Three of the five folios are internal emails which are forwarding the referral file or requesting the referral file or referring to the file. These folios are not relevant to the review of the cancellation of the applicant’s visa.

16. Two of the folios contain information which is relevant to the review. These two folios contain information which has been provided to the applicant by the Department in the s.107 Notice, and in the Department’s decision record dated 27 May 2022.  The two folios are entitled the general cancellations network referral form and the initial assessment of an immigration integrity case. The information recorded in these two forms which is relevant to the review includes information that forms the basis of the grounds for the cancellation of the visa. This information is set out in both the s.107 Notice, and the Department’s decision record, and is accepted by the applicant as the incorrect information that was provided by her and is the grounds for the cancellation of the visa.

17. The Tribunal exercise its discretion to disclose the relevant information, and read out the relevant information to the applicant in the hearing, on the basis that the information was not prejudicial as it had already been disclosed, and therefore the probative value outweighs the prejudicial value of the information. The Tribunal wished to ensure that the Tribunal discharged its procedural fairness obligations and acted with transparency in the review.

18. The Tribunal discussed with the applicant and her representative that in the circumstances where the applicant stated that incorrect information had been provided to the Department in the application for the visa and at the permanent stage processing, and where the applicant accepted the analysis of the Department of the incorrect information as set out in the s.107 Notice and the Department’s decision record, the Tribunal did not consider the information in the two folios was required to be put to the applicant pursuant to s.359AA of the Act. The Tribunal was of the view that where the applicant was aware of the information, and had previously been provided with the information, and had responded to the Department and to the Tribunal in relation to the information, there was no ongoing obligation to put the information to the applicant pursuant to the requirements under s.359AA. The applicant and her representative agreed with this assessment.

    Should the visa be cancelled?

19. 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).

20. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

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

22. The correct information: – the correct information is that the applicant was married to her husband on 23 December 2015.

23. The applicant stated that the information recorded by her husband in the application for the onshore partner subclass 820 visa that they committed to a shared life to the exclusion of all others on 2 May 2014, was not correct and that her husband misunderstood this question. The applicant stated that she and her husband decided to marry and committed to each other when the visa was granted in October or November 2015. The applicant’s husband was invited to attend the hearing, and the applicant stated he was not available due to work commitments. The applicant’s husband did not provide any written statement to the review prior to the hearing.

24. The applicant stated that her mother was not aware of her marriage to her husband in December 2015. The applicant stated that her mother did not approve of her relationship with her now husband. The applicant stated her mother did not approve of her marrying because she was too young.

25. The applicant stated that she kept her marital relationship with her husband secret from her mother. The applicant stated that her mother recorded in the application for the visa in 2014 that she had never been married or in a committed relationship, and that her mother recorded in March 2017 that she had never been married, because her mother thought this information was correct. The applicant’s mother did not attend the hearing or provide any written evidence to the review prior to the hearing.

26. The Tribunal has considered the evidence of the applicant that her mother did not know she was married, and her mother completed the information on both the application for the visa in 2014 and the information at the permanent stage processing in 2017. The Tribunal has considered the evidence of the applicant that her husband made an error when completing the information on the application for the onshore partner subclass 820 visa in 2019 in relation to when there committed relationship commenced. The Tribunal does not accept the evidence of the applicant.

27. The Tribunal finds that the correct information is that the applicant commenced her committed relationship with her now husband on 2 May 2014, and was not the dependent child of her mother the time the application for the subclass 309 visa was lodged on 8 October 2014. The Tribunal finds the correct information that the applicant was married on 23 December 2015 which was before she departed the Philippines in January 2016. The Tribunal finds the correct information is that the applicant was married at the time of the information for the permanent stage processing was provided on 23 March 2017. The applicant finds that the correct information is that the applicant was engaged to be married, and was not the dependent child or member of the family unit of the primary visa applicant for the combined application for the subclass 309/100 visa. I give this consideration weight in favour of cancellation the applicant’s visa.

28. The content of the genuine or non-genuine document (if any): – there is no genuine or nongenuine document relevant to this review. I give this consideration neutral weight, neither in favour for or against cancellation of the applicant’s visa.

29. Whether the decision to grant the visa was based wholly or partly on the incorrect information: – I am satisfied that the decision to grant the visa to the applicant was based on an assessment that the applicant met the criteria for the visa. The applicant’s representative in his submission dated 10 August 2022 stated the decision to grant the visa was based on incorrect information. I am satisfied that if the correct information had been provided, the applicant would not have been assessed as being the dependent of the primary visa applicant, or a member of the family unit within the meaning of r.1.12(2) of the primary visa applicant, and therefore the decision to grant the subclass 100 visa to the applicant would not have been made. I am therefore satisfied that the decision to grant the subclass 100 visa was based on the incorrect information provided that the applicant had never been married, and was the dependent of the primary visa applicant and a member of her family unit. I give this consideration weight in favour of cancellation of the applicant’s visa.

30. The circumstances in which the non-compliance occurred: – I am satisfied that at the time of application for the combined partner subclass 309/100 visa on 8 October 2014, the applicant was aged 19 years of age, and at the time of her marriage on 23 December 2015 I am satisfied the applicant was 20 years of age. I accept the applicant was not married at the time the initial application was made, that she was relatively young and that she was living with her mother although in an engaged relationship with her now husband. I have considered the applicant’s evidence that she had no knowledge that her mother had recorded her as not married. I have considered the applicant’s evidence that she had not told her mother she was married. I have also considered that after the applicant was granted her permanent residency subclass 100 visa on the basis of her dependency upon her mother, she travelled back to the Philippines, then her husband applied for a visitor visa to travel to Australia, and then applied for an onshore subclass 820 partner visa sponsored by the applicant. The Tribunal has not heard oral or written evidence from either the applicant’s husband or the applicant’s mother. The Tribunal does not accept the evidence of the applicant that she was unaware that she was declared a dependent and what her responsibilities were if her circumstances changed. The Tribunal does not accept the evidence of the applicant that she was not aware that she had to declare before she travelled to Australia that she was now married and no longer a dependent of her mother. The Tribunal does not accept the evidence of the applicant that she married in secret and her mother was not aware of the situation. The Tribunal does not accept the evidence of the applicant that she was unaware her mother was providing information to the Department that she was not married at the permanent processing stage of the visa application in March 2017. The Tribunal finds that the applicant was knowingly involved in providing false information to the Department in order to obtain a permanent residency visa. I give these considerations weight in favour of cancellation of the visa.

31. The present circumstances of the visa holder: – In addition to the oral evidence of the applicant, I have considered the written statements of the applicant’s husband and mother provided after the hearing at the request of the Tribunal, to confirm the current circumstances of the applicant. I am satisfied that the applicant resides with her husband in rented accommodation in Wodonga, Victoria. I am satisfied that the couple have two children, a son born in 2019 and a daughter born in 2021. These children are Australian citizen children born in Australia with an Australian permanent resident parent. I am satisfied that the applicant’s husband has part-time employment in a factory. I am satisfied the applicant’s mother also resides in Wodonga, and cares for the children when the applicant is at work. I am satisfied that the applicant’s husband is the main income earner for the family, and I accept that the applicant is currently employed on a casual basis, and works approximately three shifts per week.

32. I am satisfied that the applicant has part-time employment as a personal care assistant, and that she completed her personal care assistant certificate III training in 2016 and 2017. I am satisfied that the applicant has been employed at a regional aged care facility for five years as a personal care worker. The Executive Director of the aged care facility where the applicant works provided two statements in support of the applicant dated 16 May 2022 and 12 August 2022, and attended the hearing to give evidence to the Tribunal The witness stated the applicant is a valuable employee who is professional and calming with the residents, and a loved, experienced and respected member of staff. This witness stated that it is difficult to attract employees to regional areas to work in aged care service, and the applicant would be very difficult to replace. This witness also stated that the applicant is a lovely carer, had never been deceitful or under any disciplinary action, has a very gentle nature and is very highly thought of within their aged care facility. This witness stated that the applicant had been invaluable and supportive to their residents, particularly during the difficult experiences during the pandemic and lockdowns. I give these considerations weight in favour against cancellation of the visa.

1. Subsequent behaviour of the applicant concerning their obligations under Subdivision C Ob Division 3 of Part 2 of the Migration Act 1958: – there is no evidence before the Tribunal that the applicant has not complied with her obligations, and I give this consideration weight in favour against cancellation of the visa.

2. Other instances of non-compliance by the applicant: – there is no evidence before the Tribunal that there are other instances of non-compliance by the applicant. I give this consideration weight in favour against cancellation of the visa.

3. Time that has elapsed since the non-compliance: – the non-compliance at the second stage of the permanent visa processing occurred on 23 March 2017, at which time information was provided to the Department that the applicant had never been married. Five years and over four months has elapsed since that time. The Tribunal is satisfied that during those five years the applicant has been employed at the aged care facility and has had two children. I give the consideration to the passage of time since the non-compliance weight in favour against cancellation of the applicant’s visa.

4. Any breaches of the law by the applicant since the non-compliance: – there is no evidence before the Tribunal that the applicant has committed any breaches of the law since the non-compliance. I give this consideration weight in favour against cancellation of the visa.

5. Any contribution made by the applicant to the community: – the applicant stated that she attends a church when she is able, possibly one or two times a month, and sings in the choir. I accept that the applicant contributes to the community through her work as a personal care assistant at an aged care home, assisting people with dementia and in palliative care. I give this consideration weight in favour against cancellation of the visa.

6. Consequential cancellations: – there is no evidence that any other person’s visa would be cancelled under the consequential cancellation provisions of s.140 of the Act. I give this consideration neutral weight, neither in favour for nor against cancellation of the visa.

7. Mandatory legal consequences: – I am satisfied that if the applicant’s visa was cancelled she could potentially become an unlawful noncitizen, with possible consequences of detention and deportation. I accept that the applicant would be impacted by the requirements of s.48 and PIC 4013, which would limit her eligibility to apply for further visas, and impose an exclusion period prior to which applications for future visas could be made. I give this consideration weight in favour against cancellation of the visa.

8. Australia’s International obligations: – as Australia is a signatory to the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, it is incumbent on the Tribunal to consider whether the cancellation of the applicant’s visa would breach Australia’s obligations. There is no evidence that if the applicant returned to the Philippines, of which she is a citizen, that this would breach Australia’s non-refoulement obligations. Pursuant to the Convention on the Rights of the Child, the Tribunal must take into account and give primary consideration to the best interests of the children. Pursuant to the International Covenant on Civil and Political rights the Tribunal must take into account the rights of the family unit, and the rights of the children to be with their parents. The children are currently aged one and two, and have always resided with both parents. I accept the evidence of the applicant that if her visa is cancelled, and she was required to depart Australia, the children and her husband would travel with her and the family would not be separated.

9. The Tribunal has considered the evidence of the applicant that she has family in the Philippines, including her elderly grandmother, her maternal aunt and her family, and her maternal uncle and his family. The Tribunal has considered that the applicant has family members who reside in the Philippines, and that the children would remain in the family unit with both their parents if the applicant’s visa is cancelled. For these reasons, the Tribunal has given primary consideration to the best interests of the children, and accepts that the best interests of the children would be to remain with their parents and in their family unit, and they would have extended family in the Philippines with whom they could reside. The applicant stated that it would not be in the best interests of the children to reside in the Philippines because the family would not have the same financial security. I accept that although the children would remain within their family unit with their parents, and have extended family, they would be in a different environment and culture, and their parents would not have their ongoing security of their current part time employment. The Tribunal is satisfied that if the applicant’s visa was cancelled, Australia would not be in breach of its international commitments. However, the Tribunal gives the consideration of the best interests of the children weight in favour against cancellation of the applicant’s visa.

10. Other relevant matters, including hardship to the applicant and family members: – The applicant stated that if she and her husband returned to the Philippines it would be difficult for him to find employment. The applicant stated that she would not be able to find work in aged care or personal care but would have to “start from scratch”. The applicant stated that conditions in the Philippines would be harder and poorer for herself, her husband and her children than in Australia. The applicant’s mother wrote in her statement that life in the Philippines is different and harder, and the applicant’s husband wrote in his statement that it would be hard for the children to adjust to life in the Philippines. I accept that financially the applicant, her husband and the children may suffer financial hardship if they do not have the same financial income and security. The Tribunal has considered the evidence of the applicant that in the Philippines at the moment the impact of the pandemic is harsher than the impact it is having in Australia. I give the consideration of the potential financial hardship to the applicant and her immediate family members weight in favour against cancellation of the visa.

11. I have carefully considered all the prescribed circumstances as set out in r.2.41, and other circumstances relevant to whether the applicant’s visa should be cancelled. I give the most significant weight to the evidence of the contribution the applicant is making in her workplace, and the difficulty in replacing an employee of her skill, experience and professionalism, particularly in a regional area. The evidence of the applicant’s employer was the overwhelming consideration in my assessment of the circumstances, and is the essential reason why I have found that the applicant’s visa should not be cancelled in this review.

12. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    decision

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

    Margie Bourke
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.