Yeung (Migration)

[2019] AATA 3590

Yeung (Migration) [2019] AATA 3590 (14 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yim Ling Yeung

CASE NUMBER:  1820476

DIBP REFERENCE(S):  BCC2018/147329

MEMBER:Christine Kannis

DATE:14 July 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 visa.

Statement made on 14 July 2019 at 2:25pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – provided incorrect information in second Subclass 417 Working Holiday visa application – lacks credibility as a witness – non-compliance with a previous visa – didn’t work for 3 months in specified work – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 98, 99, 100, 101, 102, 103, 104, 105, 107, 109, 111
Migration Regulations 1994, r 2.41, cl 417.211

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 Immigration to cancel the applicant’s Subclass 500 visa under s.109(1) of the Migration Act 1958 (the Act). The applicant was granted a Subclass 500 visa on 11 October 2017.

2. The Department received information indicating that the applicant may have provided incorrect information in a previous visa application for a Subclass 417 Working Holiday visa.  The applicant applied for the (second) Subclass 417 visa on 20 May 2016.

3. On 14 June 2018, the Department sent the applicant a Notification of Intention to Consider Cancellation (NOICC) of the Subclass 500 visa, setting out the matters indicating non-compliance and inviting her to comment or respond. The applicant did not respond to the NOICC.  The delegate considered the available information and on 10 July 2018 decided to cancel the applicant’s Subclass 500 visa on the basis that she had provided incorrect information in her (second) Subclass 417 Working Holiday visa application.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should not be cancelled.

5. The applicant appeared before the Tribunal on 10 June 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

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

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

10. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b):

    Section 101:

    Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)No incorrect answers are given.

11. The breach of s.101(b) relates to a Subclass 417 Working Holiday visa (the Working Holiday visa) the applicant previously held that was granted on 3 June 2016 and ceased on 5 October 2017. Section 107A of the Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.

12. Section 99 of the Act provides that any information a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of 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.

13. The Working Holiday visa application (lodged by the applicant on 20 May 2016) form included the following questions and answers:

    Q:Have you undertaken specified work in regional Australia for a total of 3 months?

    A:        Yes

    Q:       If Yes, in which industry did this mainly occur?

    A:        Agriculture, Forestry and Fishing

    Q:Do you have approved evidence that you have undertaken specified work in regional Australia for a total of 3 months?

    A:        Yes

    Q:       I declare that the information in this form is complete, correct and up-to-date.

    A:        Yes

14. The application form included a Details of specified work undertaken section and in response the applicant provided the following information:

    ABN  38768554802

    Postcode   6401

    Start date   13 October 2015

    End date   31 January 2016

15. On 17 October 2017 the Department was advised by Double G Farms, the business registered under ABN 38768554802, that it had not employed anyone under the Working Holiday program. The delegate decided the applicant had fabricated information that she worked there for the period 13 October 2015 to 31 January 2016 to facilitate the grant of the Working Holiday (Subclass 417) visa.

16. The above matters were particularised in the s.107 notice sent to the applicant on 14 June 2018.

17. When asked the reason she did not respond to the NOICC the applicant told the Tribunal she did not know she was required to respond. The Tribunal pointed out that the NOICC stated she must respond within 14 calendar days. The applicant then said her agent told her she would need to provide information about the period she indicated she worked in her application form (13 October 2015 to 31 January 2016) and because it was too long ago she was unable to provide any information. She said the agent then started the appeal. The Tribunal informed the applicant that at the time the NOICC was issued a decision to cancel her visa had not been made.

18. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review. The Tribunal put to the applicant information in the delegate’s decision that on 17 October 2017 Double G Farms, the business registered under ABN 38768554802, advised the Department that it had not employed anyone under the Working Holiday program. In response the applicant said:

    ·    When she came to Australia she paid her agent for an all in one service which meant he found her accommodation and a job.

    ·    She did not understand what was printed on the application form and just followed what her flat mate did.

    ·    The application form did not name the employer she said she worked for from 13 October 2015 to 31 January 2016.

19. The applicant told the Tribunal she did some farm work for 88 days when she first arrived in Australia. She said this work commenced on 13 October 2015. She did not provide the name of this employer. She said after the 88 days she worked on other farms because she wanted to experience different work. The Tribunal noted that the applicant arrived in Australia on 5 October 2015 and in the Working Holiday visa application she said she commenced work on 13 October 2015.

20. The applicant provided the Tribunal with several photos. Three photos showed the applicant holding a cauliflower in a market garden. Photos of her in what appeared to be a tomato packing area and photos of her sitting and standing on a Club Car vehicle were provided. Photos of farm machinery and rural settings were also provided.

21. The applicant said when she first arrived in Australia she worked on a farm which grew cauliflower and broccoli. She said a Club Car was used to drive the workers from the office to the workplace to collect the vegetables. She said the photos of her with the cauliflower were not taken when she working at this farm and were taken after she finished at that workplace. The Tribunal noted the applicant’s clothes in these photos were not work clothes. She said she had the photos taken to remember she worked on the farm.

22. The applicant said she undertook tomato packing at another farm after she had completed 88 days at the first farm. She said she took photos of the farm machinery because she found vehicles such as tractors to be interesting.

23. The photos did not establish that the applicant worked for a period of 88 days for one employer. The photos of the applicant with the cauliflower and the tomatoes were not taken in the 88 day period she claimed to have worked when she first arrived in Australia. The photos of the applicant in the Club Car do not indicate when the photos were taken or who owned the vehicle. The applicant said the photos were undated because she printed them from her computer.

24. The Tribunal asked the applicant how she was paid by the first farm for the claimed 88 days. She said she was paid each fortnight in cash and she saved part of her wages. The Tribunal asked her whether she could provide bank statements which showed fortnightly deposits of cash. She said she only banked the money when she visited the city and otherwise she kept the cash in a locker on the farm.

25. The applicant did not dispute that she had not worked for Double G Farms during the period from 13 October 2015 to 31 January 2016. She contended that she worked for one employer during that period and said the application form only indicated an ABN. The Tribunal asked her whether she checked the information provided on the form and she said she just followed her flatmate because she didn’t understand what was written on the form.

26. The Tribunal found the applicant’s evidence problematic because the photos were not provided to the Department following receipt of the NOICC. The Tribunal does not accept that the photos of the farm machinery were taken because they were interesting. The Tribunal does not accept that the photos of the applicant with the cauliflower were taken so she could remember the farm. The dates the photos were taken could not be verified and in the Tribunal’s view it is likely they were taken after the issuing of the NOICC and were taken for migration purposes. The Tribunal does not accept that the applicant worked for one employer for 88 days after she first arrived in Australia. The Tribunal accepts that the applicant may have worked on a farm or farms in regional Australia however the dates and duration of that work is not established by the available evidence.

27. The Tribunal finds that on the application form, in response to questions about the work she had previously undertaken in Australia, the applicant gave incorrect answers by stating that she had completed a total of 3 months work in regional Australia and that she had evidence of undertaking this work. She did not have this evidence. She further provided incorrect responses when she stated that she had worked from 13 October 2015 to 31 January 2016 for an employer with an ABN of 38768554802. She did not work for Double G Farms, the business registered under ABN 38768554802. The Tribunal finds the applicant completed her application form in a way that incorrect answers were given.

28. The Tribunal further finds the applicant declared in her application form that the information provided was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.

29. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers was done without her knowledge or consent. However, the Tribunal is of the view that by instructing an agent to prepare and lodge the application for her and paying the fees for the service, the applicant created an agency arrangement between herself and the agent preparing her application.

30. Further, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s. 98 of the Act states that if the applicant did not fill in her application form, she is taken to do so if she causes it to be filled in or if it is otherwise filled in on her behalf. Section 100 provides that 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. Further, s. 111 states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers.

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

    Should the visa be cancelled?

32. 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).

33. 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 r.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.

34. 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.

35. The applicant was informed at the beginning of the hearing that each of the r.2.41 prescribed circumstances would be considered by the Tribunal and also any other relevant facts and matters.  The Tribunal has had regard to the oral evidence given by the applicant at the hearing and the photos provided.

    The correct information

36. The applicant was granted the Working Holiday visa on 3 June 2016 on the basis that she had worked for at least 3 months in specified work in regional Australia and that she had approved evidence of this work. The Tribunal has found that the correct information at the time of application was that the applicant had not worked for at least 3 months in specified work in regional Australia during the period stated in the application form. The Tribunal has also found that she did not have approved evidence of having undertaken the specified work.

37. The correct information was not provided. This is a significant issue which weighs in favour ofcancellation.

    The content of the genuine document (if any)

38. This is not relevant in this case.

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

39. Clause 417.211(5) requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa and the total period of the work carried out is, or is equivalent to, at least 3 months full-time work.

40. The Tribunal finds that the assessment of the applicant’s previous employment in regional Australia was central to the assessment of her eligibility for the Working Holiday visa. The Tribunal finds that the decision to grant the Working Holiday visa was based, wholly or partly, on incorrect information relating to the applicant’s employment in regional Australia. This weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

41. The applicant said her agent provided incorrect information on her application form. The Tribunal asked the applicant whether on receiving the NOICC she asked the agent to explain the reason for providing incorrect information. She said the agent had disappeared a long time ago and she did not know where his office was located. The Tribunal asked whether she had phoned or emailed the agent. She said she didn’t have his number and so she asked around and then tried to call but he was not there anymore. The Tribunal noted that this evidence was in contrast to her evidence earlier in the hearing that she gave the NOICC to her agent to start the appeal. The applicant did not provide evidence of her interactions with the agent or evidence of payment to the agent.

42. The Tribunal finds the applicant’s submission that her agent provided the incorrect information problematic. The Tribunal is of the view that the applicant had the responsibility to learn what evidence was being submitted on her behalf. The applicant could have made inquiries with the agent, particularly before the application was made, and she could have made a request to check the entire application before its lodgement. In the Tribunal’s view, it was her responsibility to do so to ensure that any information that was being submitted on her behalf was correct and accurate. The applicant told the Tribunal that she did not check her application before it was lodged and said she just followed her flatmate in this regard.

43. The Tribunal finds that the applicant was either complicit in the actions of her agent or she was negligent in her actions and recklessly indifferent in her dealings with the agent.

44. The applicant told the Tribunal she is sorry for providing incorrect information. The Tribunal accepts this but the fact remains that if the applicant had provided correct information in her application, the visa would almost certainly not have been granted.  The circumstances in which the non-compliance occurred, including her reliance on her agent and inability to understand English, are not accepted as justifying the non-compliance.

    The present circumstances of the visa holder

45. The applicant told the Tribunal that her accommodation and food in Australia are provided by two families in Australia. Her family in Hong Kong also send her money for her living expenses and most recently they sent AUD$20,000 in January/February 2019.  All the neighbours in her street know each other and she helps them out whenever she is asked. She helps with their children and walks their dogs. She is healthy and energetic and she is happy to help with tasks such as washing cars and cleaning furniture. She also accompanies them on outings such as going to the circus.

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

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

   Any other instances of non-compliance by the visa  holder known to the Minister and any breaches of the law since non-compliance:  

2. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal is not aware of any other breaches of the law since the non-compliance.

   The time that has elapsed since the non-compliance

3. It has been three years since the applicant provided incorrect answers. The Tribunal does not consider this to be a significant amount of time.

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

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

   Any contribution made by the holder to the community

5. The applicant told the Tribunal she helps her neighbours with household tasks and looks after their children and walks their dogs. The Tribunal noted that two of the families provide the applicant with accommodation and food. The Tribunal gives minimal weight in favour of not cancelling the visa on the basis that the applicant helps her neighbours.

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

7. In addition to the prescribed matters in r.2.41, the Tribunal has had regard to matters under policy include the following.

   Other considerations

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

   ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140;

   ·whether there are mandatory legal consequences to a cancellation decision; for example

   §  whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non-refoulement obligations;

   §  whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g.s.46A, s.46B, s.48, 48A etc.); and

   §  whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s.189 and removed under s.198

   ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; for example:

   §  if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;[1]

   §  whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment; and

   ·any other relevant matter.

   Whether there would be consequential cancellations under s.140

   [1] This is consistent with the High Court’s decision in MIMA v Teoh (1994) 183 CLR 273, and with Article 3.1 of the UN Convention on the Rights of the Child 1989 (CROC) which states: ‘In all actions concerning children … the best interests of the child shall be a primary consideration’. For guidance on what constitutes an ‘action concerning children’ see Suleyman v MIMA [2000] FCA 610 (Mathews J, 12 May 2000) at [38] and Tien v MIMA (1998) 89 FCR 80 (Goldberg J, 3 December 1998) at 105.

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

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

10. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

11. There are no provisions in the Act which prevents the applicant from making a valid visa application without the Minister’s intervention although the applicant may have limited opportunities when making future visa applications in Australia.

12. While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if her visa is cancelled, she has benefited from providing the incorrect information in the Working Holiday visa application and it is likely that she would not have been granted that visa if she had provided correct or accurate information about satisfying the work requirement.

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

13. There is nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation.

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

14. The applicant said she wanted to stay in Australia to improve her English language skills by studying English courses. She said this will enable her to obtain work on ships that sail internationally. To date, because of her poor English language skills, she has only been able to work on ships travelling between Hong Kong and Macau.

15. The applicant also told the Tribunal that she has been told that the quickest way to learn English is to live with an English speaking family, which she has done before and since the NOICC was issued.

16. The Tribunal is mindful that the applicant is eligible to make a Student visa application in the future, despite the cancellation. The Tribunal acknowledges that the applicant would be subject to an exclusion period which may delay her study plans, although there is also a provision to waive that requirement.

    Conclusion on the exercise of the discretion

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s.101.

18. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law.  The Tribunal accepts that the applicant may suffer hardship if she departs Australia without significantly improving her English language skills as this may limit her employment opportunities. The Tribunal also accepts that certain hardship will be caused by the cancellation because the applicant’s Student visa options would be limited by the cancellation, at least in the immediate future. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. There are no consequential cancellations.

19. The Tribunal accepts that if the applicant’svisa is cancelled, and unless she is granted another visa, she may be subject to detention, although the applicant may be eligible to apply for othervisas.

20. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect answers. The Tribunal has formed the view that the applicant did not take adequate steps to ensure the correctness of her application. Having instructed an agent to lodge the application on her behalf, the applicant then did nothing to check the content of the application. The Tribunal does not accept that the applicant worked for one employer in regional Australia from 13 October 2015 to 31 January 2016. It was common ground that she did not work for Double G Farms, the business registered under ABN 38768554802.  In the Tribunal’s view, the fact that the decision was based on incorrect answers outweighs other considerations.

21. 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 be cancelled.

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    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.