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2114277 (Migration) [2022] AATA  2430  (23 June 2022)

Last Updated: 2 August 2022

2114277 (Migration)  [2022] AATA 2430  (23 June 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Ms Carina Ford

CASE NUMBER: 2114277

MEMBER: P. Maishman

DATE: 23 June 2022

PLACE OF DECISION: Perth

DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 23 June 2022 at 3:16pm

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – incorrect answers in visa applications – bogus documents – identity details – subject to an exclusion period – period of unlawful residence – applicant changed her name at marriage – Australian citizen spouse – best interests of the Australian citizen children – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; rr 2.12, 2.41

CASES

MIAC v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 186 - Employer Nomination Scheme 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 gave incorrect answers and presented bogus documents in respect of her Temporary Work (Skilled) (Subclass 457) visa lodged on 10 December 2014; and her Employer Nomination Scheme (subclass 186) visa lodged on 20 October 2015. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
3. The Tribunal exercised its discretion to hold the hearing by video conference facilities. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Notwithstanding some delays due to technology issues, the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
4. The applicant appeared before the Tribunal on 28 April 2022 to give evidence and present arguments.
5. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
6. The applicant was represented in relation to the review.
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. The Tribunal had before it a copy of the Departments file. Attached to the file is a non-disclosure certificate issued pursuant to s 375A of the Act. The certificate relates to a number of examination and report documents obtained by the Department that indicate the applicant was the same person as [Alias A] born [DOB 1]. The file includes a Notice of Intention to Consider Cancellation (NOICC) pursuant to s 107 of the Act, sent to the applicant on 22 June 2021. The applicant’s written response on 13 July 2021 refers to, and relies on, previous responses dated 4 February 2021 and 11 February 2021.
11. 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 on 22 June 2021 under s 107 of the Act complied with the statutory requirements.
12. The applicant gave the Tribunal a copy of the delegate’s record of decision with her application for review. The applicant’s visa history as outlined by the delegate is summarised as follows. The applicant applied for a Temporary Work (Skilled) (subclass 457) visa in the name [the applicant’s name] born [DOB 2] with her spouse, [Husband A]. That application was granted on 29 January 2015. The applicant subsequently applied for an Employer Nomination Scheme Migrant (subclass 186) visa in the name [the applicant’s name] born [DOB 2] with her spouse, [Husband A]. That application was granted on 26 May 2016. As evidence of her name and date of birth the applicant provided an Indian passport ([number]); an Indian marriage certificate registered [in] January 2014; and an Indian driver’s licence ([number]).
13. The delegate says a Departmental Forensic Facial Image Examiner reported facial image comparisons of identity photographs provided by the applicant with identity photographs received by the Department on 12 March 2011, in respect of a Student visa application in the name of [Alias A] born [DOB 1], indicate the applicant was the same person as [Alias A].
14. Prior to the hearing the Tribunal received written submissions, documents and a statement from the applicant. The Tribunal also received a statement from the applicant’s husband, [Husband A variant].

Non-disclosure certificate – s 375A

15. The Tribunal sent the applicant a copy of the non-disclosure certificate on 23 March 2022 and invited the applicant to comment on its validity. The applicant provided a written submission that the certificate was invalid because it failed to define the reasons for non-disclosure in sufficient detail to meet the legislative requirements. The applicant submitted the Tribunal should exercise its discretion to disclose the information if appropriate to do so to allow the applicant to be fairly heard.
16. The Tribunal considered the validity of the certificate. The certificate claims release of identified documents is contrary to the public interest because:
    1. it would disclose or enable a person to ascertain the existence or identity of a confidential source of information.
    2. it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods.
17. The Tribunal observes the documents generally relate to the Department’s methods of investigation and verification of a person’s identification.
18. The documents are Departmental working documents and reports. In the Tribunal’s view the documents would not enable a person to ascertain the existence or identity of a confidential source of information.
19. The Tribunal is satisfied however that the documents identified in the certificate would, if they were released, would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would, or be likely to, prejudice the effectiveness of those methods.
20. The Tribunal is satisfied that the reason (b) for nondisclosure provided in the certificate is sufficient for it to consider the certificate valid.
21. The Tribunal does not have the discretion to release documents protected by a nondisclosure certificate issued pursuant to s 375A of the Act. The Tribunal explained to the applicant it does however have an obligation to ensure she is aware of any adverse information the Tribunal would rely on to make its decision and to give her an opportunity to comment on that information.
22. The Tribunal is satisfied the information in the documents protected by the nondisclosure certificate is disclosed in the delegate’s decision record which the applicant gave the Tribunal with her application for review.

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

23. 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.
24. The non-compliance identified and particularised in the s 107 NOICC dated 22 June 2021 was non-compliance with s 101(b) of the Act by providing incorrect answers on her Temporary Work (Skilled) (subclass 457) visa application on 10 December 2014 and an associated Form 1221; and her Employer Nomination Scheme Migrant (subclass 186) visa application on 20 October 2015 and associated Form 80 signed 9 October 2015. The NOICC outlines the visa holder provided incorrect answers to specific questions about:
    • having been known by any other name;
    • having a different date of birth;
    • having another passport in another name;
    • having overstayed a visa in Australia;
    • having been subject to an exclusion period;
    • having been refused a visa; and
    • claiming her place of residence was India, for a period of time when she had previously resided in Australia.
25. The applicant applied for a Temporary Work (Skilled) (subclass 457) visa application on 10 December 2014 and associated Form 1221; and her Employer Nomination Scheme Migrant (subclass 186) visa application on 20 October 2015 and associated Form 80 signed 9 October 2015. The Tribunal has had regard to those documents and is satisfied that the applicant did not disclose that she was previously known by any other name; that she previously had a different date of birth; that she held a passport in a different name; that she had overstayed a visa, been subject to an exclusion period, and been refused a visa in Australia.
26. The Tribunal has had regard to the evidence and information contained on the Department’s file and the evidence provided by the applicant. The applicant does not contest, and the Tribunal finds accordingly, the applicant was previously known as [Alias A], born [DOB 1]; that she had previously held a passport in the name of [Alias A] and travelled to Australia in the name; that she had overstayed a visa, been subject to an exclusion period, and been refused a visa; and that she claimed to reside in India during a period she resided in Australia.
27. The Tribunal is satisfied the applicant did not complete her subclass 186 visa application form in such a way that no incorrect answers were given.
28. The non-compliance identified and particularised in the s 107 NOICC was non-compliance with s 103 of the Act by providing bogus documents in the form of an Indian Passport [number]; a Marriage Certificate and an Indian Driver’s licence [number] purporting to be evidence the applicant was known by the name of [the applicant’s name], born [DOB 2] whose parents were [parents’ names].
29. The applicant declared she adopted her new name upon marriage to her husband in January 2014 after her departure from Australia using the name [Alias A]. The applicant claims not to have taken another person’s identity, but simply to have changed her name using her husband’s surname and changing her first name. The applicant told the Tribunal she obtained identity documents for her new identity [the applicant’s name], born [DOB 2] by providing an affidavit to the Indian authorities attesting that the details on that identification were her correct name and birth date.
30. The Tribunal reasonably suspects the applicant gave a false or misleading statement to the Indian authorities that her true identity was [the applicant’s name] born [DOB 2] and obtained an Indian Passport [number]; a Marriage Certificate and an Indian Driver’s licence [number] showing that identity. The Tribunal finds these are bogus documents as defined in s 5 of the Act.
31. The Tribunal finds the applicant gave the Minister bogus documents, as defined, and did not comply with s 103 of the Act.
32. For these reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 of the Act by the applicant in the way described in the s 107 notice.

Should the visa be cancelled?

33. 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).
34. 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.

35. 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] FCAFC 145; (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.

The correct information

36. The correct information is that the applicant applied for a Student (subclass 573) visa under the name of [Alias A], born [DOB 1], was granted a visa and arrived in Australia using the name [Alias A] [in] December 2008. The applicant was refused a subsequent visa application using the name [Alias A] on 12 July 2012 and remained unlawfully in Australia until 8 January 2014 when she was granted a Bridging E (subclass 050) visa and departed Australia [in] January 2014. As a consequence of remining in Australia unlawfully the applicant was subject to a three year exclusion period restricting the types of visa she could be granted for the purposes of travel to Australia.
37. The applicant’s non-disclosure of her previous identity denied the delegate information about factors material to its consideration about the grant of her visa. The Tribunal gives the correct information weight in favour of cancelling the visa.

The content of the genuine document (if any)

38. The applicant provided genuine documents about her identity with her visa application on 9 July 2008. She provided an Indian passport, document no. [different number], in the name of [Alias A], date of birth [DOB 1], issued [in] 2007, expiry [in] 2017; and a marriage certificate registered [in] May 2008 showing her name as [Alias A].
39. The content of the genuine documents is substantially different from the information contained in the bogus documents. The Tribunal gives the content of the genuine documents weight in favour of cancelling the visa.

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

40. The visa application was made using an assumed identity, supported by bogus documents to support that identity. The delegate was denied the opportunity to consider the correct information and made its decision based wholly on the incorrect information and bogus documents provided by the applicant. Had the delegate been aware of the correct information it may not have granted the visa because the applicant was, as a consequence of previously remaining in Australia unlawfully, subject to a three year exclusion period.
41. The Tribunal gives this factor weight in favour of cancelling the visa.

The circumstances in which the non-compliance occurred

42. The applicant first arrived in Australia wither her then husband on a student visa in 2008. Their relationship failed around 2011 and a subsequent visa application was refused in December 2012 because she was no longer a member of the family unit of her husband, the primary visa applicant. The applicant claims her previous husband did not advise her of the visa refusal and she had no knowledge she ceased to hold a valid visa to remain in Australia. After her separation she commenced a relationship with [Husband A] and they followed up her visa status with the Department. The applicant states she understood the Department’s information to mean she had a permanent exclusion from travelling to Australia. She and [Husband A] departed Australia together [in] January 2014. They applicant adopted the name [the applicant’s name variant 1] and she married [Husband A variant] shortly after their return to India. The applicant obtained a registered marriage certificate in the name [the applicant’s name variant 1] on [a day in] January 2014. [Husband A] returned to Australia and the applicant remained living with his parents in India. The applicant obtained a passport in the name [the applicant’s name variant 1] showing her date of birth as [DOB 2] [later in] 2014. The applicant and [Husband A variant’s] daughter was born on [date].
43. The applicant told the Tribunal she understood the visa preclusion period was permanent, not for just three years. She knew her husband needed to return to his work in Australia and she was pregnant when he returned to Australia after their wedding. She was distraught that her not being able to join him in Australia would result in another divorce and fearful for the future of her daughter. She considered she had no other option than to obtain a new identity to get around the exclusion that affected her return to Australia. She obtained her new identity on the strength of an affidavit to the authorities allowing her to marry and obtain a marriage certificate, and eventually a new passport and drivers licence in her new identity.
44. The applicant was aware she was subject to an Australian visa exclusion period when she departed Australia and took a deliberate and methodical path in order to avoid the enforcement of that exclusion by establishing a new identity. She adopted a new name and obtained a marriage certificate using that name ten days after leaving Australia. She made an affidavit falsely attesting she was born on [DOB 2] and subsequently obtained a passport based on that false attestation. She used those bogus documents to support the misleading information she subsequently provided to the Department in order to gain an immigration advantage. The Tribunal gives the circumstances in which the non-compliance occurred weight in favour of cancelling the visa.

The present circumstances of the visa holder

45. The applicant remains married to and living with her husband [Husband A]. They have been married for eight years and have two children. Her husband is the primary financial provider for the family, working [in two occupations] to make ends meet. The applicant tends to the care of the children and looking after the house. She has done some work to assist financially. The applicant has essentially lived in Australia since 2008 and has established her life with her family in Australia and is involved in the local Indian community. Her children only know the way of life in Australia and have very little Punjabi language skills. The applicant’s husband and children are now Australian citizens.
46. Having considered the above evidence relating to the present circumstances of the applicant, the Tribunal gives substantial weight against cancelling the visa owing to the presence in Australia of the applicant’s Australian citizen spouse and their Australian citizen children.

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

47. In terms of the subsequent behaviour of the applicant concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act, the Tribunal accepts that she admitted her true circumstances after she was confronted with the incorrect information.
48. The Tribunal accords a little weight against cancelling the visa.

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

49. There are no other known instances of non-compliance by the visa holder with the terms of ss 101-105 of the Act.
50. The Tribunal gives neutral weight to this factor in the consideration of cancellation of the visa.

The time that has elapsed since the non-compliance. Any breaches of the law since the non-compliance and the seriousness of those breaches

51. The Tribunal notes that the original non-compliance occurred between 10 December 2014 and 20 October 2015 when the applicant applied for subclass 457 and subclass 186 visas. During the intervening seven years the parties have had a second child. The applicant’s spouse and children are now Australian citizens. There is no information before the Tribunal suggesting there has been subsequent non-compliance with migration requirements.
52. The Tribunal considers there has been a significant amount of time since the non-compliance. Accordingly the Tribunal gives this matter some weight against the cancellation of the visa.

Any contribution made by the holder to the community

53. There is little evidence before the Tribunal of the applicant’s contribution to the community. The Tribunal accept the applicant’s family has been residing in Australia for a significant period. The applicant’s husband is gainfully employed, her children go to school and the Tribunal accepts the applicant is involved in those communities.
54. The Tribunal gives this factor a little weight in favour of not cancelling the visa.

Other matters

55. The Tribunal has considered if there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act. However, there is no evidence to show that anyone’s visa would be cancelled in this way, and this factor does not weigh against cancellation.
56. The Tribunal has considered whether there are mandatory legal consequences to a cancellation decision. It has considered that by her visa being cancelled, the applicant will become an unlawful non-citizen and will be liable to be detained under s 189 and removed under s 198 of the Act if she does not voluntarily depart, although there is no information to show that she would be indefinitely detained due to Australia’s non-refoulement obligations. It has also considered that she will be unable to apply for all but a certain number of visas set out in reg 2.12 of the Regulations by virtue of the operation of the s.48 statute bar. Lastly, if the applicant chooses to apply for another visa she may face a three-year exclusion period under Public Interest Criterion 4013 (depending on the visa he subsequently applies for and whether there are circumstances that justify the granting of the visa within this time). This matter is given weight against cancellation.
57. The Tribunal has considered whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation. The applicant is the mother of two young Australian citizen children. The Tribunal notes that various articles under the Convention of the Rights of the Child are applicable in situations where a child may be separated from one or both parents due to a visa cancellation, such as Article 9(1) that relevantly states as follows:

    States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

58. Furthermore, and as a state that has ratified the Convention, Australia has an obligation to ensure that in all actions concerning children the best interests of the child are a primary consideration: Article 3.
59. The applicant’s children are both under 10 years old. The are substantially reliant on the care of their mother while their father works to support the family. The youngest child has identified development concerns and receives financial support in the form of an NDIS package. The Tribunal accepts that although a diagnosis has not been provided the Tribunal accepts the best prognosis for both children are if they are not separated from their mother. The children would be significantly disadvantaged health wise and financially if they departed Australia with their mother. The family would suffer financial significant hardship if the applicant’s husband departed Australia with the family because he would be unable to obtain work on similar conditions he enjoys in Australia. The best interests of the children weigh heavily against the cancellation of the visa.

CONCLUSION

60. 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. This non-compliance was egregious, and the Tribunal is not able to excuse it by reference to the applicant’s situation at the time of the non-compliance.
61. However, having regard to other relevant circumstances as above, and especially the best interests of the applicant’s Australian citizen children, the Tribunal concludes that the visa should not be cancelled.

DECISION

62. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

P. Maishman
Member

ATTACHMENT – Migration Act 1958 (extracts)

5. Interpretation

(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.

97. Interpretation

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).

98. Completion 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.

99. Information 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.

100. Incorrect 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.

101. Visa 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.

103. Bogus 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.

107. Notice 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.

108. Decision 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.

109. Cancellation 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.

^[*] 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).