1713060 (Refugee)

[2021] AATA 567

1713060 (Refugee) [2021] AATA 567 (13 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713060

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Sean Baker

DATE:13 January 2021  

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 13 January 2021 at 1:48pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – incomplete and incorrect information provided in visa application – name, date and place of birth and citizenship – correct information provided in citizenship identity interview – religion and ethnicity – Afghani Shia Hazara born and living in Pakistan – discretion to cancel visa – country information – would have engaged protection obligations in any case – hardship to Australian citizen wife and children if visa cancelled – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109(1), 425(2)(a)

Migration Regulations 1994 (Cth), r 2.41

CASE

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

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 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information regarding his nationality in the application process and therefore had not complied with section 101 of the Act in his application for a Protection visa, and that the reasons for not cancelling the visa were insufficient to outweigh his non-compliance. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by his registered migration agent. The applicant, with the assistance of his agent, has provided material to the Tribunal. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it: s. 425(2)(a).

4. 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

5. 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.

6. 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.

7. 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?

8. 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 ss 101(a) and 101(b) in the following respects:

   “• In response to question 1, you stated that you name was [Alias], this is incorrect as by your own admission and through documentation you have provided it appears your name is [the applicant]

   • In response to question 7 you stated that you were born in [Year 1], this is incorrect because by your own admission and through documentation you have provided it appears you were bom in [Year 2]

   • In response to question 8 you stated that you were born in Malistan, Ghazni, Afghanistan, this is incorrect because by your own admission and through documentation you have provided it appears that you were born in Pakistan

   • In response to question 20, you did not provide a response about your current citizenship; the complete response would be that you are a citizen of Pakistan.

   • In response to question 21 you stated that you did not hold the citizenship of any other country, this is incorrect because by your own admission and through documentation you have provided it appears you are a citizen of Pakistan

   • In response to question 22 you stated that you did not have the right to reside in any other country, this is incorrect as by your own admission and through documentation you have provided it appears you have the right to reside in Pakistan

   • In response to questions 42-46 you referred to your statutory declaration that was provided with your Protection Obligations Determination. In this declaration you outlined that you could not return to Afghanistan as you are a Hazara of Shia Muslim faith and you feared persecution from Pashtun groups and the Taliban. You stated that you had nowhere else to go, this is incorrect as by your own admission and through documentation you have provided it appears that you are a Pakistan citizen and you have the right to reside in Pakistan.

   You have stated that you feared persecution in Afghanistan and that you could not return there, however, you have since advised the Department that you are a citizen of Pakistan and have provided copies of documentation to support this claim. Additionally, you have travelled back to Pakistan for approximately three months which indicates that you do not fear harm in Pakistan. As this adverse information was material to the determination that you were owed protection, it appears that you have the right to reside in Pakistan and that you may not have engaged Australia’s protection obligations.

   I therefore consider that you have not complied with section 101(a) of the Act because you have not answered all questions on the application for a class XA subclass 866 Protection visa, specifically question 20.

   I also consider that you have not complied with section 101(b) of the Act because you have provided incorrect answers in your application for a class XA subclass 866 Protection Visa.”[1]

   [1] Department file pages 116 – 115.

9. It is worth noting that at his Australian Citizenship identity interview that his correct name was [the applicant], that he was born in Quetta and held Pakistani citizenship, that he was born in [Year 2], his father had passed away around 2007/2008 from natural causes, that he has a brother who was a Pakistan national and lived in Australia, and that the applicant had attended school and then university in Pakistan.

10. The applicant provided a number of copies of identity documents including a Pakistani Drivers licence which referenced a National Identity Card number, a Pakistani passport, and educational certificates.

11. In his response to the s.107 notice the applicant conceded that there had been non-compliance in the manner described, but also explained that at the time of his application and presently he feared returning to either Pakistan or Afghanistan.

12. Having had regard to the information before me and to the concession of the applicant, I find that there has been relevant non-compliance in relation to his name, date of birth, place of birth, citizenship, and right to reside in any other country, and the statement in his statutory declaration that he had nowhere else to go (given that he could, by virtue of his citizenship, go to Pakistan). I do not accept, and nor do I consider it has been particularised that the fact the applicant returned to Pakistan means that he does not fear harm there.

13. I also note that the applicant’s claims for protection dealt materially with his situation in Pakistan, which as discussed below is not materially affected by the incorrect information. I have considered the most recent submission which indicates:

    [The applicant] maintains however that he is a Shia Muslim of Hazara ethnicity. We submit that, had [the applicant] provided his true nationality, he still would have been granted a Protection visa on the basis of his religion and ethnicity, as demonstrated by the country information (discussed further below) and the fact that [the applicant]’s brother, who comes from precisely the same background as [the applicant], was granted a SHEV visa on the same basis.

14. For these reasons, the Tribunal finds that there was non-compliance with ss.101(a) and 101(b) by the applicant in the way described in the s.107 notice and as accepted above.

    Should the visa be cancelled?

15. 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).

16. 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.

    the correct information

17. In this case the applicant has conceded that he provided incorrect information and did not answer all questions, breaching s.101. As discussed below, I have had regard to the reasons why the applicant felt compelled to do this. I have also considered and appropriately weighed the claim that had he provided the correct information he would still have engaged Australia’s protection obligations.

18. However, there are significant policy reasons why s.101 and the cancellation regime of s.109 exists. The protection assessment system in Australia relies on applicants honestly and accurately providing their details and circumstances, and the migration and security settings more generally require persons to provide their true identity. Not to do so leads to diminishing trust of the community for the process. Having regard to what I consider this strong public policy reasons, I give this factor significant weight towards the visa being cancelled.

    the content of the genuine document (if any)

19. 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 or a bogus document

20. I have had regard to the submissions. The most recent submission argues that the accepted circumstances of the applicant mean he would have been granted a protection visa had his true circumstances been known. I think that this does not engage with the question posed here, however. The wording of this factor makes it clear that the question being posed is whether the reasoning process by which the original decision maker arrived at the decision to grant the visa was affected by the provision of the incorrect information.  The factor asks whether the decision was based wholly or partly. That is, it does not ask whether the outcome would be different, but instead seeks to consider how the decision maker arrived at that outcome.

21. When considered in this manner, I consider that the answer to the question posed here is that the reasoning of the delegate was based, to some substantial degree, on the incorrect information that the applicant was a national of Afghanistan, not Pakistan. This affects the country of reference for a protection assessment and is therefore fundamental to the process by which a decision maker assesses protection claims. To argue that the provision of incorrect information in this case was irrelevant (as opposed to whether the outcome may have been the same) is not, in my view, sustainable.

22. On this basis I give this factor some weight towards the visa being cancelled.

    the circumstances in which the non-compliance occurred

23. The applicant has provided detailed information which has been consistent throughout the visa process and the cancellation process about credible fears he held for his life, supported by country information about the situation for Hazara in Quetta at that time as set out in the agent’s 6 June 2017 submission. This information has not been disputed.

24. The applicant makes further, credible claims that he was told by others that he should claim to be Afghan in making his protection application. As above, I consider the provision of false information in a visa application, and particularly in a protection application, to be very serious. However, I also accept that a person who is in fear and who has been told by others that he should present as an Afghan may make irrational decisions to do so in the face of considerable fear of return. This situation would have been compounded by him not being familiar with the process of protection.

25. I give this consideration some weight towards the visa not being cancelled.

    the present circumstances of the visa holder

26. The applicant is married to an Australian citizen, whose father was granted protection as an Afghan Shia Hazara. The couple have two children who are also Australian citizens, the first child being approximately [Age 1] and the second child being approximately [Age 2].

27. I have had regard to the statement of the applicant and the birth certificates of his two children. I note that in his statement he says that because his children are recognisably Hazara Shias, and would be recognised as foreigners in Pakistan, they would be at risk of kidnapping and extortion and therefore he would not return with the children.

28. Having regard to his statement and to the country information referred to below, I accept the evidence of the applicant that he would choose to return to Pakistan alone without his children or wife.

29. This would lead to the splitting of the family. I note that the applicant’s wife does not currently work and would have difficulties supporting herself and the two young children. This will have been compounded by the fact that the applicant has been unable to work whilst his visa has been cancelled.

30. I have also had regard to the applicant’s evidence that his mother has recently died and that he would not be culturally able to live with his sisters, meaning he would have difficulties finding somewhere to live in Quetta or elsewhere in Pakistan. I have also had regard to his colouring claim that COVID-19 is rampant in Pakistan.

31. The applicant has provided evidence that prior to the cancellation he worked as a security guard and for a market research company.

32. I have carefully considered the present circumstances of the applicant. The evidence before me, and that I have accepted, is that if the visa remains cancelled leading to the applicant being removed to Pakistan, this would lead to a separation of the family. This would, I consider, cause very considerable hardship to the applicant, but also to his Australian citizen wife, and his two small children. They would be deprived of their husband and father, and also deprived of his capacity to work and support them. This would, I find, lead to significant hardship to Australian citizens. This factor, I consider, must therefore be weighted very significantly towards the visa not being cancelled.

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

33. The applicant disclosed the information during the identity interview for his Citizenship application. The information before me indicates that since that time he has complied with all requirements made by the Department and has voluntarily provided identity information to establish his Pakistani nationality. I give this factor some little weight towards the visa not being cancelled.

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

34. There are no other instances of non-compliance by the applicant on the information before me. As did the delegate I give this some little weight towards the visa not being cancelled.

    the time that has elapsed since the non-compliance

35. The non-compliance occurred in 2011, nine years ago. It has been over two years since the applicant’s visa was cancelled and since he has held a substantive visa and been able to work.

36. In the time he has lived in the Australian community he has worked, married and had children and established himself within the Australian community.

37. I give this factor some weight towards the visa not being cancelled.

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

38. There is no information that the applicant has breached the law since the non-compliance. As did the delegate I give this factor some little weight towards the visa not being cancelled.

    any contribution made by the holder to the community.

39. The applicant has worked, supported his family and has established himself within the Australian community. I give this factor some little weight towards the visa not being cancelled.

    Policy considerations

40. 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.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

41. The delegate set out in detail the mandatory legal consequences. In short, as an IMA whose protection visa had been cancelled, the applicant would be barred from making a further visa application whilst in the migration zone. He would be liable to removal and if that were not possible, he would be liable to mandatory detention until he was able to be removed. Were he unable to be removed, his detention may be indefinite.  

42. On the basis of my consideration of the country information in relation to Hazaras in Pakistan below, I consider that there is a real, foreseeable possibility that the applicant would not be able to be removed and may suffer a long period of detention. I therefore give this factor significant weight towards the visa not being cancelled.

    whether there would be consequential cancellations under s.140

43. There were no consequential cancellations in this case.

    whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

44. It is not disputed that the applicant is a Hazara Shia male who was born and holds citizenship of Pakistan. He lived in Quetta.

45. I note that the delegate gave significant weight to the fact the applicant returned to Pakistan. I have not weighted this highly in considering the question of non-refoulement – the visit was for a short period and was made, I find, for a compelling reason, the serious illness of his mother, who has now passed away.

1. The Department of Foreign Affairs and Trade Country information report on Pakistan of 20 February 2019 states that LeJ primarily targets Shia, especially the Hazara community in Quetta.[2] The report contains a detailed analysis of the situation for Hazara in Pakistan, noting they have faced official and societal discrimination in Pakistan,[3] that ‘a large number of official and non-government interlocutors report that Hazaras in Quetta continue to face significant risk of violence,’[4] and that ‘Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment.’[5] This section concludes with DFAT’s assessment that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs (and face a higher risk than other Shi’a due to their distinct appearance and to segregation).[6]

   [2] DFAT Country Information Report Pakistan, 20 February 2019, 2.89

   [3] DFAT Country Information Report Pakistan, 20 February 2019, 3.29

   [4] DFAT Country Information Report Pakistan, 20 February 2019, 3.32

   [5] DFAT Country Information Report Pakistan, 20 February 2019, 3.36

   [6] DFAT Country Information Report Pakistan, 20 February 2019, 3.47

2. This information is confirmed in other reputable government reports including the October 2020 European Asylum Support Office report which states that ‘most of the sectarian violence in 2019 was directed towards the Shia community (Hazara).’[7] This information accords with numerous other government and non-government reports on the situation for Hazara in Pakistan.

   [7] EASO, Pakistan Security Situation Report, October 2020, 2020_10_EASO_COI_REPORT_Pakistan_Security_Situation_Final (europa.eu)

3. I have had regard to the applicant’s claims about the situation for him and his family in Pakistan. Importantly these claims were accepted by the original delegate and are not affected by the conclusion drawn by the cancellation delegate and myself that the applicant is a national of Pakistan. I accept that the applicant, and his family, are Hazara Shias who lived in Quetta. I accept that the applicant, and his family, were targeted by militants for reasons of their religion, ethnicity, and their actual or perceived wealth and status in the Hazara community. Having regard to the country information excerpted above, I find that if the applicant returned to Pakistan now or in the reasonably foreseeable future, there is a real chance, that is one that is not remote, that he would be seriously harmed for reasons of his religion, ethnicity and actual or perceived wealth and status in the Hazara community. I find that the government of Pakistan has shown itself to be unable or unwilling to protect the applicant and other Hazara against the harm feared.

4. There is a strong basis to conclude that the applicant faces persecutory conduct if returned to Pakistan. As above, I do not think that this is displaced by his brief return, for a compelling reason.

5. I do not believe that it is legally, logically or ethically plausible to maintain that cancellation of this visa would not lead to the applicant being removed from Australia and Australia potentially therefore being in breach of our non-refoulement obligations to the international community. As the cancellation delegate went through at length, there is no legal pathway available to the applicant to seek a further visa in Australia. Therefore, the Act requires the removal of the applicant. Therefore, a consideration, in good faith, must be made of the question of refoulement as required under Department policy. I see no reason in this case to depart from policy. In my view, taking account of the applicant’s claims and the country information, this consideration alone would militate very highly against cancellation of the visa.

6. I turn to consider the principle of family unity. This is a principle which stems from a number of international human rights treaties to which Australia is a party, and is expressed as a universal consensus that the family is entitled to respect and protection.[8] It is accepted that such a principle is of central importance. In this case, the applicant states, and I accept given the circumstances, that the applicant would choose to be returned to Pakistan without his wife or children. The family would be split for, at best, a number of years and possibly for an indeterminate time. I consider that the principle of family unity here strongly suggests the visa not be cancelled to preserve the family unit.

   [8] See Nicholson, F., “The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied” January 2018, Division of International Protection UNHCR, PPLA/2018/01,

7. I note also that the best interests of the child, which in administrative decisions must be a primary consideration, also strongly support the visa not being cancelled – the two young Australian citizen children’s best interests would be for their father to remain in Australia where he could care and support them and their mother.

8. The children are Australian citizens. Australian citizenship brings obligations, but also rights and legitimate expectations. I believe that the rights of these children to have their father able to care and support them is a paramount consideration.  I consider their rights as Australian citizens to add further weight towards the consideration of the best interests of these children.

9. For the above reasons, I give this consideration very significant weight towards the visa not being cancelled.

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

10. In my view this factor has been discussed above.

11. I have carefully assessed the applicant’s claims and his circumstances. I have paid careful regard to the findings of the cancellation delegate. In my view, having assessed the factors I am required to assess and those factors set down under policy which I see no reason in this case to depart from, in this case I find that the factors against cancellation overwhelmingly outweigh those towards cancellation of the visa.

    Conclusions

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. However, 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 866 (Protection) visa.

    Sean Baker
    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.