1917175 (Migration) - [2023] AATA 1442

1917175 (Migration) [2023] AATA 1442 (11 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Henry Neil Howard Christie (MARN: 9361859)
CASE NUMBER:  1917175
MEMBER:Simone Burford
DATE:11 May 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
Statement made on 11 May 2023 at 5:00pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – subclass 155 (Five Year Resident Return) visa – applicant had given incorrect answer – applicant had provided different details as to his family composition – applicant has provided a series of non-genuine documents – applicant’s true identity was not in dispute – was accepted to be an Afghani Hazara – cancellation would cause significant hardship – best interests of the child – decision under review set aside
LEGISLATION
Migration Act 1958, ss 46A, 101, 103, 107, 109, 375A
Migration Regulations 1994, r 2.41, Schedule 2
CASES
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 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa as they concluded the applicant had provided incorrect answers in certain respects in relation to his Protection visa application (the visa which he held prior to the grant of the Subclass 155 visa) in breach of s 101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a [age]-year-old married man who claims to be a citizen of Afghanistan. According to Departmental records, he arrived as an irregular maritime arrival on [date] April 2012.
The applicant was granted a permanent Protection (Class XA) (Subclass 866) visa on 5 September 2013, based primarily on his alleged status as a Shia Hazara from Afghanistan. He was granted a Resident Return (Subclass 155) visa on 3 August 2018. That visa was cancelled on 24 June 2019 and is the subject of this review.[1]
[1] The Tribunal notes s 107A provides that failure to comply with ss 101(a) and 101(b) of the Act in connection with a previous visa application may be grounds for cancelling the visa holder’s current visa
According to the applicant’s evidence, he has a wife and two children living in Quetta, Pakistan. The applicant and his wife married around 2009. His wife is an Afghani citizen who left Afghanistan when she was around [age] years old.
The cancellation
The notice
On 29 April 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Resident Return visa, on the basis of non-compliance with s 101(b) of the Act. That subsection provides that no incorrect information must be given in the visa application process and that information must be updated when it is not correct.
The NOICC set out as the grounds for the cancellation the applicant’s responses included in the following visa or citizenship applications:
·The applicant’s application for the Protection (Subclass 866) visa lodged on 16 July 2012. The NOICC included the responses to questions in Part B and C of that application form;
·The applicant’s application for Australian citizenship lodged on 5 January 2017. The NOICC included information contained in Form 80 and documents provided in support of the application;
·The applicant’s application to sponsor his spouse for a Combined Partner visa lodged by his spouse, [Ms A], on 15 July 2017. The NOICC included information from the record of responses form ‘Sponsorship for a partner to migrate to Australia’; and
·The applicant’s application for a Resident Return visa (Subclass 155) application lodged on 1 August 2018. The NOICC included answers to questions on the application form.
The NOICC also detailed responses or information provided in two other visa applications:
·An application for an Orphan Relative (Subclass 117) visa lodged in Islamabad, on 7 June 2006 in the name of [Alias 1] (DOB [Date 1]); and
·An application for a Provisional Partner (Spouse) (Subclass 309) visa lodged on 29 August 2005 by [Ms B], sponsored by her spouse [Mr C]. A secondary application was lodged as part of this application by [Alias 1] (DOB [Date 1]), on the basis of being a member of [Ms B]’s family unit, namely, her brother in law ([Mr C]’s brother).
Those applications were refused.
The particulars of the non-compliance were in relation to the applicant’s claimed identity.
The NOICC suggested that the Department had relied on results from a forensic facial image examination to verify the applicant’s identity. In addition, the Department had before it information provided in the Orphan Relative (Subclass 117) visa and the Provisional Partner (Spouse) (Subclass 309) visa applications.
According to the NOICC, as a result of biometrics data crossmatching, the Department identified the applicant as having similarities with another identity who had had previous dealings with the Department. A Facial Image Comparison Report was completed on 11 April 2019, which compared photographs from the applicant’s application for a Protection (Subclass 866) visa and the Orphan Relative (Subclass 117) visa. The photographs compared were for applicants whose identities were declared as:
[applicant’s name] ([Date 2],M).
[Alias 1] ([Date 1],M).
The findings of the Forensic Facial Image Examiner were that these were the same person. The NOICC stated that this indicated that the applicant represented himself as another identity known as [Alias 1] and made previous applications for a visa for Australia in the name of [Alias 1].
The NOICC detailed that the applicant had provided different details as to his family composition in his visa applications over time with his mother’s and sister's names having been declared in each visa application but his father's name differing, and his brothers' names having not been declared since his arrival onshore in 2012.
The NOICC also detailed that multiple Afghan Taskeras had been provided to the Department in different identities under these two names. The NOICC detailed that in a statutory declaration provided as part of the citizenship application, the applicant declared he lost his legitimate Taskera and instead of travelling to Afghanistan, he obtained a Taskera ([Taskera 1]) in Pakistan through “some arrangement with local people". The delegate considered this document to be a bogus document. The applicant further declared he had obtained another Taskera with correct information ([Taskera 2]) issued on [date] June 2017 in Afghanistan. The NOICC noted that Departmental movement records indicated the applicant was in Australia at the time that document was issued, raising concerns regarding its validity.
On the basis of this information the delegate considered the applicant also went by the name [Alias 1] and had applied for multiple visas using different names and birthdates.
The NOICC stated that there was non-compliance with s 101(b) as the applicant provided incorrect answers to questions 1, 3 and 12 of Part B of Form 866 (relating to his name, visa history and relatives in Australia) and questions 1, 4, 8 and 31 of Part C of Form 866 (relating to his name, aliases, date of birth and age and travel/identification documentation).
The applicant’s response
As noted in the delegate’s decision on 24 June 2019, the applicant provided a response to the NOICC. The applicant’s representative provided written submissions essentially acknowledging that there was non-compliance. He also provided country information supporting the applicant’s claims to be owed protection.
It was submitted that:
The applicant accepts that he has given incorrect information concerning his date of birth, his change of name, his father and his siblings, and in part his history. . ..his change of name arose initially because he was concerned with being targeted by enemies of his family in Afghanistan and he commenced to use the name [applicant’s name] whilst in Pakistan and well in advance of any decision to come to Australia.
The applicant also claimed that he was advised that he should not admit to having two brothers in Australia, nor to having made a previous unsuccessful visa application for Australia. Based on this advice, he did not provide the history of persecution suffered by his family.
The applicant submitted that his ‘actual family history’ was that his second eldest brother was taken by the Taliban in 1998 and his eldest brother [Mr C] fled Afghanistan in early 2000 due to threats from the Taliban. In 2003, the applicant's father was taken away by Sazman-e Nasr militia who opposed the Hezb-e Harakat party and were aligned with the Taliban. The applicant’s mother and her four younger sons fled from their home in Malistan and sought refuge in Quetta, Pakistan. His older brother was eventually released and came to Quetta, ultimately settling in [Country 1]. At the time of the applicant's arrival in Australia in 2012, the applicant's father was still missing and believed to be dead. Late in 2012 or early 2013, the applicant’s father managed to escape and with the help of a smuggler managed to get to Quetta and make contact with his remaining family there. His father’s health had suffered as a result of his treatment in Afghanistan and he died in September 2017.
The balance of submissions dealt with the risk to the applicant in returning to Afghanistan, the situation of his wife and children in Pakistan and his contribution to the Australian community.
The delegate’s decision
On 24 June 2019, the delegate decided to cancel the applicant’s visa. In the decision record the delegate noted the matters set out in the s 107 notice and concluded that the applicant did not comply with s 101(b) of the Act. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled, taking into account the applicant’s submissions about such matters. The delegate found that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.
Application for review
The applicant applied for a review of the delegate’s decision. A copy of the delegate’s decision record was provided to the Tribunal for the purposes of the review.
The applicant appeared before the Tribunal on 15 March 2022 and 23 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr C] and [Mr D], two of the applicant’s brothers in Australia.
The Tribunal hearings were conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent who also acted for him before the delegate. The representative attended the Tribunal hearings.
The following documents were submitted in support of the review application:
·Copy of Refugee Review Tribunal Decision Record [dated] 23 September 2004 (relating to the applicant’s brother);
·Copy of Migration Review Tribunal Decision Record [dated] 22 January 2008 (relating to another brother of the applicant);
·Applicant’s Statement dated 14 March 2022;
·Statement from the applicant’s brother, [Mr C], dated 17 May 2022;
·Statement from the applicant’s brother, [Mr D], dated 17 May 2022;
·Human Rights Watch article, ‘“We Are The Walking Dead” Killings of Shia Hazaras in Balochistan, Pakistan’ published June 2014;
·Department of Foreign Affairs and Trade (DFAT) Thematic Report on Political and Security Developments in Afghanistan (August 2021 – January 2022) dated 14 January 2022;
·Human Rights Watch online article, “Afghanistan: Economic Roots of the Humanitarian Crisis”, dated 1 March 2022; and
·Statement from [Mr E] from [a Hazara community organisation] dated 31 May 2022.
The applicant’s representative also made written submissions dated 15 March 2022, 18 May 2022, 30 May 2022 and 3 February 2023.
In submissions made on 15 March 2022, the applicant’s representative contended that while the applicant’s visa was a Resident Return visa, it was based on the previous grant of a Protection visa and any consideration of cancellation should have Australia's continuing protection obligations as the starting point. It was submitted that having regard to the prevailing country circumstances in Afghanistan for the reasonably foreseeable future, including country information contained in the DFAT Thematic Report relating to Afghanistan, dated 14 January 2022 (in particular paragraphs 3.5 and 3.8), the applicant was owed protection both by reason of his ethnicity and by reason of his Shia religion. As such, the consequences of cancellation, being either return to a country where he would face a real risk of serious harm or alternatively would be indefinitely detained in Australia, rendered cancellation unreasonable. It was contended in this regard that this could not be resolved by relying on the mere possibility of the Minister granting the applicant a different type of visa under his discretional power.[2] In such circumstances, the balance should weigh in favour of not cancelling the visa.[3]
[2] Citing EPU v Minister for Immigration (No.2) [2021] FCA 1536 at Par 123-172
[3] Citing by analogy GNLS v Minister for Immigration [2020] AATA 4418; 1918722 (Refugee) [2021] AATA 3503
The applicant’s 18 May 2022 submissions and post hearing submissions on 30 May 2022 to the Tribunal acknowledged the applicant’s non-compliance with s 101 of the Act and submitted that there were compelling reasons against the cancellation of the applicant’s Resident Return visa. These included:
·The fact the applicant’s true identity was not in dispute and that he was accepted to be an Afghani Hazara;
·The fact the applicant was owed non-refoulement obligations, could not be returned to Afghanistan without facing a real risk of serious harm and would, in the alternative, face indefinite detention in light of the restrictions on irregular maritime arrivals making onshore visa applications and the uncertainty associated with the Minister lifting the bar on any further application;
·The impact cancellation would have on the applicant’s wife and children in Pakistan and their prospects of obtaining a Partner visa to come to Australia;
·The risks to the applicant and his family in Quetta, Pakistan;
·The impact of cancellation on the applicant’s family in Australia including his siblings and nieces and nephews who were Australian citizen children;
·The contribution the applicant has made while in Australia, including through operating a small business as a [Occupation 1].
The applicant’s representative made further submissions on 13 February 2023 in relation to the Government announcement introducing the new Resolution of Status (Subclass 851) visa. That visa allows for the permanent resolution of status for certain visa holders, including TPV and SHEV holders who arrived in Australia before 14 February 2023.[4]
[4] >
The applicant submitted that if the delegate’s decision is affirmed on review, the applicant will not be eligible for this new visa and, subject to Ministerial Intervention, he will be required to leave Australia and return to Afghanistan, with the implication that if he fails to leave Australia, he may be subject to indefinite detention pending removal to Afghanistan. It was submitted that there can be no assumption by the Tribunal that the Minister will exercise his non-compellable power to intervene. It was submitted that the introduction of the new Status Resolution visa added weight to the applicant’s contention that the Tribunal should not rely on ‘the uncertainties of a non-compellable Ministerial Intervention’.
Non-disclosure certificate
The Tribunal notes there is a certificate dated 10 July 2017 issued under s 375A of the Act on the Department’s file with respect to the cancellation decision. Under s 375A, the Minister can certify that the disclosure of any matter or information contained on identified folios of the Departmental file would be contrary to the public interest. The legislation requires the Tribunal to do all things necessary to ensure that a document or information certificated under s 375A is not disclosed to any person other than the member constituted to the case.
The certificate indicated the release of the information would be contrary to the public interest because the folios disclosed lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would or would be likely to prejudice the effectiveness of those methods.
The Tribunal notified the applicant of the existence of the certificate on file at the first hearing and provided a copy to his representative. The Tribunal invited the applicant to make submissions with respect to the validity of the certificate within 14 days following the hearing.
The Tribunal noted in the event it found the certificate to be valid, the material covered by the certificate was in part covered in the delegate’s decision, and in any event to the extent the information was adverse to the applicant and may form the reason or past of the reason for affirming the decision under review, the Tribunal would need to put the gist of the information to the applicant.
The applicant did not make any submissions as to the validity of the certificate and at the next hearing confirmed through his representative that he did not intend to do so.
Following the hearing it became evident that the original certificate was unsigned. The Tribunal notified the Department of this and invited them to consider the certificate. As a result, a signed version of the certificate was issued on 19 April 2023. The applicant was provided with a copy of that certificate on 21 April 2023 and invited to make any submissions as to its validity or to confirm their intention not to do so. On 4 May 2023, the applicant’s representative confirmed the applicant would not be making submissions with respect to the certificates.
The Tribunal is satisfied that the signed certificate states a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. Accordingly, the Tribunal considers the certificate valid. As such, the information to which it is subject cannot be disclosed in any detail.
Broadly, as discussed at hearing, the information covered by the certificate relates to internal Departmental communication about the applicant’s identity. The Tribunal notes this information has already been disclosed to the applicant, and in his response to the Department’s notice advising that his visa may be cancelled, the applicant acknowledged the information was correct. As such, the Tribunal did not consider there was any information covered by the certificate which had not otherwise been put to the applicant for comment or response.
CONSIDERATION
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.

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 and 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.
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?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act. The details of the notice were outlined above.
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.
In written submissions to the Tribunal, the applicant’s representative acknowledged that the applicant had provided incorrect information in his Protection visa application and that there was non-compliance in the way described in the notice issued under s 107 of the Act.
In his oral evidence to the Tribunal, the applicant confirmed that he had provided incorrect answers to questions in his Protection visa application and that he did not comply with the requirements of s 101 of the Act. This was supported by the evidence of his brothers.
On the basis of the evidence before it, the Tribunal finds that there was non-compliance by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth). 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.
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 Procedures 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.
In submissions, the applicant claimed he had provided the incorrect information because he believed his earlier visa history would prevent him being granted the visa and he was desperate to find a safe place to live for him and his family. He acknowledges he has provided incorrect information and documentation in a number of applications to the Department but submits that in the best interests of his children in Pakistan and the risks he would face if he were returned to Afghanistan or were detained indefinitely in Australia due to his inability to be returned to Afghanistan mean that the visa should not be cancelled.
The correct information
The applicant provided incorrect answers to questions 1, 3 and 12 of Part B of Form 866 (relating to his name, visa history and relatives in Australia) and questions 1, 4, 8 and 31 of Part C of Form 866 (relating to his name, aliases, date of birth and age and travel/identification documentation).
The Tribunal considers the following to be the correct information.
The applicant’s name is [Alias 1]. He was born in Malistan, Ghazni Province, Afghanistan and while the applicant did not have any record of the day on which he was born, the Tribunal accepts he was born on or around [Date 1].
The applicant migrated to Pakistan in 2004 with his mother and three brothers.
His father [died] in 2017 in Quetta, Pakistan. His mother died in 2005 in Quetta, Pakistan.
He is one of seven children. He has five brothers and a sister: [Mr F], [Mr C], [Mr G], [Mr H], [Alias 1] (the applicant), [Mr D] and [Ms I] (his sister). One brother ([Mr H]) and a sister ([Ms I]) live in [Afghanistan]. His oldest brother’s family lives in Quetta, Pakistan. His brother ([Mr F]) is in [Country 1]. He has lost contact with [Mr G] but he was last known to be in Afghanistan.
The applicant has two brothers residing in Australia, namely [Mr C], born in [year], and [Mr D], born on [date]. [Mr C] came to Australia in 2000. He has a wife and four children in Australia. [Mr D] came to Australia in 2009 on an Orphan Relative visa sponsored by [Mr C]. He has a wife and three children in Australia.
The applicant has a wife and two children in Pakistan. He married his wife, [Ms A], in April 2008 in Quetta, Pakistan under the name of [Alias 1]. He was issued a marriage certificate in that name. He subsequently obtained a second marriage certificate under the name of [applicant’s name] in Afghanistan.
He has two children from his marriage to [Ms A]: [names and birthdates specified].
The applicant is the same person who applied as a secondary dependent applicant in the Partner visa application of [Ms B], being the wife of [Mr C], and subsequent Orphan Relative visa application sponsored by [Mr C]. Both applications were made in the name of [Alias 1] and were refused.
The content of the genuine document (if any)
The Tribunal notes that the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents).
The s 107 notice detailed that multiple Afghan Taskeras had been provided to the Department in different identities under these two names. The s 107 notice stated that, in a statutory declaration provided as part of the citizenship application, the applicant declared that he lost his legitimate Taskera and instead of travelling to Afghanistan, obtained a Taskera ([Taskera 1]) in Pakistan through “some arrangement with local people". The delegate considered this document to be a bogus document. The applicant further declared he had obtained another Taskera with correct information ([Taskera 2]) issued on [date] June 2017 in Afghanistan. The NOICC noted that Departmental movement records indicated the applicant was in Australia at the time that document was issued, raising concerns regarding its validity. As the applicant has testified that he is [Alias 1] and does not have any valid identity documentation, the Tribunal finds that document is also not genuine.
The applicant testified before the Tribunal that he has no genuine documents relating to his identity. He stated that his initial Taskera, [Taskera 3] in the name of [Alias 1], was obtained for him by his brother [Mr D] when he travelled back to their home district of Malistan, Ghazni Province, Afghanistan. He was latter informed by [Mr D] that when he travelled back to Malistan in about 2014 to obtain Taskeras for his wife and children, he was told by the same officials who had issued his and his brother’s Taskeras in 2006 that his brother’s Taskera (and he presumed his own) had not been registered and was therefore void. The Tribunal finds that Taskera is not a genuine document.
The applicant testified, in relation to his Declaration made on 16 November 2017 in support of his sponsorship of his wife's application for a Partner visa, that [Taskera 1] which is dated in 2011 was obtained in Pakistan on his behalf whilst he was in detention on Christmas Island and was ‘backdated to prior to my departure’. Accordingly, the Tribunal finds that document is not genuine.
The applicant testified that [Taskera 2] was obtained in 2017 by his uncle (his mother's brother) who lives in Kabul. He stated that he believed that it was officially issued but ‘the information contained in it is based on my false information as to my name and date of birth’. Accordingly, the Tribunal finds that document is not genuine.
[Mr C] testified that he obtained a passport for the applicant in 2005 in the name of [Alias 1] from the Afghan Consulate in Pakistan. He said he did that without a Taskera or any other documents for the applicant. The Tribunal has serious concerns about the genuineness of any passport obtained without identity documentation.
The applicant also testified that he obtained two marriage certificates following his marriage in 2008, one in the name of [Alias 1] in Pakistan and one in the name of [applicant’s name] in Afghanistan. As the applicant was not married in Afghanistan and is not [applicant’s name], the Tribunal finds that marriage certificate is not genuine.
The Tribunal finds the applicant does not hold any genuine identity documents. As the applicant has provided a series of non-genuine documents in support of this and other visas, the Tribunal gives this factor significant weight in favour of the visa being cancelled.
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 Tribunal has found the applicant was granted a visa in a different name, age and with a different account of his family composition and history.
The applicant submitted that his claims for protection as a Shia Hazara from Malistan, Afghanistan were the basis for the grant of the visa and that had he provided the correct information he could have been granted the visa.
There were aspects of his claimed history which are impacted by the account he now accepts to be his true background and family composition, including with respect to the village where he was born, having fled Afghanistan in 1987 and to having claimed return visits to Afghanistan, including being kidnapped and robbed on a return visit.
However, the Tribunal accepts the applicant is a Shia Hazara from Afghanistan. This was a claim consistent with those accepted for his brother and the s 107 notice did not raise any issue with this aspect of his claimed identity.
The Tribunal is of the view that the Protection visa was granted on the basis of the information provided by the applicant to the Department, including with respect to the applicant’s identity and personal history and that the information was central to the grant of the visa.
While the Tribunal finds that the decision to grant the visa was based on incorrect information, it places only slight weight on this factor in favour of cancelling the visa as country information supports the applicant’s claims that he would likely have met the criteria for the grant of the visa as a Shia Hazara from Afghanistan if the correct information had been provided.[5]
The circumstances in which the non-compliance occurred
[5] DFAT Thematic report on political and security developments in Afghanistan (August 2021 to January 2022), 14 January 2022 at [3.2]-[3.5]
In his evidence to the Tribunal, the applicant claimed that his mother died in Quetta in 2005 and [Mr D] and the applicant were then looked after by [Mr C]'s wife until she obtained her visa and migrated to Australia. [Mr D] was eventually granted an Orphan Relative visa and migrated to Australia.
After the applicant’s Orphan Relative visa application was refused, he trained and worked as a [Occupation 1]. He married in April 2008 in Quetta, Pakistan. The applicant and his wife have two [children]. He married in Pakistan under the name of [Alias 1] but later obtained a second marriage certificate from Afghanistan under the name of [applicant’s name].
He claimed that conditions in Quetta continued to get more and more dangerous for Hazaras who could not safely leave the two main Hazara areas in Quetta. He did not believe he or his family had a future in Quetta and therefore determined that he would attempt to join his brothers in Australia. He borrowed money from his brothers in Australia and contacted a smuggler to arrange for him to travel to Indonesia and then by boat to Australia.
The applicant claimed that because his previous visa applications had failed and because he had two brothers who had been forced to return to Afghanistan, he decided he had to create a new identity. He kept his father's name, [but] otherwise took a new name for himself, [applicant’s name], and created new family members. He also changed the name of the village where he was born and lived and his date of birth and created a new history. He said he thought he would be rejected if he used his name, [Alias 1], because he had been rejected before.
This explanation was somewhat at odds with the explanation provided in response to the NOICC, where it was submitted that his change of name arose initially because he was concerned with being targeted by enemies of his family in Afghanistan and he started using the name [applicant’s name] ‘whilst in Pakistan and well in advance of any decision to come to Australia.’ It was submitted that ‘he was already using the name [applicant’s name] at the time of his marriage in 2008’. This earlier account reflects poorly on the applicant’s credibility.
However, the Tribunal accepts the incorrect information occurred in the context of the applicant’s experience of being displaced from Afghanistan with his family to live as refugees in Pakistan and his concern for the safety of his family members in Pakistan. Country information shows that at the time, Hazara Shia were targeted by armed Sunni militants in Pakistan under successive Pakistani governments,[6] and there was a high level of generalised violence in Balochistan, and that Hazaras are targeted by sectarian militants due to their distinct ethnicity.[7]
[6] “We are the Walking Dead”: Killings of Shia Hazara in Balochistan, Pakistan | HRW, Blast in Pakistani city of Quetta kills at least 28 | Reuters
[7] DFAT Thematic Report – Hazaras in Afghanistan and Pakistan (immi.gov.au)
Accordingly, while the Tribunal considers this factor weighs in favour of cancelling the visa, it gives this factor only moderate weight in the applicant’s circumstances.
The present circumstances of the visa holder
The applicant has been living in Perth since arriving in 2012 and has strong links to the community through his family, work and the Hazara community. Initially he lived with his brothers but he now owns a home and a business as a [Occupation 1]. He has been operating the business since about 2017.
His wife and children remain in Pakistan. He has returned four times, the last time in 2018. He is financially supporting his family in Pakistan. He has sought to sponsor his wife for a Partner visa but accepts that visa would now be refused and that he may need to withdraw that application and restart the process based on the correct information and documentation if his visa is not cancelled.
His two brothers and their families live close by in Perth. He has seven Australian citizen nieces and nephews. [Mr C] works with him in the [business], as for health reasons he can no longer undertake his previous [work]. [Mr D] also has his own [business] at different premises. He and his brothers also assist in supporting their family members in Afghanistan and Pakistan.
The Tribunal accepts that the applicant would like to continue to reside in Australia and would like to bring his family here. The Tribunal notes the applicant clams his wife is also an Afghani Hazara and is at ongoing risk in Pakistan. While the applicant’s return trips to Pakistan indicate he may be able to join his family in Pakistan, the Tribunal accepts that, in the event of cancellation, there would be some uncertainty with this given his lack of travel documentation. As noted below, if the visa is cancelled, his options for further applications will be limited.
In these circumstances, the Tribunal is of the view that the cancellation of the applicant’s visa would cause him and his family significant hardship resulting from his removal.
Having regard to the above considerations, the Tribunal gives this factor significant weight against the visa 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
Subdivision C of Division 3 of Part 2 of the Act contains obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
As noted above, the applicant has acknowledged that he has provided incorrect information to the Department in relation to his application for a Protection visa. As discussed with the applicant at the hearing, the applicant had since 2012 to take steps to correct the information, however, he failed to do so until his response to the NOICC.
The applicant accepted this and said ‘he could only apologise for it’.
The applicant has repeatedly provided incorrect information over many years and for several visa applications, including his Protection visa application and Partner visa application.
Subsequent to the incorrect information provided in his application for the Protection visa, the applicant lodged an application for citizenship. It is reported by the Department that he also provided incorrect information in his citizenship application, however, this does not fall within this consideration, and is considered further below.
The Tribunal considers that the applicant’s subsequent behaviour concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act weighs heavily in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There are numerous instances of non-compliance with the requirement not to give incorrect information, as the same incorrect information has been repeated in each visa application and in the application for Australian citizenship.
The applicant has given false information including non-genuine identity and other documents to the Department in support of his application for protection, the Partner visa application and his application for Australian citizenship.
The applicant has been non-compliant in all his visa applications, and this weighs heavily in favour of cancelling his visa.
The time that has elapsed since the non-compliance
The relevant non-compliance in the present case took place when the applicant provided incorrect information in connection with his Protection visa application, which was lodged on 16 July 2012. Almost 11 years have passed since the non-compliance, which the Tribunal acknowledges is a lengthy period.

100. The Tribunal gives this factor some weight against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches

101. The delegate refers to the applicant’s application for Australian citizenship which contains the same incorrect information on 5 January 2017. The applicant gave evidence before the Tribunal that he also submitted non-genuine identity documents in support of that application. This is a breach of s 50 of the Australian Citizenship Act 2007 (Cth).
102. The Tribunal considers this to be a serious breach in the migration and citizenship context and considers that it weighs in favour of cancelling the applicant’s visa.
Any contribution made by the visa holder to the community
103. Evidence provided by the applicant suggests that he owns a [business] and has been training his brother as a [Occupation 1].
104. Mr [E], the [representative of a Hazara community organisation], stated that the applicant is an active community member and centre member and an active participant in various cultural, community and religious activities of the centre. He states that the applicant has supported the Centre both physically and financially.
105. The Tribunal considers the applicant’s contributions to the community weigh slightly in favour of not cancelling his visa.
Other considerations
106. In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[8] set out a number of matters that, under policy, should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109, including:
[8] PAM 3 – Migration Act - Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16)
Whether there are persons in Australia whose visas would, or may, be cancelled under s 140

Under s 140 of the Act, if a person’s visa is cancelled under s 109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.

108. There are no consequential cancellations that would occur if the applicant’s visa is cancelled.
International obligations
109. It is government policy that when considering whether to cancel a visa any relevant obligations arising under international treaties must be taken into account. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[9] Other than the UN Convention on the Rights of the Child (CRC), non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).[10]
[9] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140)
[10] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16)
Best interests of children
110. As a signatory to the CRC, Australia has certain obligations, including the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16). The CRC also includes integrated but wider considerations including education[11] and health and disability considerations[12] for children within the jurisdiction of the State party. Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[13]
[11] Article 28
[12] Articles 23 and 24
[13] Article 22
111. When assessing the best interests of a child, the Department’s Policy Guidelines set out the factors to be considered when exercising a discretionary power, including the child’s age and the degree of their integration into the Australian community as well as the child’s ability to resettle and integrate in the country of citizenship[14].
[14] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at A122

The Department’s PAM3 policy provides that the ‘obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement’ (Visa cancellation instructions, General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)). As a signatory to the CRC, Australia has certain obligations, which are referred to in the Department’s policy. These obligations include the best interests of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).

113. The Department's Policy is that the obligation only applies 'to children who are within Australia’s territory or jurisdiction'.[15] The CRC does not use the word ‘territory’ but rather states that a signatory shall ensure the rights set out in the Convention for each child in its jurisdiction.[16] The Tribunal considers that the reference to ‘jurisdiction’ rather than ‘territory’ suggests that the obligation is not restricted to children who are in Australia’s territory. Rather, the expansive language of the Convention and its references to international co-operation suggest that the Convention’s application to children within Australia’s jurisdiction can include children outside of Australia’s territory that would be affected by decisions made by the Tribunal.
[15] Policy – Migration Act – Visa Cancellation instructions – General visa cancellation powers (s109, s116, s128, 134B & s140) – Best interest of children (reissued 01/07/2017)
[16] Article 2 of the United Nations Convention on the Rights of the Child 1989
114. The Tribunal accepts that the applicant has two children who are dependant applicants on the Partner visa application he submitted for his wife. They currently reside in Quetta, Pakistan. The Tribunal finds it is in their best interests that the visa not be cancelled as the alternative for reunification would appear to be for them to travel to Afghanistan, which they would not be able to do safely. Even if the applicant were able to leave Australia voluntarily and return to Afghanistan, the applicant does not hold a valid travel document and it will likely be difficult for him to enter Pakistan to see his family. The alternative would be for his family to travel to Afghanistan which, for the reasons outlined in the decision, the Tribunal accepts they cannot so without significant risk of harm. This may cause a further separation. If the applicant remains in Australia in detention, he will be unable to see his family for an indefinite period. Further, the Tribunal accepts, based on credible country information, that the situation for Hazaras in Pakistan is difficult and that they face societal and official discrimination and generalised violence.[17] The Tribunal considers the best interests of these children is that the visa not be cancelled.
[17] DFAT Country Information Report: Pakistan, 25 January 2022
115. There are also minor children in Australia who will be affected if the applicant’s visa is cancelled. He has close family in Perth including nieces and nephews who he sees weekly to fortnightly. The Tribunal considers that it is in the best interests of these children that he remains in Australia.
116. The Tribunal considers the best interests of the children impacted by the decision weighs strongly in favour of not cancelling the visa.
Australia’s non-refoulement obligations
117. It was submitted that Australia would be in breach of its non-refoulement obligations if the applicant’s visa remained cancelled and he was returned to Afghanistan.
118. The Tribunal notes the delegate did not suggest that the applicant is not an Afghan citizen or a Hazara. His siblings have been accepted to be Afghani Hazaras and granted permanent visas on that basis.

If the applicant’s visa remains cancelled and he is an unlawful non-citizen, he is liable to detention under s 189 of the Act. He is then liable to be removed under s 198, however, for the purposes of s 198, as a protection finding has been made for him, the Act does not require or authorise his removal (s 197C(3)).

120. The decision to grant the applicant a Protection visa has not been quashed or set aside, nor has the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).
121. Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s Protection visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.
122. In such a scenario, cancellation may lead to prolonged detention for these reasons. As the Tribunal does not consider that Australia’s non-refoulment obligations would be breached as a result of the cancellation, the Tribunal considers this factor weighs neutrally in the applicant’s circumstances.
Mandatory legal consequences
123. The policy provides that the Tribunal should have regard to 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.
124. If the visa is cancelled and the applicant exhausts his appeal rights, his bridging visa will cease, and he will become an unlawful non-citizen.[18] However, as a protection finding has been made for him he would not be liable for removal but would be detained.
[18] ss 82(10), 82(7A), cls 010.511, 020.511, 030.511.
125. As the applicant arrived by sea at an excised offshore, place (Christmas Island) after that place was excised (in the case of Christmas Island 2001) the applicant is an unauthorised maritime arrival (s 5AA) for the purposes of s 46A of the Act. Under s 46A of the Act if his visa is cancelled, he cannot make a visa application except with the authorisation of the Minister. This includes a further bridging visa.

This means he will face detention until a decision is made under s 197D that a protection finding would no longer be made, or the Minister personally decides to grant him a visa under s 195A, or the Minister decides under s 48A it is in the public interest for him to be able to apply for a further protection visa, or he acquires a right to enter and reside in another country.

127. Under s 195A, the Minister may grant the applicant a visa (whether or not on application). Additionally, the Minister has discretion under s 197AB to move a non-citizen into ‘community detention’ where it is the public interest to do so. As the Minister’s powers are non-compellable and discretionary, all these possibilities are speculative and any that do eventuate could take considerable time meaning the applicant faces the prospect of prolonged detention according to s 196.[19]
[19] Commonwealth v AJL20 [2021] HCA 21
128. It was submitted that the introduction of the new Status Resolution visa announced in February 2023 added weight to the applicant’s contention that the Tribunal should not rely on ‘the uncertainties of a non-compellable Ministerial Intervention’. The applicant contended that he would not be eligible for this new visa based on the following eligibility advice on the Department (quoted in submissions):
Not have previously had your most recent TPV or SHEV refused or cancelled
People found not to engage protection obligations and, whose application has been finally determined by any merits and judicial review processes, are expected to depart Australia and may be provided assistance to depart.
If you have new, credible protection claims relating to changes in your country of origin or personal circumstances, you may request Ministerial Intervention.
The Minister will not consider protection claims that have already been considered in a Protection visa application or by the Tribunal. Requests will only be considered where a person is making genuine and compelling claims that require consideration when these claims could not be raised in their initial protection visa application. If the Minister does not intervene in your case, the Minister expects you to leave Australia when your current visa expires.

129. It was submitted on this basis that if the Delegate’s decision is affirmed on review, the applicant will not be eligible for this new visa and, subject to Ministerial Intervention, he will be required to leave Australia and return to Afghanistan, with the implication that if he fails to leave Australia, he may be subject to indefinite detention pending removal to Afghanistan.
130. The Tribunal accepts the applicant would require Ministerial Intervention to apply for a Resolution of Status visa, as he would for any other visa because of the operation of s 46A. The eligibility information for the Department expressly contemplates this by including a notification of a s 46A application bar lift in the application form for the visa.   However, the Tribunal does not accept that based on the quoted information from the Department the applicant would be ineligible for a Resolution of Status visa as he has not had his most recent TPV or SHEV refused or cancelled. The Tribunal also notes it is not clear that the applicant would meet other criteria for that visa as he was never the holder of a TPV or SHEV visa but held a permanent protection visa (subclass 866).[20]
[20] The balance of the commentary relates to persons who have been found not to engage Australia’s protection obligations. Again, this does not apply to the applicant who has been found to be owed protection and is not liable for removal.
132. However, as noted above the Tribunal does accept the Minister’s powers to lift the bar for the applicant to make an application or to be otherwise granted a visa are non-compellable and discretionary and has weighed this accordingly in considering the mandatory legal consequences of cancelling the applicant’s visa
133. Cancellation of the applicant’s visa would also impact his ability to sponsor his family to come to Australia from Pakistan until he is granted a further visa and meets eligibility requirements to sponsor his wife and children for a visa. As noted in the applicant’s evidence, his Partner visa application for his wife and children may be withdrawn in any event as he has conceded he provided no genuine documents and incorrect information in support of the application. If it is not withdrawn it would likely be refused on that basis or because eligibility requirements are not met if the applicant is no longer the holder of a permanent visa. Either way, cancellation is likely to cause significant delays in any reunification of the family.
134. Given the significant legal consequences of cancellation and the impact on the applicant and his family, the Tribunal gives this factor significant weight against cancelling the visa.
Conclusions
135. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant provided incorrect information in his application for a Protection visa and is satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act.
136. The Tribunal has found that there are strong considerations in favour of cancelling the applicant’s visa. The Tribunal gives significant weight to the fact that the applicant intentionally misled the Department on a number of matters at the visa application stage, including with respect to his identity and personal history, which were considerations in the decision to grant him a Protection visa. The Tribunal also places weight on the fact that the applicant has consistently provided incorrect information and non-genuine documentation in a number of visa processes and in an application for citizenship.
137. However, the Tribunal finds there are strong countervailing considerations weighing against the cancellation of the applicant’s visa and considers that these outweigh those weighing in favour of cancellation. The best interests of the applicant’s children in Pakistan are a primary consideration. Accepting the applicant is most likely an Afghan Hazara and that his wife and children are also Hazaras, the Tribunal accepts that it is in their best interest that the visa not be cancelled. The cancellation of the visa would extend the ongoing separation of the applicant from his children and would mean his family would remain in Pakistan without his care and protection. The best opportunity for the family to be reunited is for the visa not to be cancelled and for the applicant to pursue options for a Partner visa application on the correct information. Therefore, the best interests of the children require the visa not to be cancelled. In addition, if the applicant’s visa were to be cancelled, he will be liable to be detained for a prolonged or indefinite period as a protection finding has been made with respect to him and he is not liable for removal. This would significantly impact the applicant and his family members in Pakistan and Australia.
138. Accordingly, having regard to all the relevant circumstances, the Tribunal considers that the visa should not be cancelled.
DECISION
139. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
Simone Burford
Senior 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.