2110729 (Refugee)

[2023] AATA 1474

2110729 (Refugee) [2023] AATA 1474 (30 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rabiah Mariam Khawaja (MARN: 1799908)

CASE NUMBER:  2110729

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Tamara Hamilton-Noy

DATE:30 March 2023

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 30 March 2023 at 12:53pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – incorrect information provided in visa application – name, citizenship and family member – Hazara Shia born and living in Pakistan claimed to be Afghani citizen – one brother not declared – discretion to cancel visa – incorrect information conceded – young age – parents from Afghanistan and applicant does not know how they obtained Pakistani citizenship – country information – historical and current attacks by extremist groups – real chance of serious harm – possibility of prolonged detention – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1)
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 Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached section 101 of the Act by providing incorrect answers about his country of citizenship in his visa application and failing to provide details of one of his brothers. 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 appeared before the Tribunal on 21 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.  The applicant was represented in relation to the review.

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 s 101(b) in that incorrect answers had been provided by the applicant in his written protection application lodged on 10 April 2012.  These included the applicant identifying his name as [applicant name – with one additional name]; that his citizenship at birth is Afghani and his current citizenship is Afghani and he fears returning to Afghanistan; that he does not hold any other citizenship; and that his family composition included his parents, [number] sisters and [number] brothers but did not include another brother who had subsequently moved to Australia.

9. The applicant’s representative has provided submissions to the Tribunal stating that the applicant acknowledges that incorrect information was provided to the Department.  The applicant’s statutory declaration, also provided to the Tribunal, states that he was [Age] years of age when interviewed by the Department and did not know about citizenship, that he had a lack of knowledge about the protection application process, and that his parents are from Afghanistan and he did not know how they obtained Pakistani citizenship.  The applicant claimed that the interpreter had asked him why he had needed such a long name in the interview and he removed [the additional applicant name], and that he forgot to include his brother on his application because they have a big family.

10. The Tribunal had before it certificated information and was of the view that the certificate is valid.  The Tribunal finds that the certificated information relates to the applicant’s correct citizenship and is summarised in the delegate’s decision.  As the applicant agrees he provided incorrect information to the Department about being an Afghan citizen, the information was not discussed directly with the applicant at hearing.

11. Based on the information provided by the applicant and his representative to the Tribunal, 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?

12. 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).

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

    ·     the correct information

    ·     the content of the genuine document (if any)

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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

14. The correct information: The Tribunal finds that the correct information is that the applicant is a Hazara Shia who was born and lived in Quetta, Pakistan.  The Tribunal finds that the applicant is a Pakistani citizen.  The Tribunal finds that, in addition to the applicant’s family members declared in the protection application, he has another brother whose details he did not provide to the Department. 

15. The content of the genuine document (if any): The Tribunal finds that this is not relevant in this case as there are no allegations that the applicant has provided a bogus document.

16. 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 accepts that the applicant’s claims in the protection application related to his fear of returning to Afghanistan and that he was granted protection on this basis.  The protection visa decision notes that the applicant claimed to have been born in Quetta, Pakistan, to have lived in Pakistan until his departure for Australia in 2011, and to have been an Afghan citizen of Hazara ethnicity and a practicing Shia Muslim.  The applicant had claimed to have feared returning to Afghanistan but also to Pakistan as the situation there was also very frightening.  The applicant was found to be owed protection because of his membership of the particular social group of ‘minors in Afghanistan without parents’.   The Tribunal finds that the decision to grant the applicant a protection visa was based on incorrect information that he was a citizen of Afghanistan and could not return to Afghanistan or another third country. 

17. The circumstances in which the non-compliance occurred: The Tribunal noted that the applicant had initially claimed, in his entry interview with the Department, that he was a citizen of Pakistan.  The Tribunal also noted that, in the protection application lodged in 2012, while claiming to be a citizen of Afghanistan, the applicant also outlined in his statement that he had been born in Quetta, Pakistan, and that he had lived in Quetta from birth until he left Pakistan for Australia.  The applicant did not claim to have spent any time in Afghanistan.  

18. The present circumstances of the visa holder: The applicant told the Tribunal at hearing that he had completed a Certificate III in [Subject] and English language studies since arriving in Australia and that he has worked in [Work sector and workplaces] in Australia.  The applicant told the Tribunal that he is currently living with a friend and that, since his visa was cancelled and he has been unable to work, he has been isolating himself at home and dealing with depression and anxiety.  He stated that his brother is covering his rental payments and he is borrowing money from friends for food and other living expenses. 

19. The applicant told the Tribunal that he has suffered depression and anxiety for some two years since his visa was cancelled and he is currently prescribed Loxalate through his GP which he is taking daily.  The applicant gave evidence that he had seen a psychiatrist once and a psychologist once but was not attending counselling at present.  The applicant provided to the Tribunal medical documents confirming he had been referred to a psychiatrist in mid-2021 for symptoms of anxiety and depression, that he had been prescribed Lexapro and had also received a prescription for Escitalopram. 

20. The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant has provided information to the Department and to the Tribunal conceding that he provided incorrect information to the Department in the protection application.  He has provided correct information about his citizenship and family composition.  The Tribunal does accept, though, the delegate’s findings that the applicant maintained in his citizenship application in 2020 that he was a citizen of Afghanistan. 

21. Any other instances of non-compliance by the visa holder known to the Minister: The delegate accepted, and the Tribunal similarly accepts, that there are no other instances of non-compliance by the applicant.

22. The time that has elapsed since the non-compliance: The incorrect information was provided to the Department in April 2012, some 11 years ago.  The Tribunal accepts that the applicant has been living and working in Australia for the past 11 years. 

23. Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate accepted, and the Tribunal similarly accepts, that the applicant has not committed breaches of criminal law, migration law or other administrative law. 

24. Any contributions made by the older to the community: The applicant gave evidence to the Tribunal that he has previously paid taxes while holding employment in Australia.  He stated to the Tribunal that he has participated in some minimal activities with the Hazara community since arriving in Australia. The Tribunal accepted this evidence as correct.

    Other factors to be considered

25. While the above 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 cover such matters as:

    ·   Whether there would be consequential cancellations under s 140;

    ·   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children;

    ·   Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations; and

    ·   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

26. The Tribunal accepted from the evidence given by the applicant at hearing that there would not be consequential cancellations under s 140 and that there are no children whose interests would be affected by cancellation.

27. The applicant’s representative submits that Australia’s international protection obligations are engaged for individuals with the applicant’s profile and that the applicant faces a real chance of serious harm across Pakistan for reasons of his race and religion, in light of historical and current attacks in Quetta by extremist groups.  In support of these submissions, the applicant’s representative referred to the following relevant country information (in summary):

    ·DFAT states that anti-Shia sectarian groups operate in Pakistan, including Lashkar-e-Jhangvi which has carried out targeted attacks against Hazaras and other religious minorities.  LeJ is aligned with Al Qaeda and is active in Punjab, the former FATA, Karachi and Balochistan.[1]

    [1] DFAT Country Information Report Pakistan, 25 January 2022, 2.41.

    ·Hazaras in Pakistan have a distinctive East Asian appearance and have an estimated population within Pakistan of 600,000 to 1 million.  Most are Shia Muslims and live in enclaves in Quetta due to the security situation in Balochistan, with smaller populations also living in Karachi, Lahore and Islamabad.  Those who live outside Quetta tend not to live in enclaves to reduce the risk of ethnic profiling, discrimination and attack.[2] 

    [2] DFAT Country Information Report Pakistan, 25 January 2022, 3.3, 3.4.

    ·Militant groups including LeJ and IS consider Hazaras infidels.  In 2019 the NCHR stated that at least 2,000 Hazaras had been killed by militants since 1999 and that no one had been held accountable for the attacks.  Attacks included a bombing in April 2019 and targeting of Hazara miners in 2021, and previous targeted attacks had occurred in Karachi, Peshawar and elsewhere.[3] 

    [3] DFAT Country Information Report Pakistan, 25 January 2022, 3.5.

    ·Hazaras in Quetta live in two enclaves, in Hazara Town and Mari Abad.  The government provides security to these communities and for Hazara religious processions.  Medical, education and other services in the enclaves is basic, and food and other essentials are required to be brought in from outside.  Those attending Quetta hospitals outside the enclaves have been attacked, as have those participating in religious processions, places of worship and pilgrimages outside the enclaves.[4]

    [4] DFAT Country Information Report Pakistan, 25 January 2022, 3.6, 3.7.

    ·Schools exist within the enclaves but there is little opportunity for higher education.  Many Hazaras in Quetta provide services to their own communities in the enclaves, while others move to other cities across Pakistan to work.  The ability to relocate depends strongly on personal resources and family connections.  High rates of unemployment and limited prospects have led to a sense of hopelessness among Hazara youth in Quetta.[5]

    ·DFAT assesses that Hazaras who live in enclaves in Quetta face a moderate risk of societal discrimination.  Within and outside the enclaves, Hazaras face a moderate risk of official discrimination including by government officials and security forces, in the form of obstruction at checkpoints and denial of or delay of identification documents, employment and services.  Hazaras in Balochistan are assessed by DFAT to face a high risk of violence from militants on the basis of their ethnic and sectarian identity.  Outside Balochistan, the risk for Hazaras is moderate, although they face a higher risk of violence than other Shia Muslims due to their distinctive appearance and segregation.  While they face a low risk of discrimination outside of Balochistan, relocation to these areas is difficult or impossible for many.[6]

    ·In April 2019, the Human Rights Commission of Pakistan condemned an attack that had occurred in Quetta which killed at least 20 and injured 48 others and which was targeted at the city’s Shia Hazara community.  The HRCP noted that the attack had occurred at a vegetable market that was frequented by Hazaras and that there had been over 500 Hazaras killed in the preceding five years.[7]

    ·In July 2022 the UK Home Office stated that the Hazara community in Quetta had been subjected to heightened restrictions on movement during the COVID-19 pandemic and had been blamed for bringing the virus into Pakistan after returning from a pilgrimage in Iran.  Access to doctors was restricted and some doctors refused to treat Hazaras.  Hazaras faced online harassment and hate speech during the pandemic.[8]

    ·Pakistan’s National Commission for Human Rights has estimated at least 2,000 Hazaras have been killed in terrorist-related incidents between 1999 and 2017.  The South Asia Terrorism Portal has recorded 383 deaths between 2006 and 2021.  Attacks were reported to have been committed against Hazaras in 2019 in Quetta and in Mach, east of Quetta, in 2021.[9]

    ·Hazara Town and Mari Abad were sealed off in 2020 in response to the COVID-19 pandemic and measures were taken against the Hazara community in Balochistan, including the banning of Hazaras from attending work.  There were reports that Hazaras were refused identification documents and passports, were harassed by security officials, and were required to travel through check posts to leave Hazara areas.[10]

    ·The UK Home Office in 2022 reported that armed sectarian groups including LeJ, TTP and SSP continued to stage attacks targeting Shia Muslims, including the Hazara community.  Members of the Hazara community had expressed that their persecution was not just sectarian, on the basis that other Shia groups were living peacefully in Balochistan.  One possible explanation was the perceived socio-economic prosperity of Hazaras, leading to the involvement of land mafia in their killing.[11]

    ·The Home and Tribal Affairs department of Balochistan states that terrorists infiltrating from Afghanistan are involved in Hazara killings.  There have been fewer incidents of Hazara killings since 2014 compared to previous years, given federal and provincial governments have taken measures to control sectarian issues.[12]

    ·The Hazara community in Quetta has been described as effectively ghettoized and unable to travel outside of their neighbourhoods.  Insecurity has affected other areas of life, including access to education and employment.  The situation for Hazaras has been described as precarious, with enormous difficulty faced by Hazaras in exercising their fundamental human rights such as the right to life, to freedom of movement, to higher education and to participation in the earning of daily living and access to necessities of life.  There are also limited social opportunities due to fear of violence. Due to the security situation, Hazaras attempt to hide their identity when travelling and dealing outside their communities.[13]

    ·The Hazara community has questioned measures taken by the provincial government for their protection, noting that agencies are often engaged in unnecessary searching and checking of Hazaras themselves at checkpoints.  Hazara contacts reported increased surveillance by authorities following August 2021.[14]

    [5][5] DFAT Country Information Report Pakistan, 25 January 2022, 3.8, 3.9.

    [6] DFAT Country Information Report Pakistan, 25 January 2022, 3.11, 3.12.

    [7] Human Rights Commission of Pakistan, ‘HCRP slams attack on Shia Hazara community’, 21 April 2019.

    [8] UK Home Office Country Policy and Information Note, Pakistan: Hazaras, July 2022, 2.4.5, 2.4.10.

    [9] UK Home Office Country Policy and Information Note, Pakistan: Hazaras, July 2022, 2.4.15 & 2.4.16.

    [10] UK Home Office Country Policy and Information Note, Pakistan: Hazaras, July 2022, 5.1.1 – 5.1.8.

    [11] UK Home Office Country Policy and Information Note, Pakistan: Hazaras, July 2022, 7.1.1 – 7.1.5.

    [12] UK Home Office Country Policy and Information Note, Pakistan: Hazaras, July 2022, 7.1.7.

    [13] UK Home Office Country Policy and Information Note, Pakistan: Hazaras, July 2022, 7.2.1 – 7.2.3.

    [14] UK Home Office Country Policy and Information Note, Pakistan: Hazaras, July 2022, 8.1.2 – 8.1.5.

1. The Tribunal accepts that the applicant would return to Quetta if his visa is cancelled, being the area where his family is residing and the only area in Pakistan to which he has any ties.  He would be effectively confined to two areas within Quetta, and faces attacks, violence and a threat to his life if he leaves these areas.  Within his local area, he faces limited employment and access to resources.   The Tribunal finds that requiring the applicant to return to Pakistan would breach Australia’s non-refoulment obligations and that the applicant would face a real chance of serious harm in Quetta.  The Tribunal finds that the state is unable to offer the applicant effective protection and that, given the risks to the applicant in travelling from this area to any other areas of Pakistan, the risk is not localised to the suburb his family resides in Quetta.

2. The Tribunal accepts that, if the applicant’s visa is cancelled, he is subject to ss 46A and 48A which prevent him from lodging an application for another visa unless the Minister lifts the bar for such an application.  The Tribunal accepts that if the applicant’s visa is cancelled, he would be subject to prolonged immigration detention if he does not voluntarily depart Australia. 

3. In weighing up all of the above matters, the Tribunal has placed particular weight on the young age of the applicant when he arrived in Australia; that while representing himself as a citizen of Afghanistan he provided correct information to the Department about having been born in Pakistan, having lived in Pakistan the entire time before travelling to Australia, and not having lived at all in Afghanistan; and the risk to him if he is returned to Pakistan as a Hazara Shia.  The Tribunal finds that the applicant may face prolonged immigration detention if his visa is cancelled and if he does not depart Australia voluntarily.  The Tribunal finds that, while there was noncompliance by the applicant in the way described in the s 107 notice, given the matters set out above that the Tribunal has placed particular weight on, the applicant’s visa should not be cancelled. 

   DECISION

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

   Tamara Hamilton-Noy
   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.

   105Particulars of incorrect answers to be given

   (1)If a non‑citizen becomes aware that:

   (a)     an answer given or provided in his or her application form; or

   (b)     an answer given in his or her passenger card; or

   (c)      information given by him or her under section 104 about the form or card; or

   (d)     a response given by him or her under section 107;

   was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

   (2)Subsection (1) applies despite the grant of any visa.

   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.