An (Migration) - [2024] AATA 3866

An (Migration) [2024] AATA 3866 (6 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tianhu An
REPRESENTATIVE:  Mr Mark Northam
CASE NUMBER:  2213775
HOME AFFAIRS REFERENCE(S):          BCC2022/2125395
MEMBER:Deputy President Justin Owen
DATE:6 September 2024
PLACE OF DECISION:  Sydney
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 06 September 2024 at 3:23pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in previous visa applications – period of unlawful residence – identity details – agency of a secondary applicant as a minor – Australian citizen family – best interests of the children – decision under review set aside
LEGISLATION
Corporations Act 2001 ss 128, 129
Migration Act 1958, ss 5(1), 48, 101-105, 107-109, 140, 189, 198
Migration Regulations 1994, r 2.41
CASES
Dalla v MIBP [2016] FCA 998
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 on the basis that the applicant was non-compliant with s 101(b) of the Act, which requires that no incorrect answers are given or provided in an application. Relevantly, s 107A states that failure to comply with s 101 in connection with a previous visa application may be grounds for cancellation of a current visa. In the case of the applicant, the non-compliance principally related to incorrect information provided in a Partner (Provisional) (Subclass 309) visa application of 11 February 2008, where he was the secondary applicant to his mother. The visa was granted to his mother, and the applicant and his mother arrived in Australia on 7 December 2008. Both were granted permanent stage Partner (Subclass 100) visas on 6 December 2010.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 20 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Ms Liyuan Ma. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
The Tribunal notes that there was a s 375A certificate on the departmental file restricting the Tribunal from disclosing certain information on the basis that disclosure of the material would be contrary to the public interest because the information was provided in confidence, the provider of the information had not provided consent to the disclosure of the information, and it may disclose lawful methods for preventing, detecting and investigating breaches of the law which would, or would be likely to, prejudice the effectiveness of those methods.
The Tribunal considered the certificate to be valid. At the conclusion of the Tribunal’s hearing the applicant was provided a copy of the certificate. The Tribunal also provided the gist of the information purportedly covered by the certificate to the applicant. The applicant, through his representative at the hearing, made no objection to the validity of the certificate.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, 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) in the following respects.
Particulars
On 29 June 2022, the Minister’s delegate invited the applicant to comment on the delegate’s intention to consider cancellation of his Subclass 155 (Five Year Resident Return) visa. The applicant had been granted the visa on 17 May 2020.
A response on behalf of the applicant was received. On 13 September 2022 the Minister’s delegate, having taken into account the applicant’s response, decided to exercise discretion under s 109 of the Act to cancel the applicant’s visa having decided that the applicant did not comply with s 101(b) of the Act. In that decision, the Minister’s delegate concluded the reasons for not cancelling the applicant’s visa did not outweigh the non-compliance.
Section 101 of the Act states: “A non-citizen must fill in or complete his or her application form in such a way that: … (b) no incorrect answers are given or provided.”
The Tribunal notes that the claimed non-compliance relates to a visa that the applicant has previously held. Section 107A of the Act states that possible non-compliances in connection with a previously held visa may be grounds for the cancellation of a visa holder’s current visa. In this case, the applicant’s claimed non-compliance relates to his previously held Partner (Provisional) (Subclass 309) visa where he was a secondary applicant to his mother. The applicant was granted a Partner (Provisional) (Subclass 309) visa on 6 November 2008.
Claimed non-compliance
The particulars of the information from the delegate’s decision record of 13 September 2022 are that in association with the applicant’s application (as the secondary applicant to his mother) for a Partner (Provisional) (Subclass 309) visa on 6 November 2008, the applicant provided incorrect information in the Form 47SP that did not comply with s 101(b) of the Act.
The incorrect information provided in the application was as follows, and appears in the delegate’s decision record:
Q6: Have you or any other person included in this application ever been refused an entry permit or visa to Australia? NO
This is incorrect is purportedly because on 31 January 2000 Mingshan Zheng (the applicant’s mother and the primary visa applicant for the Partner (Provisional) (subclass 309) visa applied for a [visa] under the name of Yun Nan Cheong (born 3 October 1949). This application was refused on 23 March 2000 and that decision affirmed [upon review] on 16 August 2000
This is furthermore incorrect because on 26 April 2005, the applicant applied for a Student visa. This application was refused on 10 June 2005 due to not meeting all relevant criteria.
Q9: Have you or a dependent family member previously been to Australia, held or currently hold a visa for travel to Australia? NO
This is incorrect is purportedly incorrect because Mingshan Zheng had previously been to Australia between 25 December 1999 and 30 October 2006
Q10: personal details of Ming Shan Zheng were provided
Q14: Other names you are or have been known by. N/A
This information is purportedly incorrect because Mingshan Zheng previously entered Australia in December 1999 using the name of Yun Nan Cheong (DOB 3 October 1949) and she applied for a NSW Driver’s Licence under the name Yun Nan Cheong. She departed Australia purporting to be known as Ming Ji Huang (DOB 28 March 1957)
Q39: personal details of RA and Tian Song An were provided
Q81: Have you even left any country to avoid being removed or deported? NO; Been excluded from or asked to leave any country? NO
This information is purportedly incorrect because Mingshan Zheng indicated in her statutory declaration that it was difficult for her to be living in Australia unlawfully. She stated she fell in love with Australia and knew she ‘had to make it right if she wanted to continue to be in Australia’ and that is the reason she departed Australia in 2006
This is also incorrect because when Mingshan Zheng departed Australia on 30 October 2006, she became subject to a three year exclusion period.
Q83: which countries have you lived for 12 months or more during the last 10 years? China from 1996 – 2008
This information is purportedly incorrect because Mingshan Zheng was residing in Australia between December 1999 and October 2006. In January 2012, NSW Department of Roads and Maritime Services provided information to the Department in respect of Ms Ming Shan Zheng’s facial image appearing as a match on their Facial Recognition System. RMS advised the following two customer identities were identified as potentially being the same person.
Incorrect information was also purportedly provided as part of the application for the permanent stage Partner (Subclass 100) visa on 21 April 2010. In this combined application, the primary visa applicant, Mingshan Zheng, maintained the same identity as described in the Subclass 309 visa.
The applicant disputed there was non-compliance in his written submissions to the Tribunal. Through his representative he stated:
The Department relies in a very narrow and strict interpretation of s99 of the Act that holds a person responsible for answers provided on visa application that was “provided on his or her behalf”. This is unrealistic and impractical for several reasons, the most obvious of which it doesn’t allow for circumstances were people’s information is listed on visa applications without their knowledge or consent, or as part of a fraud.
There are two visa applications that are the subject of the Department’s concerns:
• The subclass 309/100 partner visa application made by his mother and her sponsor on 11 February 2008, 16 years ago.
• The subclass 571 student visa applied for by the applicant’s mother on 26 April 2005, 19 years ago, naming Mr An (then a minor at age 17) as the applicant. Mr An reported he had no knowledge of this application until he was advised of it by the cancellations unit recently.
It is critical to note that these applications were prepared by Mr An’s mother without the participation or knowledge of Mr An. While Mr An answered in the affirmative when asked by his mother whether he wanted to go to Australia, the visa applications listed above that are the subject of this matter were prepared by Mr An’s mother (by some accounts, by a migration agent hired by his mother) without the participation or involvement of Mr An in any way.
Mr An advises he only became aware of the refused student visa application when the Department disclosed this information to him as part of the current matter under review. We note that Mr An has been estranged from his mother for at least the past 7 years.
We submit that s 99 of the Act must be interpreted within the context of the person making the application as opposed to a person who is listed on the application but had no hand or part in making the application, had no access to the application prior to lodgement, and was never given a copy of the application before or after lodgement.
Another aspect of this situation is that the migration law does not exist in a vacuum – there are other areas of law that can and do affect migration law. An example of this is the legal concept of “agency.” Specifically, the ability to act for someone else and bind them to agreements, contracts and applications only exists where the person exercising the power to bind someone else has the authority of that person to bind them to the contract, agreement or application. In the case of Mr An, he maintains he had no knowledge of the student visa application made in 2005 “on his behalf” by his mother. The applicant maintains he gave her no permission to make such an application on his behalf or for any other reason, and similarly maintains he gave her no permission to include incorrect information about him in the partner visa application. While the applicant has acknowledged in his statement that he was asked by his mother if he wanted to come to Australia and he responded in the positive, that expression of approval by no reasonable means extends to permission or authority for his mother to include false information about him in a visa application.
With regard to the student visa application made by his mother without the applicant’s knowledge, participation or permission, it is unreasonable to hold the applicant responsible for any aspect of that application since his mother, exercising parental control of a person under 18 years of age, chose not to tell him about the application or its outcome, or allow him to see or participate in the making of the application.
It may be a convenient simplification for the migration law, specifically s 99 of the Act, to utterly ignore the aspect of authority and whether a person had the authority to act on another person’s behalf, but that does not change the legal reality that an adult, even within the same family, does not have the legal ability to bind another adult to a contract, agreement, application, or any other binding instrument without the express permission of that person. Under the law of agency, while it may be assumed that a person who is held out by company to be an officer or agent of the company has been duly appointed and has the act on behalf of the company (Corporations Act 2001 (Cth) ss 128,129), no such default assumption exists for persons in their private capacity.
It is conceded that the applicant’s mother took a number of actions as part of making the partner visa in question that could easily be seen as being deceptive and improper, however it is inappropriate to punish the applicant Mr An for the actions of his mother, especially when those actions were taken without his knowledge, consent or permission.
We submit that any reasonable interpretation of s 99 of the Act would not hold Mr An responsible for the actions of his mother, actions which were taken without his knowledge, approval or authority – actions which in the case of the unknown student visa application, weren’t even discovered by the applicant until many years later.
The Tribunal discussed the claimed non-compliance at the hearing and the applicant’s submissions. The Tribunal firmly disagrees with the applicant’s interpretation of s 99, which would appear to be based around the claim the applicant has not been non-compliant as he was unaware of the incorrect information submitted by his mother in the Partner visa application (of which he was a secondary applicant) as well as his previous refused Student visa application.
Section 99 of the Act relevantly reads:
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.
In the applicant’s case, the incorrect information that has been provided in the applicant’s Partner visa application, which the Tribunal accepts was information that was provided by his mother, the primary applicant, not the applicant himself, was “given or provided on his behalf.” Whilst the Tribunal is prepared to ultimately accept the applicant’s claims he did not know his mother had provided incorrect information in the Partner visa application in which he was a secondary applicant, the Tribunal would note this was still information given or provided by his mother to the Department on his behalf. The Tribunal considers s 98 provides clear and unequivocal guidance: even if the applicant did not have the knowledge, so long as it was information that was provided on his behalf, that is enough to trigger non-compliance.
The Tribunal’s very conventional interpretation of s 99 is further emphasised by s 98 and s 100 of the Act. The Tribunal notes that s 98 of the Act states that a non-citizen who does not fill out their application is taken to have done so if he causes it to be filled out, or it is filled out on his behalf. In the case of the applicant, who has conceded that his mother provided information in the Partner visa application that was false and deceptive, he has submitted that his mother, as the primary visa applicant, provided the information. As the secondary applicant, he was 18 years of age at the time. The Tribunal accepts he was unaware of the details his mother included in the application back in 2008, yet that does not obviate the fact this false information was filled out on his behalf.
The applicant’s liability is further emphasised by s 100 of the Act, which states “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.” The Tribunal has accepted the applicant did not know his mother had provided information over 16 years ago that was incorrect. The applicant, however, as the secondary applicant, has caused the answer to be given or provided by his mother to the delegate. This incorrect information was provided by his mother in support of his application as a secondary applicant.
The applicant has plainly stated in his oral testimony that he was shocked to learn his mother had provided false information in the Partner visa application in relation to which he was an 18-year old secondary applicant in 2008. The Tribunal has discussed the applicant’s relationship with his mother and accepts, for the purposes of this decision, he was unaware of his mother’s actions at the time. Sections 98 to 100 of the Act, however, make it clear that there nevertheless remains clear and obvious non-compliance. The evidence suggests the applicant’s mother, as the primary applicant in the 2008 Partner visa application, has provided a range of false information pertaining to her identity and her whereabouts. This has directly adversely impacted the applicant as the secondary applicant in the Partner visa application. The Tribunal similarly accepts the applicant was unaware of his unsuccessful Student visa application submitted by his mother.
The Tribunal finds that incorrect and false answers have been provided in the applicant’s Partner visa application in which he was a secondary applicant. The primary applicant – his mother – was granted her visa on the basis of, at the very least, partly incorrect information in relation to her identity. The applicant was granted his own visa, as a secondary applicant, due to the fact he was a member of the family unit of a person who satisfies the primary criteria. Whilst the Tribunal accepts the applicant did not know this incorrect information was provided, the Tribunal finds the application was filled out on his behalf. Those answers provided were incorrect, even if, as the Tribunal accepts, the applicant did not know his mother had provided incorrect information: s 100. As the Tribunal stated at its hearing, the Tribunal does not accept the applicant’s argument that he is somehow not liable due to the legal principles of agency. The Tribunal also rejects the applicant’s claim that s 99 must be interpreted within the context of someone who, like the applicant, had no knowledge of or involvement in the application process and the provision of false information. The Tribunal prefers the clear and, what it considers, precise wording of ss 98 to 100 of the Act, which makes it clear that even in the circumstances the applicant has submitted, the non-compliance of the applicant remains.

For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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: s 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.
The correct information
The applicant claims the “correct information” is that he had a Student visa refusal when he was a minor that he was unaware of until the delegate commenced the cancellation process. He claims he was unaware of his mother’s actions in lodging that application. The Tribunal considers this interpretation of “correct information” as one of the prescribed circumstances by the applicant and his representative is incorrect. The question before the Tribunal is what in fact was the correct information that ought to have been supplied to the delegate.
The delegate’s decision contains a summary of the correct information that is helpful, and included below:
The correct information is the primary visa holder’s true identity is Mingshan Zhang (DoB 8 February 1959).
Mingshan Zhang is the biological mother of Tianhu An (DoB 25 May 1988), (the visa holder). This is supported by Chinese identity documents provided by the visa holder, including a Notarial Certificate of Birth and a Republic of China National Identity card.
Mingshan Zhang was known by another identity of Yun Nan Cheong (DoB 3 October 1949) and adopted that identity when she used a bogus passport to enter Australia in 1999. She continued to purport to hold that identity by applying for other identity documents in that name while in Australia, namely a NSW Driver’s licence.
Mingshan Zhang has also purported to hold another identity in the name of Ming Ji Huang (DoB 28 March 1957), and used a bogus passport to depart Australia under this identity.
In addition, Mingshan Zhang has previously been subject to an exclusion period for overstaying a visa and departing Australia as an unlawful non-citizen, as well as having undertaken unlawful work while in Australia. She has also been refused a visa for Australia.
The visa holder has also previously been refused a visa for Australia.
At the Tribunal’s hearing the applicant conceded that his mother had provided information through her Partner visa application – to which he was a secondary applicant - that was incorrect. The applicant stated he did not know of the Student visa application his mother lodged when he was a minor.
Whilst the Tribunal accepts the applicant’s submissions that he was unaware that his mother had lodged a Student visa application for him whilst he was a minor, and his mother had provided incorrect identity information in the Partner visa application he was included in in 2008, the issue for the Tribunal remains whether the correct information was germane to the application before the delegate.
The evidence suggests that the applicant’s mother provided a wide range of information in her Partner visa applications that was clearly false and contrived. She entered Australia on a false identity, which she continued to use when applying for other identity documents. The applicant’s mother used a bogus passport to depart Australia. She failed to admit that she had been subject to an exclusion period: for overstaying; for unlawfully working whilst in Australia; and for departing Australia as a non-citizen. She failed to admit in her application that she had been refused a visa for Australia.
As the Tribunal has noted previously in this decision record, the fact the applicant was unaware of the provision of this false information by his mother in her Partner application – and the lodgement of the Student visa application whilst he was a minor – is of limited consequence when considering this particular prescribed circumstance. The question for the Tribunal is, was the information provided incorrect. The evidence before the Tribunal is that his mother provided a range of information about her identity and past record that is obviously false. The information was relevant to the consideration of her own visa. Given the applicant’s own application as a secondary applicant was linked to his mother’s application, as a member of her family unit, the fact that the information was incorrect, and the volume of the incorrect information supplied, is both significant and relevant.
On the evidence before it concerning the correct information, the Tribunal weighs this factor heavily in favour of cancelling the visa.
The content of any genuine document
The applicant made some submissions that his mother may have provided false documentation as part of her own application. The Tribunal notes, however, that the applicant’s visa was not considered under s 103 of the Act and bogus documentation. This prescribed circumstance is not relevant to the Tribunal’s considerations. The Tribunal subsequently weighs this consideration neither in favour nor against cancellation.
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 applicant claimed orally and in his submissions that as a secondary applicant, all he had to was qualify as a member of the family unit of his mother as the primary visa applicant. He states that incorrect information provided by his mother was not material, therefore, to his own qualification for the grant of the Partner (Provisional) (Subclass 309) visa. He states that, as a matter of law, the decision to grant the Partner visa was not based on the incorrect response provided as to the past Student visa refusal. In relation to the incorrect information provided by his mother in relation to her own identity and circumstances, he submitted that he could not reasonably be held responsible for the acts of his mother as the primary visa applicant as he had no knowledge, participation or visibility of the application prior to, or after lodgement. At the Tribunal’s hearing, the applicant stated he did not recall ever signing any application documents provided by his mother as a secondary applicant.
The Tribunal rejects the applicant’s interpretation. The Tribunal considers the decision to previously grant the applicant a Partner (Provisional) (Subclass 309) visa as a secondary applicant of his mother’s application was at the very least partly based on the provision of blatantly incorrect information by his mother as the primary visa applicant. The applicant in 2008 was granted his own Partner visa on the basis that he was a member of the family unit of his mother as the primary visa applicant, who met the criteria for the grant of the visa. The applicant’s mother was clearly granted a Partner (Provisional) (Subclass 309) visa in an application that contained extensive incorrect information with regards to her identity and past history. Given the applicant was granted his own visa based upon his mother satisfying the primary criteria for the grant of the visa, and her own application was granted on the basis of the provision of extensive incorrect information, that would have, as the Tribunal noted to the applicant at the hearing, impacted matters such as the ability of the applicant’s mother to pass the character test. The applicant therefore cannot establish that he would have been granted a Partner (Provisional) (Subclass 309) visa simply on the basis that, as a secondary applicant, he met criteria such as the health requirements.
The Tribunal is therefore satisfied that the decision to grant the applicant’s visa, as a secondary applicant, was based, wholly or partly, on the provision by his mother of incorrect information in her own application as the primary visa applicant.
On the evidence before it concerning 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 weighs this matter heavily in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
The Tribunal has outlined the evidence pertaining to the circumstances in which the non-compliance occurred between paragraphs 16 and 17 of this decision record.
The non-compliance occurred through the submission by the applicant’s mother, the primary visa applicant, in his 2008 Partner (Provisional) (Subclass 309) visa of a wide range of incorrect information concerning her identity and her previous migration history. The non-compliance also occurred with the failure to include information about the applicant’s unsuccessful Student (Subclass 571) visa application in 2005 when the applicant was a minor.
The applicant strongly denies any responsibility or culpability for the submission of such documentation by his mother, who was the primary applicant in her Partner visa application, and who completed the applicant’s unsuccessful Student visa application in 2005, as the applicant was at that stage a minor. He claims he was totally unaware of incorrect information being submitted by his mother as the primary visa applicant in his Partner visa application of over 16 years ago, and the Student visa application she prepared on his behalf almost 20 years ago. The applicant at the hearing stated he was simply asked if he wanted to go to Australia, and he had verbally agreed.
The Tribunal has considered the applicant’s submissions as well as his testimony at the hearing. The Tribunal ultimately accepts the applicant’s testimony that he was unaware of the detail of his mother’s Partner visa application in 2008 and the Student visa application prepared on his behalf whilst a minor. The Tribunal again notes that the operation of s 100 and s 98 of the Act mean that the applicant’s visa remained liable for cancellation, even if he is totally unaware of the incorrect information being provided. As s 100 of the Act states, “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.” The Tribunal, furthermore, again notes that s 98 of the Act states that a non-citizen who does not fill in his application form is taken to have done so if he causes it to be filled in on his behalf.
On the evidence before it concerning the circumstances in which the non-compliance occurred, the Tribunal weighs this factor in favour of cancelling the applicant’s visa. The weight is mitigated, however, by the Tribunal given that it is satisfied the applicant was unaware of the non-compliance that was a result of his mother’s behaviour.
The present circumstances of the visa holder
The applicant has provided extensive evidence concerning his present circumstances. The applicant and his partner, Ms Liyuan Ma, provided wide-ranging oral evidence at the Tribunal’s hearing concerning their current circumstances, and that of their Australian citizen children, as well as the applicant’s employment.
The applicant submits that he, his partner Ms Ma and his young children are all thoroughly integrated into the Australian community. The Tribunal notes the applicant has been in Australia now for more than 16 years. He has two children who are both Australian citizens: an eight year old son, Anson, and a one year old daughter, Anil. Medical evidence submitted by the applicant demonstrates that Ms Ma is also over three months’ pregnant. The Tribunal has noted the extensive evidence submitted pertaining to the applicant’s relationship with Ms Ma. The Tribunal is satisfied that the applicant is the father of Anson and Anil, and accepts he is the father of Ms Ma’s unborn child. The Tribunal is satisfied that the applicant is providing care, love and support to both his two children and Ms Ma. The Tribunal notes Ms Ma has two older children from a previous relationship who live with the applicant, Ms Ma, and their two children. The Tribunal is satisfied the applicant plays an ongoing and positive role as stepfather to Ms Ma’s elder children.
The Tribunal has taken into account the statements and oral evidence of the applicant as well as Ms Ma. The Tribunal found the applicant and Ms Ma to be reliable in their testimony and is satisfied they have a close bond with each other through their own relationship and the family they have together. The Tribunal is satisfied cancellation of the applicant’s visa will have a significant adverse impact upon them individually and collectively, as well as upon their cohesive family unit.
The Tribunal notes the applicant’s statement as to the impact cancellation would have upon himself and his immediate family:
Moreover, I have lived in Australia for 16 years, my home is in Australia, I am deeply rooted in the land of Australia, and I have few relatives in China. I really can't imagine how to live in China, and I absolutely cannot abandon my partner and children. Liyuan's family also immigrated to Australia very early, and she has no relatives in China. All the children were born in Australia. They have no reason to accompany me back to a strange country. It is unfair to them, and I can't drag them down.
The Tribunal also notes Ms Ma’s statement, which reflects her own articulate and detailed oral submissions at the Tribunal’s hearing:
Our son Anson was born in 2016, we had our daughter Anila in 2023, and we recently had the surprise that I am 10 weeks pregnant now. I would sincerely ask for the hearing officer’s discretion. I can’t imagine my family being torn apart. My children were born in Australia, they love this country, they love their classmates and friends, they have made many friends in the community, my son is the Captain of the school, he is a good student, he is very popular, but he doesn’t speak Chinese very well, and we can’t imagine how we would be able to take them to another country to start a new life. Tianhu (the applicant) has only one sister, and she and their father live in China, but they don’t communicate very often. Tianhu does not have a home in China. If he goes back to China, he wouldn’t be able to find a suitable job because there are too many more skilled people in China than him, and they are younger than him. In Australia he is a welder, he has been with his company for ten years, he is regarded as helpful, he helps train new people and he is very popular and well-liked in the company. He has deep roots in Australia and it would be fatal for him if his visa cancellation is upheld Our family is very scared and desperate.
The Tribunal quite simply is satisfied the applicant and Ms Ma, an Australian citizen, enjoy a long-term, genuine partner relationship with each other. The Tribunal is satisfied they have two children together, both born Australian citizens, and now have a third on the way. The Tribunal is satisfied, as demonstrated by the evidence from his employer, that he is a skilled long-term employee in the welding industry and his full-time employment with the one employer over a decade has provided him with stable employment through which he supports his partner Ms Ma and their children. The Tribunal accepts the submission of the applicant that cancellation of his visa would have a catastrophic impact upon his family unit and would put considerable adverse pressure on his children especially. The Tribunal also notes the pregnancy of Ms Ma, an Australian citizen, and accepts cancellation of the applicant’s visa would be a stressful burden to impose upon her and her children.
The Tribunal considers cancellation of the applicant’s visa in such circumstances would cause significant psychological and financial hardship on the applicant’s Australian citizen partner and his children. Whilst the applicant’s family would not be compelled to travel with him back to China, and they could maintain regular contact through a range of modern communication avenues, the Tribunal considers the hardship that would be caused is significant.
The Tribunal also accepts that the applicant has built extensive ties in Australia over the past 16 years, which it weighs in his favour. His excellent employment record, and the effusive correspondence submitted from his employers, speaks to a reliable and responsible employee.
The Tribunal has considered the evidence before it pertaining to the present circumstances of the applicant. It has taken into full account the fact that the applicant and Ms Ma have been in what it considers is a genuine partner relationship, which have produced two healthy Australian citizen children, with Ms Ma now pregnant with a third. The Tribunal accepts the applicant, Ms Ma and their children have been residing together now for many years, and the applicant is respected and supported by Ms Ma’s older children. The Tribunal has taken into account the current financial situation facing the applicant, Ms Ma and their family, and the health and wellbeing of Ms Ma, given she is over three months’ pregnant especially.
The Tribunal furthermore notes the applicant has now been in Australia for some 16 plus years. The Tribunal accepts he has built extensive community and employment ties since arriving in Australia in 2008. The Tribunal furthermore accepts his submission that he was unaware as to the provision of incorrect information by his mother in the application he was a secondary applicant in, until receiving the notice of intention to cancel his visa from the Department many years after the application was lodged.
The Tribunal accepts the applicant and Ms Ma, who works as a real estate agent, are like many couples juggling full-time employment and caring for children whilst building a life together. The Tribunal accepts the applicant, Ms Ma, and their children will individually and collectively face extensive emotional and financial hardship should the applicant’s visa be cancelled.
The applicant provided, at the Tribunal’s request, a range of further evidence in the form of bank statements and credit card documentation as well as photographs and other evidence that speak to the genuineness of the claims the applicant is supporting Ms Ma and the children on a daily, ongoing basis. The Tribunal is satisfied the applicant is financially supporting Ms Ma and their family on a long-term, ongoing and consistent basis.

The Tribunal notes the evidence that the applicant was previously in a relationship with a cousin of Ms Ma, Ms Kang. The applicant sponsored Ms Kang for a Partner visa many years ago that was subsequently granted. The Tribunal discussed the Ms Kang Partner visa application with the applicant and his relationship with Ms Ma, who the Tribunal accepts the applicant has known for many years. The Tribunal noted that the evidence suggests the applicant and Ms Ma commenced a relationship together at a time when the applicant was still in a relationship with Ms Kang. The prescribed circumstance before the Tribunal, however, pertains to the applicant’s present circumstances. The Tribunal considers for the purposes of this matter, the clear evidence of the applicant’s long-term relationship with Ms Ma, their life together, and their two Australian citizen children together, with a third to follow, outweighs concerns the Tribunal may have as to the applicant’s relationship circumstances, and the sponsorship of Ms Kang, some years ago.
On the evidence before it concerning the present circumstances of the applicant, in particular the hardship potentially faced by Ms Ma and the applicant’s Australian born, Australian citizen children, the Tribunal weighs this factor very heavily against cancelling the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal has considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act.
The Tribunal notes that the decision record the applicant provided indicates the applicant did respond to the Notice of Intention to Consider Cancellation (NOICC) and has engaged in the cancellation consideration process.
On the evidence before it, the Tribunal weighs this factor slightly against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant has submitted there are no other instances of non-compliance.
The Tribunal at its hearing explored the matter of the applicant’s previous sponsorship of Ms Conghui Kang for a Partner visa, which was granted on 17 July 2017 after the birth of his eldest son Anson to his current partner Ms Ma. The Tribunal will again note it is satisfied the applicant is the biological father of the now nine-year old Anson and cares for him, with Ms Ma, as his father. The applicant and Ms Ma stated that she had fallen pregnant to the applicant whilst he was still in a relationship and sponsoring Ms Kang. Ms Ma and the applicant have submitted that Ms Ma did not initially tell the applicant that she had fallen pregnant at the time given the circumstances of the pregnancy. This led to the applicant not being listed on Anson’s birth certificate. The applicant and Ms Ma explained that Ms Kang was not happy, understandably, when she discovered the applicant had fathered a child with Ms Ma.
The issue as to whether incorrect information was provided by the applicant, as the then sponsor, to the Department during the processing time of Ms Kang’s final stage Partner visa is open to conjecture. The Tribunal would note that the evidence is clear that the applicant’s son to Ms Ma, Anson, was born well before the grant of a Partner visa to Ms Kang in July 2017. The Partner visa to Ms Kang was granted on the basis she was in a genuine and ongoing relationship with the applicant at the time of decision in July 2017. The applicant at the Tribunal’s hearing has purported he was in a relationship with Ms Kang at the time of decision of her Partner visa, stating they finally formally divorced in 2021. The Tribunal notes that, on the evidence, the applicant potentially engaged in non-compliance when he sponsored Ms Kang’s final stage Partner visa application. The alternate conclusion, that he was in a genuine spousal relationship with Ms Kang at this time, and engaged in a temporary sexual relationship with Ms Ma, is also possible.
The Tribunal finds there are no other instances of non-compliance known to the Tribunal.
In the absence of further evidence and information pertaining to this matter concerning Ms Kang and the applicant’s previous sponsorship, the Tribunal weighs this factor neither in favour nor against cancelling the visa.
The time that has elapsed since the non-compliance
On the evidence before the Tribunal, the applicant has now been in Australia for a decade and a half.
The Tribunal agrees with the applicant that the time that has elapsed since the non-compliance is substantial. It is well over 16 years since the applicant’s mother lodged the Partner visa application in which the applicant was included as a secondary applicant. It is now approaching two decades since the applicant’s Student visa application was lodged when he was a minor. The Tribunal accepts the applicant has integrated himself into the Australian community through family via two and soon three Australian citizen children, a partner he has been in a lengthy relationship with, and his employment in the Australian community, where he has spent the last decade with the same employer.
The Tribunal has considered the time that has elapsed since the non-compliance and weighs this matter heavily against cancelling the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal notes that breaches of visa conditions are breaches of migration law so they can be considered under reg 2.41(j) if those breaches occurred after the non-compliance that triggered the cancellation: Dalla v MIBP [2016] FCA 998 at [19].
There is no evidence of any breaches of the law since the non-compliance over 16 years ago. The Tribunal is satisfied on the evidence before it that the applicant has not breached Australian criminal law.
The Tribunal weighs this factor against cancelling the applicant’s visa.
Any contribution made by the holder to the community
The applicant provided the Tribunal with a significant amount of evidence concerning the applicant’s contribution to the Australian community. To summarise, the submissions from the applicant and various employers, work colleagues and friends have suggested the applicant is making a positive contribution to society.
The applicant has worked as a welder for Genneral Staircase since September 2014. Mr Glen Genner, Managing Director of the business, writes in his statement that
Maxy (the applicant) serves as the leading hand in our metal shop division, a role in which he has truly excelled. Over the past decade, Maxy has not only developed his own skills but has also been instrumental in building and nurturing our team. His leadership has been a cornerstone of our department’s success, overseeing the training and development of our staff with a level of care and dedication that is truly commendable…
…The growth and success of our company and team are, in no small part, due to Maxy’s continued efforts and contributions. We are truly privileged to have him as part of our team… He is, without a doubt, an invaluable asset to Genneral Staircase.
Other staff at Genneral Staircase have attested to the applicant’s honesty in being upfront about his visa challenges, as well as highlighting his contribution to supporting his family. Ms Kelly Lodding, HR 7 WHS Manager at Genneral Staircase, wrote to the Tribunal:
Over the past 7 years I have had the privilege to work closely with Mr An and to interact with his beautiful family at work functions. I can confirm that he is a man of great principles, integrity, honesty and is extremely dedicated to both his work and his family. His work ethic is exemplary. Mr An was open and honest with our executive team on the issues he is currently having with his visa and the mistakes that were made on his visa application. Mr An is an honest hard working family man that I am proud to work with and I believe he has the personal attributes that all Australians want in our country and he should not have his visa cancelled.
His colleague Mr Bradley Belbin has attested that the applicant is “a great father and a devoted husband, Max provides a stable and loving environment for the family and is a supportive role model for his family and the friends around Max.”
The Tribunal accepts that the applicant is a model employee and has made a significant contribution to the business. The Tribunal notes labour market shortages in welding, with the industry predicting a shortfall of some 70,000 qualified welders in Australia by 2030: The Tribunal accepts that the applicant is making a positive and worthwhile ongoing contribution to the Australian community through his employment in a key local manufacturing industry facing some significant challenges, and subsequently the Tribunal gives this some positive weight.
The applicant has also raised his taxes and other contributions he pays as an employee. The Tribunal considers these costs are faced by all employees in the Australian workforce rather than a specific contribution to the community. The Tribunal does nevertheless take this contribution into account.
The Tribunal notes the statements from his friends and neighbours such as Mr Gustavo Aguilera, Ms Mo Li and Mr Shane McManus who have all attested to the applicant’s positivity and helpfulness as a friend, colleague and neighbour.
The Tribunal has considered the contribution made to the community and weighs this matter against cancelling the applicant’s visa.
Consequential cancellations
At the hearing, the applicant confirmed there will be no consequential cancellations as a result of the cancellation of the applicant’s visa under s 140. The Tribunal weighs this matter neither in favour nor against cancelling the applicant’s visa.
Best interests of children
The Tribunal has considered if there are children whose interests would be affected by cancellation, or consequential cancellation. The Tribunal accepts the applicant has two Australian born, Australian citizen children. His partner Ms Ma has a third child to the applicant due in less than six months. The applicant furthermore has some responsibilities to Ms Ma’s two older children who are also Australian citizens. The Tribunal has considered the best interests of the children as a primary consideration when deciding whether to cancel the applicant’s visa.
The Tribunal accepts on the evidence before it that the best interests of the applicant’s children are that the applicant’s visa is not cancelled. Whilst the applicant may be able to remain in regular communication with his children via modern telephonic communication devices, such a situation, the Tribunal accepts, would be significantly inferior to his remaining in Australia. The Tribunal accepts the applicant plays an important ongoing role in supporting his children through the provision of care, as well as his financial contribution through his full-time employment. Whilst the applicant may be able to provide some support from offshore, and the Tribunal acknowledges his partner Ms Ma is in employment (albeit she is currently pregnant with their child and will most likely scale back her participation in the workforce for at least a time), the Tribunal considers there will be further financial hardship and challenges for his children and his partner Ms Ma.
The Tribunal notes the evidence that the applicant’s son speaks little Chinese and is thoroughly integrated in his primary school where he is class captain. The Tribunal considers relocation of the children, who are Australian citizens, to China would be a considerable challenge and impose a wide range of difficulties.
On the evidence before it, the Tribunal weighs the best interests of the applicant’s children heavily against cancelling the applicant’s visa.
Human rights implications
The Tribunal has considered whether cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The Tribunal notes the applicant has not made any claim to protection. The Tribunal has considered whether cancellation would lead to the person's removal in breach of Australia's international or family unity obligations. On the evidence before it, given no international obligations arise on the evidence before the Tribunal, the Tribunal weighs this factor neither in favour nor against cancelling the visa.
Mandatory legal consequences of a decision to cancel the visa
The Tribunal has considered whether there are mandatory legal consequences of cancellation, 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.
The Tribunal notes, as was submitted at the Tribunal’s hearing, that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. The applicant will also be subject to a s 48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied for, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from the date of cancellation except in certain circumstances.
The applicant through his representative acknowledged that if he were subject to a s 48 bar he could still apply for an onshore Partner visa. To meet the criteria, however, the applicant, as he would not meet the Schedule 3 criteria, would have to provide compelling reasons as to why the relevant criteria ought to be waived. Whilst the Tribunal considers the evidence of a current genuine Partner relationship between the applicant and Ms Ma is strong, the Tribunal notes that any decision as to compelling reasons for the waiver of the Schedule 3 criteria is subjective.
The Tribunal has considered the mandatory legal consequences of a decision to cancel the applicant’s visa and weighs the matter neither in favour nor against cancelling the applicant’s visa.
Conclusion
Whilst the Tribunal considers there is clear evidence that there was non-compliance by the applicant in the information provided by the applicant’s mother in the Partner visa application of 11 February 2008 and the Student visa application of 26 April 2005, the Tribunal has determined, having taken into account the prescribed circumstances, that the visa not be cancelled. The Tribunal has accepted the applicant was unaware when, as a minor nearly two decades ago, his mother made an unsuccessful Student visa application on his behalf. The Tribunal furthermore has accepted the applicant was unaware that, as a secondary applicant, his mother as the primary Partner visa applicant provided incorrect information pertaining to her past fraudulent identity and her adverse migration record. The non-compliance of the applicant, however, remains relevant due to the operation of s 100 and s 98 of the Act. The Tribunal accepts the applicant’s submissions that he maintains no ongoing relationship or communication with his mother who prepared the applications in issue.
The Tribunal has taken into account the oral and written submissions of the applicant, his partner Ms Ma and his work colleagues and friends in determining whether the visa should be cancelled. The Tribunal is satisfied, based on all the evidence before it, that it ought not be cancelled. The Tribunal has placed particular weight and significance on the applicant’s two young Australian citizen as well as his third child, who will arrive early in 2025. The Tribunal accepts the applicant plays a key and ongoing role in their care and support as their father. The Tribunal accepts it is not in their best interest for the applicant’s visa to be cancelled. The Tribunal places weight on the extended period of time that has elapsed since the non-compliance – over 16 years. During this period, the applicant has had no adverse interactions with the law; rather he has built a successful career in the Australian manufacturing industry as a welder. He is a highly valued and loyal employee. It is impossible for the Tribunal to know the genuine detail of the earlier circumstances of the applicant’s past relationship with Ms Kang, who he sponsored for a Partner visa. Any concerns are, however, in the Tribunal’s opinion, outweighed by his commitment to his young Australian family, his partner today, who is expecting their third child, and his strong commitment to employment and making a positive contribution to Australia. Having considered each of the considerations individually and cumulatively, and all the evidence before it, the Tribunal has concluded that the applicant’s Subclass 155 (Five Year Resident Return) visa should not be cancelled.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
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.
Justin Owen
Deputy President

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.