Bian (Migration)

[2021] AATA 810

Bian (Migration) [2021] AATA 810 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaojing Bian

CASE NUMBER:  2006082

DIBP REFERENCE(S):  BCC2017/4301603

MEMBER:Susan Trotter

DATE:12 February 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 12 February 2021 at 4:35pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 186 Employer Nomination Scheme – incorrect information in the visa application – residential address and employment details in another state – applicant’s boyfriend and restaurant in Brisbane – international travel via Brisbane – applicant never held lease documents in Adelaide – employment records in Adelaide – discretionary power to cancel the visa does not arise – decision under review set aside   

LEGISLATION

Migration Act 1958, ss 101, 103, 107, 109, 113
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a now 37-year-old citizen of China who applied for the visa on 1 November 2016 with the visa granted on 24 May 2017. The visa applicant was the subject of an approved nomination of The Big Fortune Pty Ltd for the position of Restaurant Manager for its restaurant T-chow Chinese Restaurant located in Adelaide, South Australia.

3. On 13 January 2020, the Department of Home Affairs (the Department) sent a Notice of Intention to Consider Cancellation (NOICC) of the visa to the applicant.

4. On 19 March 2020, the delegate cancelled the visa on the basis that the applicant did not comply with ss.101(b) and 103 of the Act. In particular, the delegate found that the applicant provided incorrect information to the Department in her 1 November 2016 visa application relating to her residential address and employment. Further, having regard to the prescribed circumstances to be considered, the delegate concluded that the discretion to cancel the visa should be exercised.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 25 March 2020 and provided the Tribunal with a copy of the delegate’s decision.

6. The applicant appeared before the Tribunal on 3 December 2020 and 28 January 2021 to give evidence and present arguments.

7. The applicant was represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   ISSUES

9. 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.

10. 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.

11. Relevantly in this case, s.101(b) of the Act provides that a person’s visa application form must be filled in in such a way that no incorrect answers are given or provided.

12. If there is non-compliance in the way described in the notice given to the applicant under s.107 of the Act, and cancellation is not prohibited by s.113, 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. Extracts of the legislative provisions relevant to this case are attached to this decision.

14. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Has a valid notice been issued under s.107 of the Act? And, if so,

    (b)  Is there non-compliance in the way described in the s.107 notice? And, if so,

    (c)   Should the visa be cancelled?

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue 1 - Has a valid notice been issued under s.107 of the Act?

15. On 13 January 2020, the delegate issued a notice under s.107 of the Act setting out the relevant provisions and the particulars of the non-compliance.

16. 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.

    Issue 2 – Is there non-compliance in the way described in the s.107 notice?

17. The 13 January 2020 notice notes that in the 1 November 2016 visa application form the applicant:

    (a)  stated her contact details as a residential address in Unley, South Australia, 5061.

    (b)  stated her intended state of residence in Australia as South Australia.

    (c)   stated that her employment undertaken in the prior 10 years had included as Restaurant Manager for The Big Fortune Pty Ltd from 6 October 2014 to 1 November 2016.

    whereas:

    (a)  Department information indicates that the location of the restaurant run by the employer is in Moonta Street, South Australia.

    (b)  Financial information from the Australian and New Zealand Banking Group Limited (ANZ) profoundly indicates that during the period May 2016 to June 2017, the applicant was based in Queensland with transactions specifically associated with her personal credit card showing daily purchases in Queensland suburbs. Additionally, the address on the applicant’s bank statements is recorded as an address in Runcorn, Queensland. This contradictory to the declaration of completing full-time employment from October 2014 to November 2017 with the employer located in Adelaide, South Australia.

    (c)   The period May 2016 to June 2017 (in relation to the ANZ bank statements) predates the lodgement of the application (on 1 November 2016) and continues after the date of grant of the visa and indicates that the applicant was not in South Australia at the time that was indicated on both the nomination application and the visa application.

    (d)  Department records further confirm that all recorded arrivals by the visa applicant into Australia since 2008 have been at Brisbane International Airport and all incoming passenger cards have declared that the applicant intended to reside at a residential address in Queensland.

18. It was therefore stated in the notice that there had been non-compliance as follows:

    (a)  As the applicant was not in Adelaide during the period of time between October 2014 and November 2017, she could not have fulfilled the position nominated by the employer such that the nomination was made fraudulently, and the answers given by the applicant in relation to the nomination details may be incorrect.

    (b)  Responses to questions in the visa application about “Residential details” and “Intended State of Residence while in Australia” are considered incorrect because evidence shows that the history of the applicant’s arrival in Australia and intended addresses provided on incoming passenger cards have been in Queensland (not Adelaide).

    (c)   The response to the question “Give details of employment undertaken in the last 10 years” is considered incorrect as information suggests that the applicant was not working for the employer from at least May 2016 until the day of application on 1 November 2016.

    (d)  The response to the question “have you provided complete and correct information in every detail on this form, and on any attachments to it” is considered incorrect because it relies on information provided that is considered incorrect such that the answer to this question may also be incorrect.

    Were incorrect answers given or provided in the employer nomination application or in the visa application?

19. In determining whether there is non-compliance as described in the s.107 notice, the Tribunal therefore needs to essentially consider whether:

    (a)  The applicant was residing in Adelaide, South Australia as stated at the relevant times; and

    (b)  Whether the applicant was working full-time as a Restaurant Manager for the employer from 6 October 2014 to 1 November 2016.

20. The Tribunal has had the benefit of closely questioning the applicant both at the first hearing, and again at the second hearing after giving the applicant the opportunity of considering the ANZ bank statements obtained by the Department which had not previously been sighted by the applicant.

21. The documentation already provided to the Department responsive to the notice included as follows:

    (a)  Work records including details of suppliers of T-chow restaurant and the applicant’s interactions with suppliers and other stakeholders of the restaurant.

    (b)  T-chow restaurant rosters for staff.

    (c)   Independent Medico-Legal Report of Dr Peter Gan dated 13 November 2019 in relation to accident on 6 May 2018, including occupational history noting that the applicant had moved to Adelaide in 2014 to manage a Chinese restaurant with a return back to Brisbane in October 2017.

22. In summary, the applicant’s oral evidence to the Tribunal included as follows:

    (a)In 2008, she arrived in Australia as the holder of a student visa.

    (b)In 2010, she and a fellow student opened a Nando’s restaurant at Wellington Point in Brisbane.

    (c)In February 2012, the applicant commenced a relationship with Mr Yi Zhang, who was residing in Brisbane.

    (d)She was exploring her visa options in Australia, including in relation to obtaining a visa related to her business, however due to deception by a migration agent, and changes in immigration policy, her planned visa arrangements fell through and she departed Australia in 2013. She thereafter continued to explore visa and job opportunities in Australia and found a job at the T-Chow Chinese restaurant in Adelaide commencing in October 2014. She returned to Australia via Brisbane to reunite with her boyfriend and to pack up some of her personal belongings that remained in Brisbane.

    (e)She then flew domestically from Brisbane to Adelaide to commence her job at T-Chow.

    (f)She worked full-time in Adelaide from 1 October 2014 to August 2017, as is evidenced by her PAYG statements in evidence. During this period, she regularly travelled between Adelaide and Brisbane whenever she could to visit her boyfriend, Mr Zhang, who was still residing in Brisbane, to visit other friends in Brisbane and to check on the Nando’s business.

    (g)One of the reasons she flew into Brisbane from China is because of her close personal ties to Brisbane and because she still stored personal belongings in Brisbane. Further, and importantly, there was a direct flight from her hometown in China to Brisbane, but not to Adelaide.

    (h)When she first arrived in Adelaide, she stayed at her boss’ home at Maud Street, Unley for a short time and also utilised his address initially for some correspondence as it was a bit difficult to start with finding some where to stay and she needed to have an address for important documents. She thereafter resided at a number of different places in Adelaide with various workmates/friends/flatmates at addresses including at Carrington St and Warwick Avenue. She had female flatmates including because her boyfriend did not want her to have male flatmates. As she moved in to established rental arrangements, she was not on the lease documents. Her living arrangements changed due to normal changes in circumstances such as, for example, when one of her flatmates moved to Melbourne, and when another flatmate moved in with a boyfriend. She did also sometimes stay at her boss’ Maud Street, Unley address when she was in between other addresses.

    (i)In the first year that she was living and working in Adelaide, she probably returned to visit Brisbane four or five times, usually for her or her boyfriend’s birthdays and around Christmas/New Year and then for the Chinese New Year. When she visited Brisbane, she utilised times when there were public holidays and/or used her annual leave during quiet times for the restaurant as best she could. Her boyfriend, Mr Zhang, only visited her in Adelaide once, for their birthdays.

    (j)She started visiting Brisbane more frequently at one point because she was starting to hear rumours from other friends that her boyfriend was ‘cheating’ on her with other girls. Her boyfriend had complete access to her ANZ credit card and held both of the cards linked to that account, which included a normal credit card and also an American Express credit card. While she was in Adelaide, he had full use of those cards and she utilised her Chinese bank account (funded by her parents), for which she has provided some translated statements, for her expenses in Adelaide. She has obtained bank account statements for this account as far back as she could. The bank was not able to give her bank statements back as far as 2014 – she got as far back as they were able to give.

    (k)Mr Zhang assisted with buying things for the Nando’s restaurant on the ANZ credit card and many of the purchases can be linked to Nando’s. Except for when she went on a holiday to Hong Kong in 2016 and took the ANZ American Express card with her, Mr Zhang used the cards for the ANZ credit card and she used her Chinese bank account.

    (l)In addition to his studies, Mr Zhang was working on or helping out at Nando’s the whole time she was living and working in Adelaide. Unfortunately, because of COVID-19, she and her co-owner have recently had to close the Nando’s at Wellington Point.

    (m)She finished working at T-Chow in Adelaide in August 2017 and returned to live in Brisbane. Her boyfriend then moved out in November 2017 and ended up leaving Australia in February 2018 and she does not now know where he is. As it transpires, as suspected, he was ‘cheating’ on her. She cancelled the ANZ credit card in November 2016 because Mr Zhang was spending ‘money like water’ and they were living beyond their income. She then continued using the Chinese bank account, funded by her parents, and her income from T-Chow for her living expenses. Upsettingly, it is only since she has been provided with the ANZ bank account statements by the Tribunal that she realises how much her boyfriend was buying things using the ANZ credit card for other girls, consistent with the rumours she was hearing from her Brisbane friends about him having other girlfriends. She knew he was spending a lot of money, but she did not know everything he was spending it on.

    (n)When she received her permanent visa in May 2017, she talked to her bosses at T-Chow about leaving. By that time, she was getting even more concerned about her long-distance relationship with Mr Zhang. Her bosses, Jarrod and Patrick, had asked her to let them know three months before she left in order to allow them enough time to get a replacement for her and that is what she did. This is evidenced by copies of text messages provided to the Tribunal.

    (o)It has been difficult for her to get evidence in relation to a lot of these matters as because of COVID-19 she has not been able to return to Adelaide freely to follow up with friends/former workmates and nor has she been able to return to China. T-Chow restaurant is still in existence but the owner she had the most to do with, Jarrod, sold his share and she does not know where he is now. Other staff have been replaced and many of the staff, being overseas students, have returned to different countries.

    (p)As the result of a car accident in May 2018, as referred to in the report of Dr Gan in evidence before the Tribunal, she has lost her memory from certain periods of time but has tried as best she can to respond to the issues raised by the Department.

23. In addition to the oral evidence of the applicant at the hearings, the Tribunal has also taken into account the documentary evidence provided by the applicant to the Tribunal, including the following:

    (a)Statement of Niko Liang dated 28 November 2020 as follows:

    “I confirm that:

    ZIAQJING BING (Kris) is my workmate in Tchow restaurant. She is the restaurant manager. She began to work her from October – almost the end of 2014, and our boss Jarrod during this period introduced her to us on the occasion of staff meal.

    During that period, I was studying in the University of South Australia, and I just had a few hours work each week. We had little conversation, she is introverted who doesn’t like talking too much.

    She left Tchow restaurant about August 2017.”

    (b)Text messages between Jarrod of T-chow restaurant and the applicant including in relation to purchases by the applicant for the restaurant and subsequent reimbursement.

    (c)Text messages between Jarrod of T-chow restaurant and the applicant in relation to the applicant taking leave between 10 and 15 June 2016 and Jarrod advising payroll so that the leave could considered as annual leave.

    (d)Text messages between Jarrod of T-Chow restaurant and the applicant advising in relation to the applicant’s PAYG statement and her superannuation account in 2016.

    (e)Text messages between Jarrod of T-Chow restaurant and the applicant in relation to a flight delay when the applicant was returning to Adelaide in October 2016.

    (f)Text messages between Jarrod of T-Chow restaurant and the applicant advising in relation to the applicant’s plan to move interstate (to Brisbane) in August 2017 and Jarrod rearranging the rosters around her departure, including her final date of work on 6 August 2017.

    (g)Various text messages between the applicant and staff and suppliers in relation to T-Chow restaurant activities.

    (h)Various invoices showing personal purchases by the applicant addressed for delivery to various residential addresses in Adelaide, consistent with residential addresses advised by the applicant as her addresses, on:

    - 24 November 2014 ($1,114.89) addressed to Carrington St, Adelaide

    - 20 February 2015 ($425) addressed to Carrington St, Adelaide

    - 30 March 2015 ($358.68) addressed to Carrington St, Adelaide

    - 26 June 2015 ($570.60) addressed to Carrington St, Adelaide

    - 13 August 2015 ($1,137.35) addressed to Warwick Ave, Adelaide

    - 7 March 2016 ($325.00) addressed to Warwick Avenue, Adelaide

    - 17 November 2016 ($488.70) addressed to Warwick Avenue, Adelaide

    - 6 January 2017 ($354.77) addressed to Warwick Avenue, Adelaide

    - 29 January 2017 ($264.55) addressed to Warwick Avenue, Adelaide

    - 12 June 2017 ($405.01 addressed to Warwick Avenue, Adelaide

    (i)Translated bank statements from China Minsheng Bank from January 2016 to May 2017.

24. The delegate in their decision notes that during post-grant verification checks, the Department received bank account statements of the applicant from ANZ. It is not clear form the Department’s file what initiated the request for these statements, however, the Department’s file does contain a cancellation referral noting that ‘Credible and substantial third party verifiable evidence confirms that the VH has been living in Queensland for the whole monitoring period, further, Departmental records determined that she has lived in QLD since arriving in Australia’. The Department’s file also contains information showing that the applicant had provided a Runcorn, Queensland address to the Department on 16 December 2019, a property that records show was purchased by the applicant under a contract of sale dated 14 December 2015. Understandably the purchase of a residential property in Queensland at a time when the applicant is said to be residing in South Australia could raise concerns as to whether she was at that time actually residing, and working full-time, in South Australia. Further, and understandably, concerns would reasonably be held upon examining the ANZ banking statements. In particular, the large and frequent number of transactions on the ANZ statements are, without further explanation, suggestive of the holder of the account being present in Queensland. However, the Tribunal has had the opportunity of fully canvassing the applicant’s circumstances, including details in relation to the Brisbane property purchase and the use of her ANZ credit card during the relevant period, with the applicant across the course of two hearings. Initially the Tribunal held concerns about the extensive expenditure on the applicant’s ANZ credit card in Brisbane on an almost daily basis over a period when she claims to have been working full-time in Adelaide. Those concerns included because of the nature of some of the spending clearly being purchases that would usually be purchases by a female rather than a male. However, the Tribunal found the applicant’s account of her circumstances plausible, including the difficulties of a long-distance relationship and the details of that relationship and what could only be called financial abuse by the applicant’s then boyfriend, including in utilising the applicant’s (and her parents’) monies liberally and apparently for purchases for other girls. Notably, in addition to the documentation already specified, the applicant also provided significant documentation corroborative of the claimed relationship with Mr Zhang during the relevant period and the applicant’s plausible evidence in this regard alleviated concerns that the Tribunal initially held.

1. The Tribunal placed considerable weight on the independent medical report of Dr Gan in 2018. At the time the report was prepared, the applicant had no reason to have any concerns in relation to her visa status. Notably Dr Gan’s report quite unremarkably includes reference to the applicant’s full-time work in Adelaide between 2014 and October 2017.

2. Further, the evidence shows that the applicant made a number of expensive online purchases throughout 2014, 2015, 2016 and 2017 all delivered to various residential addresses in Adelaide, consistent with addresses stated by the applicant to be her addresses from time to time. The Tribunal puts significant weight on these transactions and considers the delivery addresses for such significant purchases as also corroborative of the applicant living at the claimed addresses in Adelaide at the relevant times.

3. Notably, also in evidence before the Tribunal are the PAYG statements / taxation documents showing the applicant was employed by employer for the entire period claimed.

4. Having had the opportunity of fully canvassing the applicant’s circumstances, the Tribunal is satisfied that:

   (a)  at the time of the visa application on 1 November 2016, the applicant was residing at 4/48 Maud Street, Unley, consistent with the residential address provided in the visa application;

   (b)  at the time of the visa application on 1 November 2016, the applicant’s intended state of residence in Australia was South Australia, consistent with the information she provided in the visa application and consistent with various residential addresses for the applicant in Adelaide from 2014 until August 2017; and

   (c)   the applicant worked full-time as a Restaurant Manager for the T-chow Chinese Restaurant in Adelaide, owned by The Big Fortune Pty Ltd, for the period 6 October 2014 to 1 November 2016 (continuing until August 2017) as stated in the visa application and consistent with the Nomination details provided in the application.

5. It also follows that the applicant in stating that she had provided complete and correct information in every detail in relation to the application form did not provide an incorrect answer.

6. Having had regard to all matters, the Tribunal is satisfied that the responses given by the applicant in her application form on 1 November 2016, variously, that she was intending to reside in South Australia, residing in Australia and had worked for T-Chow in Adelaide from 6 October 2014 to 1 November 2016 (and was continuing to work for them) were correct. Consequently, in answering ‘yes’ to the question “have you provided complete and correct information in every detail on this form, and on any attachments to it” was not incorrect in the way specified in the notice. Further, the Tribunal is satisfied that the nomination was not made fraudulently as stated in the notice.

7. The Tribunal concludes that there is not non-compliance in the way described in the s.107 notice.

   Issue 3 - Should the visa be cancelled?

8. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise and it is not necessary to consider this issue.

   DECISION

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

   Susan Trotter
   Member

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.