Cashmore (Migration)

[2022] AATA 1106

Cashmore (Migration) [2022] AATA 1106 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joseph Cashmore

CASE NUMBER:  2114413

HOME AFFAIRS REFERENCE(S):          BCC20202748739

MEMBER:Linda Holub

DATE:2 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 2 February 2022 at 8:35am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – applicant had provided incorrect answers in visa application –  there was non-compliance in the way described in the notice – applicant had not undertaken six months specified work in regional Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2, cl 417.211

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. On 11 October 2021 the delegate of the Minister for Immigration cancelled the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act) on the basis that the applicant provided incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa.

3. Department verification checks concluded the applicant never worked at the construction business, Pearl Recruitment Group (WA) Pty Ltd. Therefore, he had not undertaken six months specified work in regional Australia. Based on that information, it appeared the applicant provided incorrect answers in support of his Working Holiday (Extension) visa application. The delegate made a decision to cancel the visa.

4. The review applicant appeared before the Tribunal on 27 January 2022 to give evidence and present arguments.

5. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by video through the Microsoft Teams application. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

BACKGROUND

1. The applicant is a citizen of the United Kingdom and is 25 years of age. Department records indicate that he was initially granted a Subclass 417 (Working Holiday) visa on 1 December 2018. He first arrived in Australia on 27 December 2018 and his visa was valid until 27 December 2019. He was granted a second extension on 17 January 2020 that was valid until 3 November 2020. He was granted a Working Holiday (Extension) (Third) (subclass 417) visa on 3 November 2020 with the visa due to expire on 27 December 2021.

2. On 9 August 2021 a Notice of Intention to Consider Cancellation was sent to the applicant and he responded via email on 22 August 2021.

CONSIDERATION OF CLAIMS AND EVIDENCE

10) 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.

1. 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.

2. 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?

1. 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 101(b) of the Act in that incorrect answers were given by the applicant in his application for a Working Holiday (Extension) visa.  

14) On 9 August 2021 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Working Holiday (Third) (subclass 417) visa under s.109 of the Act. The notice advised the applicant that the delegate considered there had been non-compliance with s.101 of the Act which provided that a non-citizen must fill in their application in such a way that no incorrect answers are given or provided.

15) The NOICC stated that on 3 November 2020 the applicant lodged an application for a Working Holiday (Extension) (subclass 417) visa using the Department’s online lodgement facility, providing the following answers on the electronic visa form:

Under the heading ‘Application Type’, where the applicant is requested to declare:

‘They have carried out at least six months of specified work’ you answered ‘Yes’.
‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass417)’ you answered ‘Yes’.

Under the heading ‘Details of specified work undertaken’, you provided the following answers:

Legal registered name: Pearl Recruitment Group (WA) Pty Ltd
Trading name: Pearl Recruitment Group (WA) Pty Ltd
Australian Business Number
(ABN): 75145084046
Postcode: 6753
Industry type: Construction
Industry type sub-group: Construction
Date from: 09 March 2020
Date to: 30 August 2020
Total days worked: 190

Under the heading ‘Working holiday declarations’, in response to the question

Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’, you answered ‘Yes’.

16) The NOICC then set out the information which indicated why those answers were incorrect. The Department initiated employment verification checks with Pearl Recruitment Group (WA) Pty Ltd, the business registered under ABN 75145084046, to verify his employment claims. On 19 November 2020, Pearl Recruitment Group (WA) Pty Ltd contacted the Department and was advised that the applicant has never worked at their business.

17) The NOICC stated that, based on this information the delegate considered that the applicant did not comply with s.101(b) of the Act because when he lodged his application for a Working Holiday (Third) (subclass 417) visa), the answers he gave were incorrect as verification checks undertaken by the Department had concluded that he never worked at the business, Pearl Recruitment Group (WA) Pty Ltd. Therefore, he had not undertaken six months specified work in regional Australia.

18) The applicant was invited to comment on the possible non-compliance by providing a written response within 14 days as to why his visa should not be cancelled.

19) The applicant responded via email on 22 August 2021. In summary he stated that:

• When his second Working Holiday visa was due to end, the United Kingdom (UK) was at the height of the current pandemic, and he did not wish to return. He felt that remaining in Australia was a better option

• He was working full time in Sydney with a good, steady income and if he had returned to the UK it would have been difficult to find work. He would have also had to give up the freedoms he had in Australia if he had returned to the UK.

• Although he had not completed six months of regional work to allow him to stay for a third year but due to the pandemic, he felt that staying in Australia was his best option.

• He is now aware that there were other options for him to stay [Sub 408 visa] and he regrets his decision to apply for a third working holiday visa and not explore other options

• He has complied with all visa conditions and have built a life in Australia that he does not want to leave behind.

20) The applicant provided the Department with  screenshot /s of an undated ANZ Access Advantage bank account showing a balance of $2,004.99, and an ANZ Progress Saver account with a balance of $3,000.57.

Evidence before the Tribunal

21) On 19 January 2022, the applicant provided three unsigned and undated character references including from:

a.a close friend who grew up with the applicant and explains that the applicant initially came to Australia to visit him and his family. He states that the applicant has never been in any trouble and that he understands the applicant regrets using the incorrect information in his visa application. He wrote that the applicant wanted to “fulfil his experience to the maximum in Australia”.

b.a close friend who has known the applicant for two and a half years and has lived with a spent a significant amount of time with the applicant. It states that the applicant is hard working and has contributed to society throughout his time living in Australia and that she believes the offence is inconsistent with his character and states that he had a temporary lapse of judgement at time when there was a lot of uncertainty over his future in Australia at the height of the pandemic. The writer claims that the applicant is well-liked and respected and that she knows him to be dependable, trustworthy and honest.

c.a close friend who has known the applicant since August 2019. The letter states that he has lived with the applicant in two locations. It states that the applicant has been away now for three years without seeing any family members or close friends from home. It also states that the applicant is disappointed and upset with himself and that he regrets using incorrect information and was completely out of panic. The applicant always stays out of trouble and that he has paid his taxes. s that he had a temporary lapse of judgement at time when there was a lot of uncertainty over his future in Australia at the height of the pandemic. The writer claims that the applicant is well-liked and respected and that she knows him to be dependable, trustworthy and honest.

22) The applicant confirmed the circumstances regarding the cancellation of his visa by the Department. He stated that he got a word-of-mouth that someone get a third-year visa though a person. He acknowledged that false information was provided in support of the visa. He explained that he heard from someone else, that if he contacted and paid a particular person this person could obtain a visa for him. The applicant stated that he had reasons at the time but that it was the biggest mistake he had made and it had weighed him down in the past year. The applicant told the Tribunal that he loves Australia which is why he did it. The applicant stated that in December 2020, the last thing he wanted to do was go home because he had the best time ever. He stated that he is not a bad person and it is one of his biggest regrets

23) The applicant stated that he came to Australia to see a friend. He stated that three of them came together. He stated after six or seven months he did the farm work but essentially the rest of the time he has been living in Sydney and doing as much travel as possible having regard to the Covid restrictions. He told the Tribunal that he had worked as a labourer in construction but was currently working as a removalist. He stated that because he did not know how long he would be in Australia he had found it difficult to get settled in other jobs. He stated that he would love to live here.

24) The Tribunal notes that the applicant was open about how the non-compliance occurred although later in the hearing he told the Tribunal that he had not informed the Department about the person who he used to obtain the visa. The Tribunal also acknowledges that the applicant regrets what occurred and accepts responsibility for it. Nevertheless, the non-compliance occurred in the manner described above.

1. For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

Should the visa be cancelled?

26) 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).

27) 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).

28) The Tribunal discussed the matters prescribed in r.2.41. Details of relevant evidence given by the applicant is included in the discussion below.

The correct information

29) The applicant conceded that information about this employment is incorrect. The correct information is the visa holder did not undertake specified work in regional Australia for a period of six months; he did not work in the agriculture, construction or mining industry, bushfire recovery, or critical COVID-19 work in the healthcare and medical sectors; and he did not work for Pearl Recruitment Group (WA) Pty Ltd (ABN 75145084046) between 9 March 2020 and 30 August 2020. The correct information is substantially different from the information provided by the visa holder.

30) The Tribunal finds that this weighs in favour of cancellation in this matter.

The content of the genuine document (if any)

31) There is no allegation relating to a genuine document. This is not a relevant consideration in this matter.

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

32) In order to be granted a third Working Holiday visa, the applicant was required to meet the criterion relating to specified work in regional Australia for a period of six months.

33) The applicant repeated that the fact of him providing incorrect information weighs very heavily on him. He stated he had reasons for not undertaking the specified period of work in regional Australia. He stated that they were not bad reasons. He referred to his second year in Australia being influenced by Covid. Also for some people he knows, it took them almost eight months to complete the three months of work. He told the Tribunal that in his view this was not realistic for him.

34) The Tribunal is of the view that if the correct information had been provided, the applicant would not have been able to meet this criterion for the visa and his application for an extension Working Holiday visa would have been refused. The Tribunal considers this is a significant matter and weighs in favour of cancelling the visa.

The circumstances in which the non-compliance occurred

35) In relation to the circumstances in which the non-compliance occurred, the applicant repeated previous evidence. He stated he wanted to stay here because he had a year of disruption. He stated that initially he was not aware of the Covid visa and then his understanding was that it was only for three months and he wanted to stay longer. He stated that he was completely clueless about what might happen next.

36) The Tribunal has considered the applicant’s submissions regarding the circumstances the applicant was experiencing around this time, especially as a result of the global COVID-19 pandemic and the resulting border restrictions. However, by November 2020, when he applied for his third Working Holiday visa, the government had in place contingency options, including the Temporary Activity (Government Endorsed Event) (subclass 408) visa for persons who were facing difficulties returning to their home country due to the pandemic.

37) The Tribunal is prepared to give the circumstances in which the non-compliance occurred some weight against cancelling the visa. However, the applicant’s failure to contact the Department for advice rather than pursuing a pathway that he had heard about by ‘word of mouth’ detracts significantly from the weight it is prepared to give to this factor.

The present circumstances of the visa holder

38) The Tribunal discussed the applicant’s current circumstances with him noting that he is currently working as a removalist. The Tribunal explained to him that there does not appear to be anything in regard to his present circumstances that would weigh against not cancelling the visa. He responded that he had nothing further to add.

39) While the applicant did not provide any evidence of his employment or present circumstances, the Tribunal is prepared to accept that he is employed as a removalist. However, this it itself does not persuade the Tribunal that this factor weighs against not cancelling the 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

40) The applicant conceded his non-compliance in the response to the NOICC and there is no information before the Tribunal to indicate that subsequent to the NOICC being issued, he has not complied with any of his obligations under subdivision C of the Act. The Tribunal explained this to the applicant. He repeated evidence that he regrets the fact that he applied for the Working Holiday visa in the manner in which he did so, and it weighs heavily on him.

41) The evidence in relation to this factor weighs against cancellation of the visa.

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

42) The Tribunal told the applicant there are no other allegations of non-compliance have been made and there is no adverse information before the Tribunal to indicate other known instances of non-compliance. He had no further comment to make in regard to this.

43) The evidence in relation to this factor weighs against cancellation of the visa.

The time that has elapsed since the non-compliance

44)  The Tribunal noted that it was just over a year since the applicant applied for and was granted the visa and that of itself the time had elapsed in his case did not appear to be a reason not to cancel the visa. When asked if he had any comment the applicant acknowledged that the time that had elapsed and had nothing further to say on this point.

45) The fact of it now being just over a year since the applicant applied for and was granted the visa of itself the time does not give weight against cancellation in this matter.

Any contribution made by the holder to the community.

46) The Tribunal referred to the personal character references provided by the applicant and noted that the reference from Ms Stephanie Barr states that he has contributed to society throughout his time living in Australia and asked him what contribution he had made. He stated that it was nothing unusual and referred to him have always worked and behaved in the way you’d expect a visa holder to behave.

47) The Tribunal finds this factor does not weigh in favour or against cancellation and regards it neutrally.

Other matters

48) While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

Consequential cancellations under s 140, children and Australia's non-refoulement or family unity obligations.

49) The applicant confirmed and departmental records indicate that no other person's visa would, or may, be consequentially cancelled under section 140 of the Act. There is no evidence before the Tribunal to indicate that cancellation of the visa would lead to the applicant’s removal in breach of Australia's non-refoulement or family unity obligations or Australia’s obligations in respect of the International Convention on the Rights of the Child. The applicant was asked about this factor and did not provide any evidence that would indicate Australia would be in breach of its obligations.

Mandatory legal consequences

50) The Tribunal has considered the legal consequences of cancelling the visa, which will lead the applicant to become an unlawful non-citizen and potentially subject to detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia, as he would no longer hold a valid visa. The operation of s 48 of the Act would limit his options to apply for further visas from within Australia and he will also be affected by Public Interest Criterion 4013 which may prevent him from being granted certain types of visas for a period of three years from the date of visa cancellation.

51) The applicant stated that he understands the guidelines in relation to his departure should his visa be cancelled. The Tribunal explained to him that the mandatory legal consequences result of the cancellation of the visa and subject to any evidence put before the Tribunal are not of themselves a reason the visa should not be cancelled. The applicant stated that he understands the consequences.

Hardship that may be caused to the visa holder and any family members

52) The applicant was asked at hearing whether he considered there were any other matters which the Tribunal should take into account in terms of hardship caused to her or others by the cancellation. The applicant initially did not understand what sort of hardship was being referred to. When discussed further he stated that he is concerned about the financial implications for him. He stated that he it will be difficult for him financially to return to the UK and he will struggle. The Tribunal referred to the fact that he had sought a hearing postponement because he had travelled to Melbourne for a holiday which suggested that his financial situation was not as dire as he was suggesting. The applicant stated that if he returns to the UK he will not have job. In further discussion, the applicant stated that he has family in the UK that he is close to his family and speaks to them all the time and that he can stay with his family upon his return.

53) The Tribunal acknowledges that the applicant will have a period of adjustment when he returns to the UK and needs to find another job. The Tribunal has given consideration to the applicant’s own evidence that he has had a number of jobs in Australia and that his employment situation here has not been stable in any event.

54) Having considered the above, the Tribunal finds that, on balance, the factors in support of cancelling the visa in this case outweigh the factors that weigh against cancellation. The Tribunal has given consideration to the fact that the applicant has been able to remain in Australia for additional year since his second Working Holiday visa was due to expire. The consequences of the cancellation are in effect a direct result of the applicant providing incorrect information. 

55) The Tribunal places significant weight on the fact that the applicant would not have been granted a Working Holiday visa (Extension) if the correct information had been provided, and the applicant’s full knowledge of this when he utilised the services of a third party to assist him with his application.

56) The Tribunal has considered the applicant’s evidence about the circumstances in which the non-compliance occurred. The Tribunal has given regard to the applicant’s claims that he knew of people for whom it took eight months to undertake the regional work and that he did not want to do that. In addition, the uncertainties of the unfolding COVID-19 pandemic, border closures and travel restrictions were another issue submitted by the applicant. The Tribunal acknowledges that the applicant appears genuinely regretful and that he loves Australia. The Tribunal gives these considerations less weight in the face of the applicant’s failure to ascertain from the Department what alternative options were available but instead engaged in a process that on the face of it appeared to be deliberately deceptive to obtain a particular migration outcome.

57) 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 be cancelled.

DECISION

58) The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Linda Holub
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Notice 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.

8. Decision 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.

9. Cancellation 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.