Chen (Migration)

[2023] AATA 2121

Chen (Migration) [2023] AATA 2121 (19 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xin Chen

REPRESENTATIVE:  Mr Christopher Hugh Levingston

CASE NUMBER:  2111996

HOME AFFAIRS REFERENCE(S):          BCC2020/2646454

MEMBER:R. Skaros

DATE:19 January 2023

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 19 January 2023 at 10:54am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – employment history – integrity checks conducted by the Department – particulars of the s.107 notice – contemporaneous evidence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109

Migration Regulations 1994 (Cth), r 2.41

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 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

   Background

2. The delegate cancelled the visa on the basis that the applicant had not complied with s 101(b) of the Act in connection with a previous visa application for an Employer Sponsored (Subclass 187) visa. The information particularised in the Notice of Intention to Consider Cancellation (the s 107 notice), related to the employment claims of Mr Xiaoqin Li, who was then the applicant’s spouse and included in her Subclass 187 visa application.

3. The applicant provided a copy of the delegate’s decision record with the application for review.

4. The applicant appeared before the Tribunal by video conference from China on 11 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Xiaoqin Li, the applicant’s former husband, Ms Yanjuan Zhao, the HR Manager of the Marie Hardware Group and Ms Yanbing Zhu, the General Manager of the Marie Hardware Group. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review. The representative attended the hearing.

6. The Department’s file contains a non-disclosure certificate issued under s 375A of the Act in respect of various documents, which included internal departmental correspondence regarding the cancellation process and information obtained during a NSW ICAC investigation in relation to allegations of payment for visa arrangements by businesses in the Wagga Wagga regional area. A copy of the s 375A certificate was provided to the applicant prior to the hearing. In responding to the Tribunal’s invitation to comment on the validity of the certificate, the applicant’s representative submitted that they were unable to comment on the validity (or otherwise) of the certificate as the APS designation of the delegate who signed the certificate had not been provided.

7. The Tribunal has considered the validity of the non-disclosure certificate. Firstly, the Tribunal notes that the certificate was issued by a ‘Delegate of the Minister of Home Affairs’ and ‘Delegate of the Secretary of the Department of Home Affairs’. The delegate provided their first name and position number and signed the certificate. The Tribunal has had regard to the Delegation and Authorisations Instrument,[1] which indicates that an APS 3 level or higher is delegated to issue certificates under s 375A of the Act. The Tribunal acknowledges that the certificate did not specify the APS designation of the delegate who issued the certificate, however, a note to the certificate indicates that if an electronic signature is contained (as in the present case) then the ‘appropriate delegate’ verifies that the certificate has been validly signed. The Tribunal considers the reference to the ‘appropriate delegate’ indicates that the certificate was signed by a delegate who, on the issuing date, has certified that they have the required delegation to issue the certificate.

   [1] Delegation and Authorisations Instrument No. 4 of 2018 (Immigration and Citizenship Services Group) (MHA No. 4 of 2018)

8. Further to the above, the certificate indicates that disclosure of the information contained in the specified document would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would be likely to prejudice the effectiveness of those methods. Having considered the nature of the documents covered by the certificate, the Tribunal formed the view that the certificate provides a valid public interest reason for non-disclosure of the material.

9. For the above reasons, the Tribunal is satisfied that the s 375A certificate has been validly issued. However, as explained to the applicant at the hearing, the Tribunal is nevertheless under obligation to inform her of any information contained in the non-disclosable documents which may be relevant to the issues in the review. In this case, the documents contained serious allegations about a cash for visa arrangement in which the applicant’s nominating employer, an established business in Wagga Wagga, may have been involved. The Tribunal observed that while the information was not directly relevant to the ground of cancellation specified in the s 107 notice, it may be relevant to consideration of the circumstances specified in reg 2.41 of the Act, including other incidents of non-compliance, in the event the Tribunal found that there was non-compliance as described in the s 107 notice.

10. Using the procedure in s 359AA of the Act, the Tribunal set out the particulars of the information, the relevance of the information and the consequence if the Tribunal relied on that information. The applicant sought a short adjournment to speak with her legal representative, after which she requested the Tribunal to grant a period of 14 days to respond. The Tribunal agreed to the request. The Tribunal received several documents, including payslips and bank statements, evidencing receipt of wages by the applicant from the nominating employer and a lease agreement for a property in Wagga Wagga. While some of the transactions in the applicant’s bank statements warranted further enquiries, for example the withdrawal/transfer of the wages on the same day they were received in her bank account, it was not necessary for the Tribunal to pursue this because this did not ultimately become an issue in the review, as the Tribunal found there was no non-compliance as described in the s 107 notice.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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.

14. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

15. 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?

16. 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). The Tribunal notes that the particulars of the s 107 notice were set out in full in the delegate’s decision record.

17. On 6 March 2015, the applicant lodged an application for a Regional Sponsored Migration (Direct Entry) Subclass 187 visa. In the application form she indicated that she was married to Mr Xiaoqin Li (Mr Li). Mr Li was included in the Subclass 187 visa application as a member of the applicant’s family unit.

18. At pages 9 and 10 of the visa application form, the employment history (in the preceding 10 years) for Mr Li was provided. Relevantly, the s 107 notice referred to Mr Li’s claimed employment with Marie Hardware Group Co. Ltd in China as a Customer Service Manager from 1 March 2013 to 26 August 2014 and as a Customer Service Representative from 1 November 2008 to 1 February 2012.

19. The s 107 notice stated that the applicant had declared she read and understood the information provided in the application, that it was complete and correct in every detail and she understands if any fraudulent documents or false or misleading information is provided that the visa may be refused or, if the visa is granted, it may be subsequently cancelled.

20. It was noted that based on the provided information, as well as meeting other relevant criteria, the applicant and Mr Li were granted Subclass 187 visas on 30 July 2015.

21. Following the granting of the applicant’s visa, the Department undertook integrity checks of the information provided in relation to Mr Li’s claimed employment with Marie Hardware Group Co. Ltd. The information obtained during the integrity checks was set out in the s 107 notice as follows:

    An officer of the Department rang Marie Hardware Group Co. Ltd.’s phone number […809] on 11 June 2021. A staff member at the business confirmed that the phone number belongs to Marie Hardware Group Co. Ltd. After checking the company’s records, the staff member stated that there was and is no one employed as a staff member or a Customer Service Manager under the name Xiaoqin LI. The staff member provided that they had access to the full system with current and former employees’ names including employment records dating back to before 2008. The verifying officer repeated the name of the visa holder’s spouse in Chinese, claimed position titles and claimed employment period (from 2008 to 2014) three times; the staff member confirmed that the company has never employed the visa holder’s spouse.

    The verifying officer then dialled the phone number […885] which appears to belong to a General Manager who previously provided a work reference for Mr Li in his Temporary Work (Skilled) (subclass 457) visa application. The staff member who picked up the call confirmed that the company never had any employee named Xiaoqin LI. The call was transferred to a Human Resource (HR) Manager at the company who again stated that the company has never employed a staff member or manager with the surname LI since its establishment, even after the verifying officer repeated the spouse’s Chinese name, claimed position titles and claimed employment period (from 2008 to 2014) three times.

22. In relying on the above information, the delegate who issued the s 107 notice formed the view that the applicant’s spouse, Mr Li, was not employed in the claimed positions of Customer Service Representative or Customer Service Manager with Marie Hardware Group Co. Ltd, and as such incorrect information, in breach of s 101 of the Act, had been provided in the visa application form. The delegate further considered that the incorrect information regarding Mr Li’s employment was contrary to the declaration provided by the applicant on the form that she had provided complete, correct and up-to-date information in her visa application.

    Response to the notice

23. In the response to the s 107 notice, the applicant’s representative provided written submissions to the Department, together with several supporting documents. The documents included a spreadsheet showing entries for wages and leave as evidence of Mr Li’s employment at Marie Hardware Group and photographs of Mr Li with colleagues at the company’s business premises.

24. In written submissions, the representative queried whether telephone calls can be considered evidence in the absence of a record of the conversations (transcript or audio recording) between the integrity officers and persons with whom they spoke. It was submitted that the integrity officer did not provide a copy of the employment reference to the author to verify the document and its content.

25. Also provided was a document entitled ‘Declaration’, dated 17 August 2021, from Ms Yanbing Zhu, the General Manager of Marie Hardware Group Co. Ltd in which she states the following:

    ·On 11 June 2021, the person who answered the call from the Department was Ye Yinting, a front desk staff member at the company since 2019. The dialled phone number was …809, which is the company’s front desk phone number. Ye Yinting said that the officer asked her, in Mandarin, ‘if there was once an employee named “Li Xiaoqin” at the company without stating whether “Li Xiaoqin” was a male or female using “Mr” or “Ms”’.

    ·In Mandarin, every character has four different tones, and the name ‘Li Xiaoqin’ can be many different characters with different meanings in China. When Ms Ye heard the name of ‘Li Xiaoqin’, her first impression was that it was a woman’s name.

    ·Ye Yinting denied that the caller asked her to check the records of ‘Li Xiaoqin’ through the company’s system because she did not have the authority to check the company’s employee records as she was a front desk staff member. Ye Yinting simply read the roster of current and resigned personnel for the past one to two years and informed the caller that there is no such person as ‘Li Xiaoqin’.

    ·On the same day, the person who picked up the call to the number …885 was Chen Meimei, a salesperson who joined the company in 2018. Chen Meimei provided a similar statement to Ye Yinting’s, which indicated that the caller who claimed to be an employee of the Australian Embassy enquired about ‘Li Xiaoqin’ without stating if ‘Li Xiaoqin’ was a male or a female using ‘Mr’ or ‘Ms’. She states that she checked with her colleague, Zhao Yaniuan, who thought the same and said ‘No’.

    ·These employees had misunderstood the characters used due to pronunciation differences between Mandarin and Cantonese, however in Pinyin, which is based on Mandarin, they are both spelt exactly the same – ‘Li’ – which led to the misunderstanding as to whether the officer was referring to a male or female.

    ·The staff members who spoke to the officer also found it (the phone enquiry) strange, and all of them had agreed that it was a fraudulent call because they concluded that if the Australian Embassy, a government agency, wants to investigate the employment history of a resigned employee, they would visit the company in person with a formal letter or contact the person who is authorised for accessing the human resources records and in charge of the company, instead of simply making telephone calls to the front desk.

    ·Due to the promotion of anti-phone-scams activities [sic] from Guangdong province, the three staff members answered the phone call in a perfunctory manner and they wanted to end the conversation as soon as possible so as not to be entangled by scammers.

    ·Authorisation to access the company’s personnel records was not given to all staff members, as such, the telephone investigation would have failed to obtain true and reliable information.

    ·Xiaoqin Li was employed as a Customer Service Representative from November 2008 to February 2012 and as a Customer Service Manager from March 2013 to August 2014 at the company.

26. On review, the Tribunal received submissions from the representative, together with copies of documents relevant to Mr Li’s claimed employment with Marie Hardware Group. The representative took issue with the checks conducted by departmental officers, stating that the officers had not identified (by name) the staff members they spoke to during the calls and that the employment reference had not been verified with the person who issued it.

27. Mr Li appeared before the Tribunal by video from the business premises of Marie Hardware Group. The HR Manager (Ms Zhao) and General Manager (Ms Zhu) of Marie Hardware Group also appeared from the same location. Mr Li gave evidence regarding his employment at the Marie Hardware Group, he said he commenced working there in 2008 as a Customer Service Representative, after which he became a Customer Service Manager. He provided details of his position, wages and method of payment. When asked if he had any independent contemporaneous evidence of his claimed employment between 2008 and 2014, he said it was a long time ago and he had not kept his bank records, though he believes they may have been provided with the Subclass 457 visa application. After the hearing, the Tribunal issued a summons to obtain a copy of Mr Li’s Subclass 457 visa application.

28. In response to the concern about the staff at Marie Hardware Group indicating they did not know him, Mr Li reiterated some of the reasons given by Ms Zhu in her letter. He said the officers had incorrectly pronounced his name and the staff thought it was a scam call and did not want to answer any further questions asked by the caller.

29. Ms Zhao and Ms Zhu also gave evidence regarding Mr Li’s employment. Their evidence was entirely consistent with that given by Mr Li, though the Tribunal did have some concern that they were appearing from the same location as Mr Li and may have overheard the evidence given by Mr Li.

30. After the hearing, the Tribunal received a copy of Mr Li’s Subclass 457 visa application lodged on 28 February 2013. In that application, Mr Li included the applicant as his spouse. In relation to his past work experience, he indicated that he worked for Marie Hardware Group as a Customer Service Representative from 1 November 2008 to 1 February 2012, and as a Customer Service Manager from January 2013 until the time of the visa application in February 2013. A work certificate, business cards and other supporting documents of the applicant’s employment were included with the Subclass 457 visa application.

31. Of significance was the outcome of integrity checks conducted by the Department in relation to the applicant’s claimed work experience on 19 March 2013. Departmental records indicate that an officer of the Department contacted Mr Li’s employer (Marie Hardware Group Co. Ltd) and confirmed that he was working there at the time. Records indicate that Mr Li was contacted at his place of work and was asked by the officer to provide information regarding his job and duties. It was recorded that Mr Li stated his duties included providing before-sales and after-sales service to clients, dealing with complaints, accompanying the boss to meet important clients, and working as the interpreter. He said he was also responsible for recruiting and training new staff in the department and managing and maintaining the network platform of the company’s client service system and maintaining regular contact with clients.

32. In refusing to grant Mr Li the Subclass 457 visa, the delegate was concerned that Mr Li was not undertaking the higher level tasks of the position of Customer Service Manager, including planning, administering and reviewing customer services and after-sales services and maintaining sound customer relations as defined in the ANZSCO for the occupation of Customer Service Manager. However, the delegate indicated that they were satisfied, on the basis of the verification checks conducted by the overseas post, that Mr Li was working for Marie Hardware Group.

1. The Tribunal observes that while Mr Li’s claims about working as a Customer Service Representative for Marie Hardware Group between November 2008 and February 2012 were consistent, there was a discrepancy between the information in the Subclass 457 visa application and the Subclass 187 visa application regarding the date on which Mr Li commenced in the position of Customer Service Manager of about two months; in the Subclass 457 visa application he indicated that he commenced in the position in January 2013, whereas in the Subclass 187 visa application it was recorded as March 2013. The Tribunal considers that, for the purposes of the present case, this discrepancy would be significant if it formed part of information relied on by the delegate (who issued the s 107 notice) for the purpose of establishing that there was the non-compliance as described in the s 107 notice.

2. In carefully considering the particulars of the s 107 notice there is no suggestion that the non-compliance, as considered by the delegate who issued it, was in respect of the discrepancy between the dates of Mr Li’s claimed employment in the position of Customer Service Manager with Marie Hardware Group. The Tribunal observes that the non-compliance described by the delegate in the s 107 notice was in respect of the entirety of Mr Li’s claims of employment with Marie Hardware Group. The delegate formed the view, based on the verification checks conducted in June 2021, that Mr Li had never worked for Marie Hardware Group in any capacity, and that incorrect information had been provided in the Subclass 187 visa application form about Mr Li having been employed in the claimed positions by Marie Hardware Group between 2008 and 2014.

3. The Tribunal considers itself bound by the particulars of the s 107 notice and so the issue in this case is whether Mr Li had worked in the claimed positions for Marie Hardware Group Co. Ltd between 2008 and 2014. In considering all the evidence before it, the Tribunal is satisfied that there is reliable and contemporaneous evidence to substantiate Mr Li’s claims of employment, being the verification checks conducted by the Department’s overseas post on 19 March 2013. The information obtained by departmental officers in 2013 confirmed that Mr Li was working for Marie Hardware Group at the time. In fact, Mr Li was present at the company’s business premises at the time the officer called the landline number to verify Mr Li’s employment. Furthermore, the evidence obtained from Mr Li regarding his position indicates that he was involved in performing tasks consistent with a customer service position.

4. Whether the position can be classified as a Customer Service Manager as described in ANZSCO is not a consideration that arises for the purposes of this review. Assessment of the nature of the position and whether it aligned with the tasks in ANZSCO was relevant to the Subclass 457 visa, however, there was no suggestion in the s 107 notice that incorrect information was provided in the Subclass 187 visa application in respect of the position or the description of duties.

5. In relation to the information obtained by officers during the verification checks conducted in June 2021, the Tribunal makes the following observations. Firstly, those checks were conducted some seven years after Mr Li had left the employment of Marie Hardware Group. Secondly, the two front desk employees whom the officers spoke to had commenced employment with the business in 2018 and 2019, which was long after Mr Li had left the company. The Tribunal also accepts the General Manager’s evidence that front desk staff do not have access to the records of all the employees (past and present) who had been employed by the company and considers it entirely plausible that when checking the records, the staff member was referring to the roster of current and recently resigned employees. It is also plausible that staff were unsure about the gender of the person about whom departmental officers had called and were concerned that the call may not have been from a legitimate source and so did not want to engage with the caller. Given all these concerns, the Tribunal gives no weight to the information obtained during the verification checks conducted in June 2021.

6. The oral evidence obtained at the hearing from Mr Li and the witnesses regarding Mr Li’s claimed employment with Marie Hardware Group was consistent with and corroborated by the contemporaneous evidence contained in the Subclass 457 visa application. Having considered all the evidence before it, the Tribunal is satisfied that Mr Li had worked in customer service positions for Marie Hardware Group between 2008 and 2014. It follows that no incorrect information about Mr Li’s employment, as described in the s 107 notice, had been provided in the Subclass 187 visa application.

7. For the above reasons, the Tribunal finds that there was no non-compliance with s 101 by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

DECISION

1. 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.

   R. Skaros

   
   

   Senior Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

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

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

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

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

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

   97Interpretation

   In this Subdivision:

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

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

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

   98Completion of visa application

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

   99Information is answer

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

   100Incorrect answers

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

   101Visa applications to be correct

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

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   103Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

   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.