Diamond (Migration)

[2022] AATA 3463

Diamond (Migration) [2022] AATA 3463 (13 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stephen Eamonn Diamond

CASE NUMBER:  2014153

HOME AFFAIRS REFERENCE(S):          BCC2020/1758814

MEMBER:Christine Kannis

DATE:13 September 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 13 September 2022 at 7:00am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – incorrect information in a previous visa application – specified work in regional Australia – employer reported no record of applicant – applicant underwent surgery – de facto relationship registered in Australia – impact of the COVID19 pandemic – financial and emotional hardship – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 197, 198, 362
Migration Regulations 1994, r 2.41

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 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that he had provided incorrect information in his Subclass 417 Working Holiday (Extension) visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.    On 4 August 2022 the Tribunal sent the applicant an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 12 September 2022 at 11.00 am (NSW time). The Invitation informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The Invitation advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The Invitation also requested the applicant provide all documents on which he intended to rely to support his case by 5 September 2022.

1. The applicant did not respond to the Invitation to Attend a Hearing.

5.    On 2 September 2022 the Tribunal sent a reminder which included the following:

The Tribunal is yet to receive a hearing response and statements from the applicants setting out the evidence they will give during hearing. Please ensure to comply with this direction as outlined in the hearing invitation and ensure that this is received by close of business 5 September 2022.

1. The applicant did not respond to the letter dated 2 September 2022 and did not provide any documents by 5 September 2022 or at any time prior to the scheduled hearing.

2. On 5 September 2022 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review. 

3. On 8 September 2022 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review.  On this occasion the delivery of the SMS failed notwithstanding it was successfully sent to the same number as the SMS hearing reminders on 5 September 2022 and 9 September 2022.

4. On 9 September 2022 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review. 

5. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

6. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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 dated 3 August 2020  issued under s 107 complied with the statutory requirements.

    Was there non-compliance as described in the s 107 notice?

11. The breach of s.101(b) relates to a Subclass 417 Working Holiday (Extension) visa the applicant previously held that was granted on 26 September 2018.  Section 107A of the Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.

12. Section 99 of the Act provides that any information 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 s 100, paragraphs 101(b) and 102(b) and ss 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.   

13. 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 sections 101(b) in the following respects:

    ·The Working Holiday (Extension) visa application  form included the following questions and answers:

    Q:Have you undertaken specified work in regional Australia for a total of 3 months?

    A:        Yes

    Q:       If Yes, in which industry did this mainly occur?

    A:        Agriculture, Forestry and Fishing

    Q:I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa

    A: Yes

    • The application form included a Details of specified work undertaken section and in response the applicant provided the following information:

    ABN  69150112413

    Postcode   2871

    Start date   11 February 2018

    End date   11 May 2018

19.   On 15 June 2020 the Department was advised by Workcontrol Pty Ltd, the business registered under ABN 69150112413, that  the applicant had never worked at their business.

Response to the s 107 notice

1. On 17 August 2020 the applicant responded to the s 107 notice in a written submission from his representative. The submission referred to the information which had been set out in a statutory declaration dated 14 August 2020 made by the applicant. In the statutory declaration the applicant said:

   ·He provided incorrect information in his Working Holiday (Extension) visa application.

   ·He arrived in Australia on 29 December 2017 on a Working Holiday visa.

   ·In February 2018 he injured his knew while playing football and underwent surgery on 31 May 2018. On 16 June 2018 he returned to Ireland and stayed with his parents during the recovery period.

   ·His recovery was slower than expected and he was prescribed anti-anxiety medication for anxiety when he was in Ireland.

   ·On 25 September 2018 he travelled to Sydney for his post-surgery medical review on 28 September 2018. His next review was scheduled for April 2019.

   ·At this time he was aware that he had not completed the required regional work. When he travelled to Australia in September 2018, he had intended to complete the work but the thought of leaving the city to work in a regional area with poorer medical facilities and the potential of injuring his knee when working began to panic him.

   ·He had also met his partner, a girl he had known in Ireland. She was providing him with mental support throughout the bouts of depression and anxiety he was experiencing. He felt extremely anxious and upset at the thought of leaving her.

   ·In this poor mental state and without fully considering the consequences, he provided false information regarding the regional work he had completed in his new visa application. He was not aware of any alternative arrangements that may have been available to him to remain in Australia.

   ·His partner applied for a Student visa in 2019 to undertake a Human Resources course with a view to working in school management when she returns to Ireland.  He applied to stay as her de facto partner so he could support her through her study. They do not intend to stay after her Student visa ceases in March 2021. They intend returning to Ireland to start a family. They are in a de facto relationship registered in New South Wales. They share a home and finances and provide each other with emotional support.

   ·It would be devastating to him and his partner if he was now forced to leave Australia. His partner does not feel she could complete her studies in Australia because she does not feel she could be here without him. It breaks his heart that his thoughtless actions might result in him leaving his partner or being the reason she must abandon her studies.

   ·If he is able to remain in Australia, he would spend his time giving back to Australia by undertaking community work.

   ·The COVID-19 pandemic means that it will be difficult and costly for he and his partner to lose the bond on their apartment, fly to Ireland at inflated flight costs and pay to isolate. The cost of breaking their lease, the term of which is 11 February 2020 to 8 February 2021, would be $2,400.

   ·He and his partner are experiencing stress and anxiety at the thought of having to leave Australia in the middle of a pandemic.

   ·He does not think he can put into words the immense remorse, shame and disgust he feels for his actions in providing false information in his visa application.

   ·His mental health is much improved over the past year.

   ·He has always been a good person of upstanding moral character with no criminal record.

   ·If it is possible, he wishes to remain in Australia until 15 March 2021 when his partner’s study ends and their visa ceases. This will allow his partner to complete her study and it is likely that travel will be safer by that time.

2. At the time of providing the response to the s 107 notice, the applicant also provided:

   ·Written statement dated 14 August 2020 made by the applicant’s partner setting out the development of their relationship, her application for a Student visa and her future plans with the applicant. The information she provided was not materially different to the information provided by the applicant in his statutory declaration.

   ·A New South Wales Relationship Certificate dated 11 December 2019.

   ·Standard Form Residential Tenancy Agreement showing the applicant and his partner as tenants for a term from 11 February 2020 to 8 February 2021.

   ·Commonwealth Bank statements for an account in the joint names of the applicant and his partner.

   ·Confirmation of Enrolment created on 10 December 2019 for the applicant’s partner for a Diploma of Human Resources Management course ending on 19 December 2020.

   ·Medical evidence in relation to the applicant’s surgery dated in 2018 and 2019.

3. In the applicant’s statutory declaration dated 14 August 2020 , he conceded that he provided incorrect information in his Working Holiday visa application regarding work he had undertaken. The written submission from the applicant’s representative stated that the applicant accepts he provided incorrect information in his Working Holiday (Extension) visa application.

4. Based on the applicant’s concession his statutory declaration and the representative’s written submission, the Tribunal finds that the applicant provided incorrect information in his Working Holiday (Extension) visa application by providing an answer that he had undertaken 3 months work in regional Australia from 11 February 2018 to 11 May 2018 and the employer’s ABN was 69150112413.

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

   Should the visa be cancelled?

6. 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).

7. In exercising this power, the Tribunal must consider the applicant’s response to the s 107 notice and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations).

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

9. The Tribunal has taken the reg 2.41 prescribed circumstances as well as any other relevant facts and matters, including the applicant’s responses to the s 107 notice, into account when considering the discretion.

   Prescribed circumstances

   The correct information

10. The Tribunal correct information at the time of application was that the applicant had not worked for at least 3 months in specified work in regional Australia during the period stated in the application form  for an employer with ABN 69150112413.

11. The correct information was not provided. This is a significant issue which weighs in favour ofcancellation.

    The content of the genuine document (if any)

12. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information

13. Clause 417.211(5) requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa and the total period of the work carried out is, or is equivalent to, at least 3 months full-time work.

14. The Tribunal finds that the assessment of the applicant’s previous employment in regional Australia was central to the assessment of his eligibility for the Working Holiday (Extension) visa. The Tribunal finds that the decision to grant the Working Holiday (Extension) visa was based, wholly or partly, on incorrect information relating to the applicant’s employment in regional Australia. This is a significant issue which weighs in favour ofcancellation.

    The circumstances in which the non-compliance occurred

15. The applicant’s contention is that he did not complete the 3 months regional work as claimed in his application, due to an injury he sustained in February 2018 and the consequences of that injury on his physical and mental health. Evidence of the injury and surgery were provided in support of this contention however no supporting evidence regarding the applicant’s anxiety and depression was provided.    

16. The applicant also contended that the non-compliance occurred due to his lack of knowledge about alternative options that would have allowed him to remain in Australia. As the applicant failed to attend the hearing, the Tribunal was unable to question him regarding attempts and enquiries he may have made about options for remaining in Australia. In the Tribunal’s view it was the responsibility of the applicant to ascertain whether there were such options in his circumstances.

17. In his statutory declaration the applicant stated he is remorseful for providing incorrect information. However the fact remains that if the applicant had provided correct information in his application, the visa would almost certainly not have been granted.  The circumstances in which the non-compliance occurred are not accepted as justifying the non-compliance.

18. The Tribunal accepts that the applicant’s injury was a factor outside his control, however his provision of incorrect information was deliberate and fraudulent in order to gain an advantage to remain in Australia. It shows a blatant disregard for Australian immigration laws and the Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.

    The present circumstances of the visa holder

19. In his statutory declaration the applicant stated he is a secondary visa holder on his partner’s Student visa and is in Australia to support his partner through her last six months of study, before they return to Ireland. He referred to the financial costs of ending the lease on his apartment before expiry and the additional costs of travel related to the COVID -19 pandemic. The term of the lease ended in February 2021 and travel restrictions relating to COVID-19 have now eased.

20. As the applicant failed to attend the hearing the Tribunal has no information regarding his present circumstances. Accordingly the Tribunal gives this factor no weight in favour of its discretion to cancel the visa or in favour against cancellation of 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

21. The Tribunal notes the delegate's finding that there was information indicating that subsequent to the s 107 notice being issued the applicant has not complied with his obligations under Subdivision C of Division 3 Part 2 of the Act. The Tribunal accepts this and therefore accords this factor some weight in favour of not cancelling the applicant's visa.

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

22. The Tribunal notes the delegate's finding that there was no evidence of any other non-compliance by the applicant known to the Department. The Tribunal accepts that there have been no other known instances of non-compliance by the visa holder and gives this factor some weight in favour of its discretion to not cancel the visa.

    The time that has elapsed since the non-compliance

23. The Tribunal accepts that it is now approximately 4 years since the applicant was granted his Subclass 417 Working Holiday (Extension) visa on the (incorrect) basis that he had completed the required work in regional Australia. The Tribunal considers that this is a reasonably significant period. It therefore accords this factor some weight in favour of not cancelling his visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

24. There is no evidence before the Tribunal showing the applicant has been convicted of any other breaches of the law or sanctions imposed.

1. The Tribunal gives this some weight in favour of it not exercising its discretion to cancel the visa.

   Any contribution made by the holder to the community

2. In his statutory declaration the applicant stated that if were permitted to remain in Australia, he would spend his time giving back to Australia by undertaking community work.

3. As the applicant failed to attend the hearing the Tribunal has no information regarding any contribution he may have made to the community. Accordingly the Tribunal gives this factor no weight in favour of its discretion to cancel the visa or in favour against cancellation of the visa.

4. The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.

   Other considerations

5. As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109.

   Whether there would be consequential cancellations under s 140

6. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled. Accordingly the Tribunal gives this factor no weight in favour of its discretion to cancel the visa or in favour against cancellation of the visa.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

7. If the applicant’s visa is cancelled, he will be an unlawful non-citizen and liable for detention under s 189 of the Act and removal under s 198 of the Act.  Under s 197C of the Act, for the purposes of removal under s 198 it is irrelevant whether Australia has non-refoulement obligations or whether there has been an assessment of Australia’s non-refoulement obligations. 

8. The applicant may be subject to s 48 of the Act preventing him from applying for further visas, he may not be permitted to work if granted a temporary visa for a specified period and he may be held in immigration detention.

9. Whilst these are all serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation. 

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

10. The applicant is a citizen of Ireland and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations. There is no suggestion that the interests of any children in Australia may be adversely affected by the visa cancellation.

11. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

12. In his statutory declaration the applicant referred to financial hardship and emotional hardship that may arise from cancellation of the visa. As noted, it is likely that the financial hardship due to early termination of a residential lease and due to the COVID-19 pandemic no longer exist. The emotional hardship was stated to result from the likely separation of the applicant and his partner for a period of six months due to her ending her study in March 2021 or the applicant’s partner having to cease her study before completion because she could not remain in Australia without the applicant.

13. As the applicant’s partner’s study was due to end in March 2021 and no other hardship was contended, the Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.

    Conclusion on the exercise of the discretion

14. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101(b) of the Act.

15. The Tribunal acknowledges that 4 years have passed since the non-compliance. The Tribunal accepts that at the time of the delegate’s decision there been no other known instances of non-compliance. The Tribunal accepts that there are no other known breaches of the law. These are factors that suggest that the visa should not be cancelled.

16. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was made without the correct information because the applicant knowingly provided incorrect information in his visa application in order to remain in Australia.

17. As the applicant failed to attend the hearing the Tribunal is not aware of any contribution to the community he may have made since the delegate’s decision.

18. There are no consequential cancellations. The Tribunal accepts that if the applicant’svisa is cancelled, and unless he is granted another visa, he may be subject to detention, although he may be eligible to apply for othervisas.

19. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.  

20. As the applicant failed to attend the hearing the Tribunal is not aware of any hardship that may be caused to the applicant if the visa is cancelled. The hardship contended in his response to the s 107 notice was due to end in March 2021.

21. 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

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Christine Kannis
    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.