GATTNER (Migration)

[2021] AATA 4026

GATTNER (Migration) [2021] AATA 4026 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dariusz Slawomir GATTNER
Mrs Ewa Wanda GATTNER
Mr Alexander Dariusz GATTNER
Miss Gaia Deva GATTNER

CASE NUMBER:  2106976

HOME AFFAIRS REFERENCE(S):          BCC2020/1575046

MEMBER:Andrew McLean Williams

DATE:5 October 2021

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 05 October 2021 at 10:29am

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) Visa – subclass 186 – applicant is subject to outstanding criminal charges in Poland – applicant had no awareness of these charges –  hard working and decent members of the community – best interests of the children – decision under review set aside

LEGISLATION
Migration Act 1958, ss 100, 101, 104, 109, 140

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 first-named Applicant’s Subclass 186 - Employer Nomination Scheme visa, under s.109(1) of the Migration Act 1958 (‘the Act’).

2. The Delegate cancelled the visa on the basis that the Applicant had not complied with s.101(b) of the Act, by his having incorrectly stated in (a), his Employer Nomination Scheme visa application submitted to the Department on 24 January 2019; and (b), his application for a Temporary Work (Skilled) visa submitted to the Department on 22 April 2016 that he had not ever been the subject of an overseas arrest warrant, or an Interpol notice.

3. Subsequently, the Department became aware that the Applicant does have outstanding arrest warrants in Poland, and is the subject of an Interpol notice. The issue in the present case is therefore whether the cancellation ground in s.101(b) of the Act is made out, and, if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction the only decision now before the Tribunal is that with respect to the first-named Applicant Mr Dariusz Gattner (‘the Applicant’). The other visas, as were held by family members, were each automatically cancelled, in consequence of the cancellation of the Applicant’s visa. In other words, the visas held by the other Applicants as family members were cancelled not by reason of a ‘decision’, but by reason of the operation of s.140(1) of the Act. As no ‘decision’ was involved in these other visa cancellations, the Tribunal has no jurisdiction with respect to the other family members.

5. The Applicants appeared before the Tribunal on 28 September 2021 to give evidence. The Applicants were represented in relation to the review by their solicitor, Ms Victoria Lenton, of Lenton Migration Law & Consultancy. Ms Lenton also attended the Tribunal hearing in Brisbane on 28 September 2021, and had arranged for the filing of detailed written submissions (those dated 24 September 2021), together with supporting documentary evidence, prior to the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with any of sections 101, 102, 103, 104, 105, or 107(2) of the Act. Broadly speaking, these provisions require non-citizens to provide correct information in their visa applications and on their passenger cards; not to provide ‘bogus’ documents (as defined); and to notify the Department of any incorrect information of which they become aware, as well as of any relevant changes in their circumstances after the date of their original provision of that information.

8. 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, thereby providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, then the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

9. In her oral submissions at the commencement of the Tribunal hearing on 28 September 2021 Ms Lenton made clear that the Applicant had been sufficiently notified as to the grounds for proposed visa cancellation, in accordance with the requirements of s.107, notwithstanding some issues having been earlier raised, by the Applicant’s previous authorised representative. These grounds were articulated by the Department by means of two (2) Notices of Intention to Consider Termination (‘NOICC’), provided by the Department to the Applicant in accordance with s.107 of the Act, on 8 March, and 20 April 2021.

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 issued under s.107 complies with the statutory requirements.

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

11. The non-compliance identified and particularised in the s.107 notices was non-compliance with s.101(b) of the Act, which provides that a non-citizen completing a visa application must do so in such a way so that ‘no incorrect answers are given or provided’. Section 100 of the Act then provides that for the purposes of s.101(b) an answer is taken to be incorrect even in those circumstances wherein the person who gives or provides the information does not know that it was incorrect when given.

12. Non-compliance by the Applicant was particularised in the NOICCs as involving the following:

    ·On 24 January 2019, as part of the Applicant’s Employer Nomination Scheme (Subclass 186) visa application, the answer ‘No’ was given in response to the question “Has any applicant ever been the subject of an arrest warrant or Interpol notice?”

    • On 22 April 2016, as part of the Applicant’s Temporary Work (Skilled) (Subclass 457) visa application, the answer ‘No’ was given in response to the question “Has any applicant ever been the subject of an arrest warrant or Interpol notice?”

13. The NOICC contends that the answers particularised were incorrect by reason that an Interpol ‘Red Diffusion’ notice was issued by Polish authorities on 9 March 2016 indicating that the Applicant was wanted for extradition to Poland in relation to offences of ‘maltreatment’. The Applicant and his family had arrived in Australia on 14 November 2014 such that the Applicant had no awareness whatsoever of any outstanding criminal charges in his native Poland, at least not until the fact of his being informed of same by means of his receipt of the NOICCs issued by the Department pursuant to s.107.

14. Subsequently, the Applicant retained a solicitor in Poland, in order to make enquiries of the authorities in relation to these matters on his behalf.  By means of a letter dated 9 September 2021 (now Annexure M to the Applicant’s submissions before the Tribunal dated 24 September 2021), the Polish solicitor was able to ascertain that the Applicant was subject to two (2) outstanding indictments in Poland, alleging the following:

    ·Indictment dated 22 May 2012 (No. III K887/11) ‘Acting for financial gain by using false statements’, a charge arising under article 13 section 1 of the (Polish) Criminal Code, with a request by the prosecution for a 6 month sentence, to be suspended for one year.

    ·Indictment dated 25 February 2015 (No. IV K 41/13) alleging that the Applicant:

    - Between November 2010 and January 2011 in Knurow, the Applicant mislead Marcin Cipold and Jakub Cipold for financial gain (a charge arising under article 286(1) of the (Polish) Criminal Code), with a request from the Prosecution for a custodial sentence of between 6 – 8 months, to be suspended for 2 years;

    - On 9 February 2011 [the Applicant] struck Marcin Cipold with an open hand to the cheek, thereby forcing Marcin Cipold to sign a cheque made out to the Applicant, in alleged breach of article 191(1) of the (Polish) Criminal Code, with a request from the Prosecution for a custodial sentence of 9 months, to be suspended for 3 years;

    - On 9 February 2011 [the Applicant] forced Marcin Cipold to hand over to the Applicant his motor vehicle, in alleged breach of article 286(1) of the (Polish) Criminal Code, with a request from the Prosecution for a custodial sentence of 6 months, to be suspended for 2 years;

    - On 9 February 2011 [the Applicant] forced Marcin Cipold to hand over to the Applicant his motor vehicle [ownership] documents, in alleged breach of article 286(1) of the (Polish) Criminal Code, with a request from the Prosecution for a custodial sentence of 6 months, to be suspended for 2 years.

15. As indicated earlier in these reasons, the Applicant states that he had no awareness of these charges prior to his being alerted to the possibility of same by the Department, and no awareness of any of the details of these charges until he was in receipt of the letter dated 9 September 2021 from his solicitor, in Poland. That letter does however confirm the fact of there being arrest warrants in Poland, and an Interpol notice: each referable to the Applicant, such that the answers given by the Applicant on 22 April 2016 and 24 January 2019 in relation to his visa applications were answers given in breach of s.101(b) of the Act, by reason of the effect of s.100 of the Act.

16. For these reasons, the Tribunal finds that there was an instance of non-compliance with s.101(b) of the Act by the Applicant, in the manner described in the s.107 notice.

    Should the visa be cancelled?

17. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the Applicant under s.107, 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).

18. 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).

19. The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, these are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    · the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

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

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

20. 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.

    The correct information and circumstances in which the non-compliance occurred

21. The correct information is that the Applicant is subject to outstanding criminal charges in Poland, as are now particularised in paragraph 14 (above), of these reasons. 

22. In his oral evidence before the Tribunal, as well as previously in statutory declarations provided by both the Applicant and his wife on 21 September 2021, efforts have been made to explain the circumstances and context giving rise to these arrest warrants.  The Tribunal accepts the accounts given by Mr and Mrs Gattner as candid, and truthful.  The Applicant admits the circumstances of the indictment dated 22 May 2012 yet contests those now alleged in the indictment dated 25 February 2015. 

23. The Applicant grew up in Knurow, Poland and was a childhood friend with one Marcin Cipold.  In 2010, the Applicant and his wife were operating a small licensed premises, and were encouraged by Marcin Cipold at that juncture to also join with him in the opening of a pawnshop and licensed sports betting business.  In order to do that, the Applicant needed to obtain a loan in order to have sufficient funds to contribute towards the establishment of that venture.  The Applicant approached a private lending institution and sought to borrow the equivalent of approximately AUD $14,000.  The loan documentation process required that prospective lenders demonstrate at least a six-month history of up-to-date contributions to Polish social security, (contributions the equivalent of superannuation).  Lacking sufficient documentary proof of that, the Applicant made an oral declaration to the lending institution that he was up-to-date with his contributions.  Subsequently, this was not able to be confirmed by the lending institution, such that the Applicant’s loan application was refused.  Unbeknown to the Applicant until as recently as 9 September 2021, this also resulted in the commencement of criminal proceedings against the Applicant, relating to the provision by the Applicant of a false declaration.  In his statutory declaration dated 21 September 2021, the Applicant said, in part:  

    “50. I take full responsibility for doing this, and I sincerely regret making that mistake.  It was not the right thing to do.  At the time, I felt under a significant financial pressure at that time, and I felt like I had a lot of pressure from my business partner, Marcin, and I tried to cut corners”.

24. The Applicant denies the circumstances and charges particularised in the second indictment, that dated 25 February 2015.  The Applicant says that he was still being pressured by his friend Marcin Cipold to make an investment in the pawnshop and sports betting business proposal.  The Applicant says that in about late 2010 he and his wife gave Marcin Cipold PLN45,000 (the equivalent of approximately $AUD 15,839) for specified business establishment expenses, yet it soon became clear that Marcin Cipold had merely taken that money for himself, and had not expended it in the manner that had been proposed and agreed.  On or about 9 February 2011, there was a meeting between the Applicant and his wife and Marcin Cipold to discuss the misuse of the money, and these discussions did become heated.  Both the Applicant and the Applicant’s wife say that Marcin Cipold slapped the Applicant, whereafter the Applicant responded by also slapping Marcin Cipold.  The Applicant’s wife says that she then managed to calm the two men down, and to agree to discuss an arrangement for repayment of the debt.  Both the Applicant and his wife informed the Tribunal that Marcin Cipold then agreed to hand over his car (an Audi Sedan) and relevant registration documents referable to that vehicle in part re-payment of some of the monies that had been misappropriated by Marcin Cipold, and that Marcin Ciplod further agreed to provide a post-dated cheque for the balance, on the proviso of the Applicant agreeing to forego presenting that cheque for a period of six months, in order to allow Marcin Cipold enough time to raise the funds to honour the cheque, upon its eventual presentation.  The Applicant says that he re-contacted Marcin Cipold after the agreed period and Mr Cipold became evasive about payment and was obviously seeking to avoid him.  At that stage the Applicant says that he went to the police to make an official complaint about Mr Marcin Cipold, yet says that the local police merely laughed at him before also informing him that Marcin Cipold ‘came from a well-connected local family’, with ‘connections within the prosecutor’s office and the police force’, such that the local police would take no action, to investigate the complaint made by the Applicant.  The Applicant informed the Tribunal in his oral evidence that he then went to the police in a larger city nearby, yet was again turned away, with the city police telling the Applicant that this was ‘a local matter’.  The Applicant says that, by mid 2012, he and his wife had given up entirely on the possibility of getting their money back from Marcin Cipold.  The Applicant and his family then focussed their efforts on a moved to Australia, made in November 2014.  The Applicant denies the allegations in the indictment dated 25 February 2015, and says that the allegations are a factual distortion of what really happened on 9 February 2012, and the true circumstances are those as are now summarised, in these reasons for decision. 

    Whether the decision to grant the visa was based wholly or partly on incorrect information

25. Although the information contained in the Applicant’s visa applications was unwittingly false, it is by no means conclusive that had the correct information been known by the Department at the time of issue of the Applicant’s original 457 and subsequent 186 visas that this would necessarily have resulted in a refusal to issue either of those visas. Given the requested penalties specified in the Polish indictments, and what appear as reasonable prospects for the Applicant securing an acquittal in respect of the charges arising in the second of those indictments, it does not seem likely - in the theoretical event of the Applicant’s conviction - that this would result in the Applicant acquiring ‘a substantial criminal record’ for purposes of s.501(7) of the Act.

    The present circumstances of the visa holder.

26. The Applicant and his wife, and children, have now been resident full-time in Australia since November 2014, a period of almost seven years.  They have not returned to Poland during that time.  The Applicant is a Welder (First Class) with extensive experience in that occupation, one that is included on the national list of Medium and Long Term Strategic Skills shortages (Legislative Instrument LIN 19/048).  The Applicant is also part way through further training in order to qualify as a vocational training instructor.  The Applicant recently lost his employment working for JMM Auto Service (a firm of automotive mechanics) in consequence of Covid-19 and has also had to temporarily suspend his further part-time studies in vocational training because of that.  The Applicant’s wife Mrs Ewa Gattner works as a freelance photographer and designer.  Recently - and principally because of the Applicant’s loss of employment in consequence of Covid-19 - Mr and Mrs Gattner have embarked on a venture to establish a furniture design and construction business ‘EDG Design’ (as trading name for the EDG Family Trust) designing and manufacturing coffee tables and dining tables, predominantly those with concrete tops.  This endeavour started as a hobby that has more recently been commercialised by Mr and Mrs gattner after their realising that there is a market demand for this particular style of furniture.  Mr Gattner informed the Tribunal that he and his wife have already fulfilled several orders as a home-based ‘micro enterprise’ and have many more orders pending, such that they are now on the cusp of renting commercial premises and offering employment to up to three staff.   

27. The Applicant’s son, Alexander, is in year 11, and his daughter, Gaia, is in year six.  Alexander has undertaken the majority of his schooling in Australia and Gaia has been educated entirely in the Australian educational system.  Neither Alexander nor Gaia are now sufficiently literate in Polish to be able to realistically resume their education in that country.  Alexander and Gaia are also active in a range of community pursuits and sports and Alexander informed the Tribunal that he wishes to go on to University and study law with a view to his eventually becoming a criminal lawyer. A National Police Certificate from the Australian Federal Police dated 16 September 2021 reveals there to be no disclosable court outcomes in Australia recorded against the Applicant.  A range of personal and employment references reveal the Applicant and his wife to be hard working and decent members of the community.

    The subsequent behaviour of the Applicant regarding his obligations under Subdivision C of Division 3 of Part 2 of the Act.

1. There is no information or other evidence before the Tribunal to suggest that the Applicant has breached any other obligations under Subdivision C of Division 3 of Part 2 of the Act.

   The time that has elapsed since the non-compliance

2. Non-compliance arose at the time of the visa applications, being on 22 April 2016 and on 24 January 2019.  The Tribunal accepts that the non-compliance arose in circumstances wherein the Applicant had no knowledge of the true state of affairs in Poland, and as not even aware that charges had been preferred by the Polish authorities against him, and that the specific matters alleged in the outstanding arrest warrants transpired nearly ten years ago.

   Whether there would be consequential cancellations under s.140.

3. Cancellation of the Applicant’s Subclass 186 visa has the automatic consequence that the visas held by his wife, son, and daughter are now also subject to automatic cancellation, yet in circumstances wherein there is no suggestion of wrongdoing on any of their parts, and in circumstances wherein the children in particular have lived the predominant portion of their young lives in this country and wherein they have only limited - and increasingly distant - connections with Poland.  The Tribunal accepts this to be a factor that now militates against exercise of the discretion to cancel the Applicant’s visa.

   Best interests of the children.

4. In accordance with the requirements arising under Article 3(1) of the United Nations Convention on the Rights of the Child the Tribunal accepts that the best interests of the Applicant’s children Alexander and Gaia must be treated as a primary consideration.  In the event that the Applicant’s visa cancellation were to be confirmed by the Tribunal, the Applicant’s entire family would be required to return to Poland.  This would have an entirely deleterious effect on the education of Alexander and Gaia who are no longer literate in Polish, and who are each unfamiliar with the educational system in that country.  Each of Alexander and Gaia have established social networks and friendships in this country, and these would not now be easily replicated in Poland.  In addition, Alexander identifies as bisexual, in circumstances wherein there is acceptable evidence[1] before the Tribunal of recent confirmed cases of violence and discrimination towards LGBTI persons in Poland, seemingly condoned by the ruling Law and Justice Party in that country.

   [1] Annexures Q & R to the Applicant’s submissions dated 24 September 2021

   Degree of hardship to other family members.

5. The Applicant and his family have no assets or property in Poland and now have limited financial resources due to job losses caused by Covid-19 and the current efforts by the Applicant and his wife to establish a new enterprise in order that they might be self-employed in the future.  The Applicant and his family are assessed as being likely to confront significant hardship in Poland as a consequence of Alexander’s professed sexuality and because of the Applicant’s Germanic ancestry and family’s military connections, in circumstances wherein there is evidence before the Tribunal of the Applicant  having previously been the subject of regular discrimination on these specific grounds, prior to the family originally departing Poland for Australia, in 2014.

   Conclusions

6. 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. Yet having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

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

8. The Tribunal has no jurisdiction with respect to the other applicants.

   Andrew McLean Williams
   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.