Ge (Migration)

[2021] AATA 460

Ge (Migration) [2021] AATA 460 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jianfeng Ge

CASE NUMBER:  2011962

HOME AFFAIRS REFERENCE(S):          BCC2018/4057211

MEMBER:Mark O'Loughlin

DATE:21 January 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 21 January 2021 at 3:00pm

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 Skilled – Regional (Provisional) – incorrect answers with the visa application – English language tests results – English test taken by another person – impact on employer’s business – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 97 – 105, 107 – 109, 140
Migration Regulations 1994, Schedule 2, cl 489.223; Schedule 4 Public Interest Criterion 4020; 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 489 - Skilled - Regional (Provisional) 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 sections 101(b) and 103 of the Act because he had falsely claimed in his visa application that he had sat an English language test and he had presented as his own a test result that was not issued in respect of him. 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. The applicant appeared before the Tribunal on 10 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr. Liu Shuai and Mr. Ningshen Zhao. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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.

7. 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.

   Did the notice comply with the requirements in s.107? 

8. The Tribunal has had regard to the Departmental file. The applicant was sent a document dated 3 June 2020 entitled “Notice of Intention to Consider Cancellation Under Section 109 of the Migration Act 1958”.  The relevant parts of that notice, including all of the particulars of the applicant’s possible non-compliance, are replicated in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant. 

9. The applicant’s registered migration agent made written submissions on 3 December 2020 in which it is suggested that the applicant did not receive the notice because it was sent to an address in China.  There is no suggestion that this was not the applicant’s address for service of documents or that there was any error in service of the notice on the applicant.

10. The submissions further state that the applicant did receive an email on 3 June 2020 attaching the Notice of Intention to Consider Cancellation, but because the notice was marked “COPY” the applicant considered it as fraud and did not respond.

11. Before evidence was taken at the hearing the applicant’s representative advised the Tribunal that the applicant does not assert that there was any error in the procedure followed by the department.

12. The Tribunal finds that there was no breach of the procedural obligations of s.107 and that the notice was sent to the applicant’s last known address.

13. The Tribunal is satisfied that the delegate had reached the relevant state of mind to engage s.107 and further that the notice of 3 June 2020 (“the s.107 notice”) complies with the requirements of s. 107 of the Act.

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

14. 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) of the Act because the applicant gave incorrect answers in a Temporary Skilled Regional (State/Territory Nominated)(subclass 489) visa application in the section related to English Language and in the Declarations section. 

15. At page 15 of the visa application form the applicant responded “yes” to the question “Has the applicant undertaken an English language test within the 36 months immediately before the date of the invitation letter.”  That answer was false.

16. The applicant stated in the form that he had undertaken the TOEFL iBT test reference number 0000000029683163 on 11 Dec 2016 in China and that his language ability was assessed as “competent” Those answers were false.

17. On page 17 he adopted the declaration that he had provided complete and correct information in every detail on the visa application form.  He had provided false information as set out above and therefore falsely adopted that declaration.

18. The notice also particularised the applicant’s non-compliance with s.103 of the Act by submitting in support of his visa application a bogus document, namely an English test certificate dated 11 December 2016 in the applicant’s name which the Minister reasonably suspects is a document that purports to have been, but was not, issued in respect of the applicant.

19. At the hearing the applicant gave evidence that his ex-wife arranged for someone to sit an English test in China in his name.

20. His visa application was prepared on the basis that he had passed the English test.

21. He agreed that he submitted the results of the test that was taken by an impostor in support of his visa application.

22. He said that he understood that he would need to pass an English test to get a visa and he was worried that he would not pass so he submitted the test results, which the Tribunal finds satisfy the definition of a “Bogus document” for the purposes of s.103 and made the false answers in his visa application.

23. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) and s.103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

24. 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).

25. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance.  The applicant did not respond to the s. 107 notice.

26. The Tribunal must also have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they 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.

27. The applicant gave evidence that he first came to Australia in July 2018.

28. He said that he and his wife separated and were officially divorced in October 2019.

29. The applicant says that he spent about a month working at a hot pot restaurant in Chinatown, then moved to another Chinese restaurant the English name of which he did not know.

30. He finished at that restaurant at the end of February 2020 because a closedown for about 10 months due to the COVID 19 restrictions.

31. He then waited another hot pot restaurant until about the end of August 2020.

32. He said that he had arranged to work there for 6 months because he is planning to return to China to visit his family but those plans were thwarted by the pandemic.

33. He said then that in the meantime he met Mr Lui Shuai who had a restaurant that specialised in the food from the applicant’s home town.

34. The applicant said that he helped to open the restaurant that he works there full-time. He says that he is responsible for the training of new staff and liaison with suppliers.

35. He said that the other cooks at the restaurant and not from the same region as him and he has to teach them how to cook the food.

36. He said that he is not aware of any other cooks in Adelaide from his home town.

37. He said that the restaurant opened on 9 October 2020 and has traded in the intervening time save for a few days of lockdown.

38. The applicant said that although seating in the restaurant had been restricted due to the virus, takeaway had been busy and balanced that out.

39. The applicant said that he works 9 hours a day 6 days a week and that he has paid wages. He said that originally there was talk of him becoming a shareholder or partner in the business, but it is not big enough.

40. He said that there is talk of expanding the business and he hopes he will be a shareholder, which will presumably not be possible if his visa is cancelled and he has to leave Australia.

41. He said that if his visa is cancelled and he is obliged to leave Australia the other people working in the restaurant may not be able to cook the food and may lose their jobs.

42. He also says that his employers would be affected if the business fails.

43. He says that he has a girlfriend but that she is not an Australian citizen. He said that she is an Australian permanent resident.

44. He also said that if the restaurant has to close suppliers will lose business and might be affected.

45. The applicant also gave evidence that the restaurant has ordered new equipment in order to set up a central kitchen and deliver partly prepared food to restaurant shopfronts that will not therefore require full kitchens or specialised cooks.

46. The applicant hopes that this venture will be successful and that they will be able to employ other people. He believes this may not come to pass if he has to go back to China.

47. The 1^st witness called by the applicant was Mr Ningshen Zhao who is one of the directors of the restaurant where the applicant is working, Yummy Tummy. The other director is the other witness, Mr Lui Shuai.

48. Mr Zhao said he was introduced to the applicant by Mr Lui Shuai.

49. Mr Zhao said that he operated aged Chinese charcoal barbecue called Simon Taste which he had for 5 years. He said that he has 10 years’ hospitality industry in 5 years’ experience running restaurants.

50. He said that he had known Mr Lui Shuai for some time and that they had been looking for a business to go into together.

51. He said that when Mr Shuai met the applicant that gave them the idea of opening what became Yummy Tummy.

52. He said that the COVID restrictions meant they could not open until October and the business had been okay although he has hoping for an improvement with the lifting of COVID restrictions.

53. He said that originally they did not offer takeaway but since starting to do so, the kitchen had been busier.

54. He said that he did not think that they would be able to replace the visa holder because he runs the kitchen and the other workers there are his assistance.

55. He was asked about the talk of opening another restaurant which he said would be more like a factory which would produce food to provide to restaurants including their own.

56. Mr Lui Shuai also gave evidence. He confirmed that he is the other director of Yummy Tummy and that he has been working in restaurants in Australia since December 2011.

57. He said that in China he had been a cook in the army then worked in the design and planning bureau for the Chinese government.

58. He said that after he came to Australia, he worked in restaurants for 6 or 7 years then opened his own. Later he was involved in another restaurant, a noodle bar, which is still running and with which he is still involved.

59. He said that he met the applicant in 2019. A mutual friend introduced them because his restaurant was not doing well, and he wanted a new chef.

60. He said he did not employ the applicant the applicant held him adjust the menu.

61. He said that in about November 2019 after he met the applicant, he mentioned to Mr Ningshen Zhao that he might represent an opportunity for a new restaurant.

62. He said that he has worked in the kitchen and Yummy Tummy but that he cannot make noodles the same way. He also said that he is too busy at his other noodle bar to work in the kitchen at Yummy Tummy.

63. He said that he expects to make a profit from Yummy Tummy within a year or 2 and that he does plan to expand the business.

64. He said that the applicant had ordered some equipment from China and that they are expecting delivery at about the time of hearing.

65. He said that they are thinking of renting a central kitchen and having outlets in shopping centres.

66. He agreed that this was quite a different business to the existing restaurant.

67. He said that he does not believe that the applicant can be replaced and further that his noodle bar may be affected as the applicant helps there. He has helped in the other restaurant by giving advice and improving the special sauce.

68. He said that the equipment that is coming from China cost about $30-$40,000 and is not equipment with which he is familiar.

69. He said it was to be used in the factory in the future.

70. He said they have not yet leased premises for the factory. He said that they are still negotiating but did not put a time on the opening of the factory.

71. The Tribunal has regard to a statement signed by Mr Lui on 3 December 2020 which was provided under cover of submissions prepared by the applicant’s registered migration agent on that date.  Mr. Lui adopted that statement as part of his evidence.

72. The statement essentially reflects the oral evidence that Mr. Lui gave with the addition that he says in the final paragraph (in relation to the applicant) “If he leaves, our operations will be greatly affected and may not be able to operate.  If it goes, the restaurant will close up and other employees will lose their jobs.”

73. The Tribunal has considered the prescribed circumstances set out in reg. 2.41.

    The correct information

74. The correct information is that the applicant had not undertaken any English language test and, in particular, had not undertaken the English language test that he referred to.  Further, the correct information is that the applicant’s English language ability had not been assessed as “competent” and he had not provided correct information in every detail of the form.

75. The Tribunal accords this consideration substantial weight in favour of exercising the discretion to cancel the applicant’s visa.

    The content of the genuine document (if any)

76. There is no genuine document relevant to this matter.

    Whether the decision to grant a visa…was based wholly or partly on incorrect information or a bogus document

77. The reasoning behind the grant of the visa to the applicant is not evident on the documents available to the Tribunal. Having said that, cl.489.223 of the Second schedule to the Migration Regulations provides that it is a primary criterion for the grant of a Skilled Regional Nominated (subclass 489) visa that the applicant has competent English (as defined).

78. The fact that the applicant was granted the visa suggests that he was found to have satisfied the primary criteria including the requirement that he had competent English at the time of the application as required by cl.489.223.

79. The Tribunal finds that the applicant did not satisfy that primary criterion at the time of the visa application.  If the applicant had not submitted the false information and the bogus document he would presumably not have been found to satisfy this primary criterion.  The Tribunal finds that the decision to grant the applicant’s visa was therefore based partly on incorrect information or a bogus document. The Tribunal accords this consideration some weight in favour of cancelling the applicant’s visa.

    The circumstances in which the non- compliance occurred

80. The circumstances of the non-compliance were that the applicant deliberately falsified information and a document in respect of his English language ability because he wanted visas for himself, his then wife and a child.  The applicant does not claim that the non compliance was inadvertent or that there is any other explanation for it. The Tribunal accords this consideration substantial weight in favour of cancelling the applicant’s visa.

    The present circumstances of the visa holder

81. The applicant and his former dependants were granted visas on 26 April 2018.  The applicant arrived in Australia on 5 July 2018.

82. The applicant’s evidence was that since he came to Australia he has generally worked as a cook and that he is currently involved in a restaurant owned by the two witnesses, and that there are plans to expand the business.

83. He said that he and his wife have officially divorced but that he is in a new relationship with a woman who is an Australian permanent resident.

84. The Tribunal accords this factor some weight against cancelling the visa.

    The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act.

85. The applicant made no effort to correct the information provided in his visa application or withdraw the bogus document that he provided until shortly before the Tribunal hearing and after his visa had been cancelled.

86. The Tribunal accords this consideration significant weight in favour of cancelling the applicant’s visa.

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

87. There is no evidence of other instances of non-compliance by the visa holder/applicant.  The Tribunal holds this consideration of no weight in favour of cancelling the applicant’s visa.

    The time that has elapsed since the non-compliance

88. The visa was granted on 26 April 2018, a little over 2 ½ years ago.  The applicant has started a relationship with an Australian resident and has worked in several restaurants.  He hopes to be involved in running a new business.  The Tribunal accords this consideration some weight against cancelling the applicant’s visa.

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

89. There is no evidence of any breaches of the law.  The Tribunal holds this consideration as being of no weight in favour of cancelling the visa.

    Any contribution made by the holder to the community

90. The Tribunal has regard to the applicant’s statement and to a short statement signed on 3 December 2020 which says;

    “I Ge Jianfeng make the claim that the TOEFL test taken on 11 December 2016 was       undertaken by an impostor.

    I have lived in Australia for more than 2 years and made a great contribution to     Australia development.

    I am lodging this AAT for the interest of my employer. During this COVID-19        Pandemic, my employer needs me to keep working for them.”

1. The applicant did not claim to have made any other contribution to the community than through his work. 

2. The Tribunal finds that the applicant’s presence has contributed to the establishment of Yummy Tummy restaurant.

3. The Tribunal accords this consideration a little weight against cancelling the applicant’s visa.

4. 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.

5. There is no evidence before the Tribunal that if the applicant’s visa is cancelled there would be consequential cancellations under s. 140.

6. The applicant’s visa was granted along with 2 dependent family members, his then wife, Yan Xi and her daughter An Yan.

7. The applicant gave evidence, which is supported by a divorce certificate submitted to the Tribunal under cover of the applicant’s registered migration agent’s submissions of 3 December 2020, that he and Yan Xi officially divorced in October 2019.

8. The applicant further gave evidence, which the Tribunal accepts, that is ex wife and her daughter are now permanent residents and no longer dependent on his temporary visa.

9. The Tribunal accords this consideration no weight in considering the exercise of its discretion to cancel the applicant’s visa.

100.   There is no evidence that there are children whose interests would be affected by cancellation of the applicant’s visa and the Tribunal accords this consideration no weight in considering the exercise of its discretion to cancel the applicant’s visa.

101.   There is no suggestion or evidence to support a suggestion that cancellation of the applicant’s visa would result in his removal in breach of Australia’s non-refoulement or family unity obligations.

102.   If the applicant’s visa is cancelled he will become an unlawful non-citizen and may be liable to detention and removal from Australia if he does not leave. 

103.   He would be able to apply for a bridging visa to enable him to make arrangements to leave without being detained and removed.

104.   Cancellation of the applicant’s visa will mean that he is limited in his eligibility to apply for future visas to come to or stay in Australia and the risk factors set out in public interest criterion 4013 will mean that he is subject to a 3 year exclusion period before being eligible for the grant of a range of Australian visas.

105.   The Tribunal accords this consideration some weight in favour of not exercising its discretion to cancel the applicant’s visa.

106.   The applicant’s registered migration agent made submissions dated 3 December 2020 to which the Tribunal has had regard.

107.   Those submissions suggested that the delegate cancelled the applicant’s visa “…subject to Public Interest Criteria 4020.”

108.   With respect that is not so and the provisions of that criterion - including whether there are “compelling circumstances that affect the interests of Australia” or “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa” – do not apply. 

109.   Having said that, the submissions in relation to the public interest criterion have been considered by the Tribunal.  They essentially reflect the broad contentions that Yummy Tummy restaurant may need to close if the applicant’s visa is cancelled  and the plans for expansion of the business will be thwarted leading to loss of jobs for various employees and loss of invested funds for Mr. Liu and Mr. Zhao. The submissions also referred to a 16 April 2020 decision of the Tribunal in matter no. 1732547 re Mr Harwinder Singh in relation to the effect of a visa cancellation on a business as it relates to Public Interest Criterion 4020.

110.   The Tribunal finds that to the extent that they suggest that the applicant’s departure will force the closure of Yummy Tummy restaurant and thwart future plans, these submissions are speculative but accords them a little weight against cancelling the applicant’s visa.

111.   The Tribunal has weighed the evidence in light of the prescribed considerations and the further considerations set out above. 

112.   The applicant breached the Act in pursuit of a calculated effort to deceive the Department and obtain a visa which he believed he would not be granted otherwise. The Tribunal finds that the applicant’s deliberate act of deception outweighs all the factors against the exercise of its discretion to cancel the applicant’s visa.

113.   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

114.   The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Mark O'Loughlin
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.