Gowland (Migration)

[2022] AATA 3649

Gowland (Migration) [2022] AATA 3649 (6 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Matthew John Gowland

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2119701

HOME AFFAIRS REFERENCE(S):          BCC2020/2877502

MEMBER:Moira Brophy

DATE:6 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 06 September 2022 at 2:12pm

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

LEGISLATION
Migration Act 1958, ss 99, 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2, cl 417.211

CASES
MIAC v Khadgi (2010) 190 FCR 248

statement of decision and reasons

application for review

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

2. The delegate cancelled the visa on the basis that the applicant had provided false information in their application for the visa. 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, Mr Matthew John Garland appeared before the Tribunal on 1 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the partner of the visa applicant, Ms Emily Der. 

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

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

   BACKGROUND

6. The applicant is a 25-year-old male born in Canada.  He is a citizen of Canada. He entered Australia on 1 November 2018 on a Subclass 417 (Working Holiday) visa, which ceased on 1 November 2019. He departed Australia on 30 July 2019. He lodged an application for a further Subclass 417 (Working Holiday) visa, which was granted on 22 November 2019. He applied for and was granted a further Subclass 417 (Working Holiday) visa on 6 December 2020.

7. As part of his application for a further Subclass 417 (Working Holiday) visa, the applicant completed an electronic application form, and in response to a question about specified work in regional Australia for a total period of six months, the applicant indicated he had undertaken that work.

8. Prior to hearing, the applicant provided documents including the following:

   • Submissions;

   ·Identity documents;

   • Copy of visa grant;
   • Personal statement dated 24 August 2022;
   • Letters in support from his partner and a friend;
   • Character references;
   • Trade qualifications;
   • Evidence of donation to Cancer Council; and
   • Previous decisions of the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s. 107 and that the notice issued under s. 107 complied with the statutory requirements.

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

12. 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) in the following respects:

    ·Visa applications to be correct.

    • A non-citizen must fill in his or her application form in such a way that:
    • all questions on it are answered; and
    • no incorrect answers are given.

13. The breach of s. 101(b) relates to a Subclass 417 Working Holiday visa (the Working Holiday visa) the applicant was granted on 6 December 2020.

14. 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 ss. 100, 101(b), 102(b), 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.

15. The Working Holiday visa application form (lodged online by the applicant on 6 December 2020) included the following questions and answers:

    Q: Have you undertaken specified work in regional Australia for a total of 6 months?

    A: Yes.

16. The application form included a ‘details of specified work undertaken’ section, and in response the applicant provided the following information:

Legal registered name:	Berry sweet strawberry farm
Trading name:	Berry sweet strawberry farm
Australian Business Number (ABN):	78597340065
Postcode:	6084
Industry type:	Agriculture, forestry and fishing
Industry type sub-group:	Tree farming and felling
Date from:	23 March 2020
Date to:	13 September 2020
Total days worked:	190

1. The Department initiated employment verification checks with The Trustees for the Yewers Family Trust T/A Berry Sweet Strawberry Farm, the business registered under ABN 78597340065, to verify the applicant’s employment claims. On 18 December 2020, Berry Sweet Strawberry Farm contacted the Department and advised that the applicant never worked at their business.

2. Based on this information, the delegate considered the applicant did not comply with s. 101(b) of Subdivision C of the Act, because at the time he lodged his Subclass 417 Working Holiday (Extension) visa application on 6 December 2020, he provided answers to questions asked that were incorrect. The delegate considered those answers to be incorrect because the nominated employer had given advice that the applicant had not been employed by them.

3. The non-compliance identified and particularised in the s. 107 notice was non‑compliance with s. 101(b) by the applicant in the way described in the s. 107 notice sent to the applicant on 12 October 2021.

4. The applicant did not respond to the NOICC.

5. The Tribunal has considered the material on file, and the notice of intention to consider cancellation. The Tribunal is satisfied the applicant was given an opportunity to respond but chose to not do so.

6. The Tribunal was mindful that the applicant was on a temporary visa for a limited period. On his evidence at hearing the applicant said it was a difficult time because of COVID and the consequent uncertainty. The Tribunal accepts it was a time of uncertainty but instead of contacting the Department to discuss with them his predicament, the applicant engaged an agent on the understanding that he would be ensured the grant of a visa without any problems.  His conduct in engaging an agent to handle his second application was indicative of his preparedness to access and use services that would enable him to achieve his preferred migration outcome with little regard for the actual requirements of the visa.

7. The Tribunal finds that there was non-compliance with s. 101(b) by the applicant in the way described in the s. 107 notice.

   Should the visa be cancelled?

8. 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).

9. 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: ss. 109(1)(b) and (c). The prescribed circumstances are set out in reg. 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; and

   ·     any contribution made by the holder to the community.

10. 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.

11. The applicant was informed at the beginning of the hearing that each of the reg. 2.41 prescribed circumstances would be considered by the Tribunal along with any other relevant facts and matters. The Tribunal has had regard to the documentary evidence the applicant provided prior to hearing and to the oral evidence given by the applicant at the hearing.

12. The Tribunal has taken these matters into account when considering the discretion. The Tribunal has also taken into account that had the incorrect information not been provided – and the correct information had been – relating to the regional work requirement, the Working Holiday visa would not have been granted in 2020.

    The correct information

13. The applicant was granted the Working Holiday visa on 6 December 2020 on the basis that he had worked for at least six months in specified work in regional Australia. The applicant was asked at the hearing what the correct information was relating to his work in a regional area at the time he lodged the application. He told the Tribunal he did not work in a regional area during the period from 23 March 2020 to 13 September 2020 as he had indicated in his application.

14. The Tribunal has found that the correct information at the time of application was that the applicant had not worked for at least six months in specified work in regional Australia.

15. The correct information was not provided. This is a significant issue which weighs in favour of cancellation.

    The content of the genuine document (if any)

16. 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

17. Clause 417.211(5) of the Regulations 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 three months’ full-time work.

18. The Tribunal finds that the assessment of the applicant’s claimed previous employment in regional Australia was central to the assessment of his eligibility for the Working Holiday visa. The Tribunal finds that the decision to grant the Working Holiday visa was based on incorrect information relating to the applicant’s employment in regional Australia. This weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

19. The applicant told the Tribunal that after he first arrived in Australia in November 2018, he had travelled around to see a bit of Australia. He had come to Australia with an open mind but after travelling around he settled in Sydney and he really enjoyed the city and the lifestyle, so he considered ways to enable him to stay beyond his initial 12-month visa. He was aware of the requirement to complete regional work for a second Working Holiday visa, and he completed the required work in South Australia at a sheep station. He said he had never been on a farm before so it was a real eye opener for him. He lodged his application for a second Working Holiday visa and he returned to Canada in the period from July 2019 to January 2020. He returned to Australia and within two months, restrictions on employment and travel were imposed due to Covid.  On his evidence he was not aware of the requirement to complete a requisite six-month regional work to apply for a third Working Holiday visa. He had by this time met his partner and determined he wished to remain in Australia.

20. The applicant said he was very stressed about applying for a third Working Holiday visa and was fearful of having to return to Canada as the COVID‑19 situation there was bad and his family were adversely impacted. When he heard from a friend that there was someone he could engage to handle the application in a way that ensured a positive outcome for him, he contacted them. He said he never met with him, it was all done via email, and he paid him a sum of money to handle the application for him. He said he did not inform himself of the requirement of the visa and he was not aware he was unable to meet those requirements. He said he did not take any action to ensure the information provided was in fact correct. He paid someone to take care of the matter as he considered he had no other option when he wanted to remain in Australia. When asked whether he had at any time contacted the Department to discuss with them his options given the impacts of the COVID-19 pandemic, he said he had not.

21. The applicant told the Tribunal he did not check his application prior to it being lodged. The Tribunal is of the view that the applicant had the responsibility to learn what evidence was being submitted on his behalf. The applicant could have requested to check the entire application before its lodgment and ask the agent to provide him with a draft copy of the form. In the Tribunal’s view, it was his responsibility to do so to ensure that any information that was being submitted on his behalf was correct and accurate.

22. The Tribunal finds that the applicant was complicit in the actions of his agent.

23. The circumstances in which the non-compliance occurred, including the applicant’s reliance on his agent, are not accepted as justifying the non-compliance in this instance.

    The present circumstances of the visa holder

24. The applicant told the Tribunal that he has been working full-time as an excavator operator for a demolition company. He is currently living with his partner at her parents’ home. He has lived there for the past two years. The applicant appreciated his life in Australia and was wanting to stay on a long‑term basis. It was his intention to apply for a permanent visa if that was possible. He told the Tribunal he would apply for either a Partner visa or a Sponsored visa if his employer was willing. While accepting of the mistake that had been made and his role in that, he asked that the uncertainty during the COVID-19 pandemic at the time the application was submitted be taken into consideration. He also asked that his mental health at this time be considered as he submitted that it impacted on his decision making. He told the Tribunal he was truly remorseful.

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

25. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations. This is a relevant consideration and weighs against cancellation.

    Any other instances of non-compliance by the visa holder known to the Minister and any breaches of the law since non-compliance

26. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal is not aware of any other breaches of the law since the non-compliance. The Tribunal has given weight to this as a factor against cancellation.

    The time that has elapsed since the non-compliance

27. It has been 21 months since the applicant provided incorrect answers. The Tribunal does not consider this to be a significant amount of time and accordingly does not place weight on this as a factor.

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

28. There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal has given weight to this as a factor against cancellation.

    Any contribution made by the holder to the community

29. When asked at the time of hearing, the applicant said he had made a positive contribution to the Australian community. He considered the fact he worked and paid taxes was contributing to the Australian community. He has made donations to the Cancer Council and to the homeless.

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

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

    • Whether there are persons in Australia whose visas would, or may, be cancelled under s. 140 of the Act.
    • Whether there are mandatory legal consequences to a cancellation decision; for example, whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non‑refoulement obligations.
    • Whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g., s. 46A, s. 46B, s. 48, s. 48A etc. of the Act).
    • Whether, upon cancellation, the person would become an unlawful non‑citizen (unless the person holds another visa that is in effect) and is liable to be detained under s. 189 and removed under s. 198 of the Act.
    • Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; for example, if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration.
    • Whether the cancellation would lead to the person’s removal in breach of Australia’s non‑refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, or cruel, inhuman or degrading treatment or punishment.
    • Any other relevant matter.

    Whether there would be consequential cancellations under s. 140

1. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

   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

2. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non‑citizen who could be detained and removed from Australia pursuant to s. 189 of the Act. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three‑year exclusion period unless he meets the relevant public interest criterion. The Tribunal acknowledges the difficulty this would cause the applicant; however, it finds this not to be sufficient to weigh in the applicant’s favour.

3. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although the applicant may have limited opportunities when making future visa applications in Australia.

4. While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if his visa is cancelled, he has benefited from providing the incorrect information in the Working Holiday visa application, and it is very likely that he would not have been granted that visa if he had provided correct or accurate information about satisfying the work requirement.

   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

5. There is nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation.

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

6. When asked about the hardship that may be caused by cancellation of his visa, the applicant said it was the effects on his relationship that were of most concern to him. He very much wanted to be able to stay in Australia, to build his relationship with his partner and to make his future with her here in Australia. He said he would be able to return to Canada, but to live with his family would be difficult as they had been adversely impacted by the pandemic and had lost a lot of money because of their loss of employment during that period. He said the effects of the COVID-19 pandemic were severe in Canada and were still being felt. He has told his parents about the issues with his visa. The Tribunal accepts there would be hardship to his employer if he had to leave Australia as it was very hard to find contractors in the construction industry at the present time. The Tribunal also accepts there would be a degree of hardship for his partner. She was working in the mental health area and was making a valuable contribution to the community. Separation from the applicant would be distressing for her and would impact on her mental health and her ability to be gainfully employed. The Tribunal also acknowledges there would also be an adverse effect on the finances of the applicant if he had to relocate and establish himself again.

7. The applicant told the Tribunal that the effects of the cancellation would be very difficult for him. He was doing well in Australia and was well regarded in his work. He wanted to stay in Australia and contribute to the community here, and he was mindful of the implications of a cancellation on his immigration record. He said the effects would be personal, professional and financial.

8. The Tribunal has also considered the potential impact of the current COVID-19 pandemic both in Australia and in Canada and appreciates the applicant’s concerns in this regard.

   Conclusion on the exercise of the discretion

9. In considering the exercise of the discretion, the Tribunal has considered the totality of the applicant’s circumstances including his submission that he was in this situation because of COVID‑19 and as a consequence he made a poor judgement call at the time the application was made.

10. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s. 101.

11. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law. The Tribunal accepts that certain hardship may be caused by the cancellation because of the effects on him personally, professionally and financially if he has to relocate. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. There are no consequential cancellations.

12. The Tribunal accepts that if the applicant’s visa is cancelled, and unless he is granted another visa, he may be subject to a period of detention. When this was discussed with the applicant at the time of hearing, he said he would liaise with the Department and would hope to be granted a Bridging visa E to allow him to make arrangements to leave the country. He has some savings so would be able to buy an airline ticket to return to Canada.

13. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect answers. The Tribunal has formed the view that the applicant did not take adequate steps to ensure the correctness of his application. He paid someone to lodge an application without taking any steps to ascertain if the material submitted on his behalf was correct. In the Tribunal’s view, the fact that the decision to grant the visa was based on incorrect answers outweighs other considerations.

14. 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

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

    Moira Brophy
    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.