Hynes (Migration)

[2021] AATA 1173

Hynes (Migration) [2021] AATA 1173 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ross Christopher Hynes

CASE NUMBER:  2014758

HOME AFFAIRS REFERENCE(S):          BCC2020/1894203

MEMBER:Tania Flood

DATE:2 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2021 at 9:51am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 Working Holiday (Extension) (Third) – ground for cancellation – incorrect information in visa application – specified work in regional area – bogus document – payslips – employment verification – period of employment – consideration of discretion – circumstances giving rise to non-compliance – COVID-19 pandemic in Ireland – employment opportunities – personal and financial hardship – seriousness of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109

Migration Regulations 1994 (Cth), 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 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).

2. On 23 June 2020 the applicant was granted a Working Holiday (Extension) (class TZ subclass 417) visa.  On 27 August 2020 the applicant was sent a notice of intention to consider cancellation (NOICC) of the visa.  On 15 September 2020 the applicant responded to the NOICC admitting that he had mistakenly, for genuine reasons, submitted bogus documents to secure a visa in Australia for a further year.

3. On 24 September 2020 the delegate cancelled the visa on the basis that the applicant provided incorrect information in his Working Holiday (Extension) (Third) (subclass 417) visa application and bogus documents in support of his application. 

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 26 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from a former colleague of the applicant.

6. 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

7. 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.

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 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.

9. 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.

10. 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) and s.103 of the Migration Act in the following respects:

11. The notice states that on pages one and two of the application form the applicant declared ‘Yes’ that he had carried out at least six months of specified work while holding the second Working Holiday visa (subclass 417).  He declared ‘Yes’ that all of that work was carried out on or after 1 July 2019.

12. The notice states that on page five under the heading ‘Details of specified work undertaken’ the applicant answered that he was employed by Moxey Farms Pty Ltd with Trading name Moxey Farms and ABN 24078443599.

13. The notice states that on page six, under the heading ‘Details of specified work undertaken’ the applicant answered that the ‘Employer business address’ postcode was 2805.

14. The notice states that on page six, under the heading ‘Details of specified work undertaken’ the applicant answered under the section titled ‘Work conditions’ that he worked in the Agriculture, forestry and fishing industry, Plant and animal cultivation sub-group, from 10 September 2019 to 21 March 2020.

15. The notice states that on page nine, under the heading ‘Working holiday declarations’ the applicant declared ‘Yes’ to the statement ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’.

16. The notice states that on pages nine and ten of the application form, under the heading ‘Declarations’ where it appears ‘Warning: Giving false or misleading information is a serious offence.  The applicants declare that they: Have read and understood the information provided to them in this application’ the applicant answered ‘Yes’.  Where it appears ‘Have provided complete and correct information in every detail on this form, and on any attachments to it’ the applicant answered ‘Yes’.  Where it appears ‘Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time’ the applicant answered ‘Yes’.  Where it appears ‘Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, this visa may subsequently be cancelled’ the applicant answered ‘Yes’.

17. The notice referred to copies of documents provided in support of the application relating to the applicants claimed employment:

    ·13 x payslip for the period from 23 September 2019 to 22 March 2020 purportedly from Moxey Farms Pty Ltd

    ·An extract of the ‘Employment details’ section on Form 1263 – Working Holiday visa: Employment verification for the period from 10 September 2019 to 21 March 2020 purportedly signed by Patrick Williams – HR Manager at Moxey Farms Pty Ltd.  In this document, Patrick Williams purportedly confirmed that the applicant worked at the business Moxey Farms Pty Ltd for the period from 10 September 2019 to 21 March 2020.

    ·A copy of a letter titled ‘Re: Deduction Agreement’, dated 24 March 2020, confirming that the applicant was employed by Moxey Farms Pty Ltd from 10 September to 21 March 2020 purportedly signed by Patrick Williams – HR Manager at Moxey Farms Pty Ltd.

18. The notice states that based on the above information, as well as meeting other relevant criteria, the applicant was granted a Working Holiday (Extension) (subclass 417) visa on 23 June 2020.

19. The notice points out that subsequent to the grant of the visa, the Department initiated employment verification checks with Moxey Farms Pty Ltd, the business registered under ABN 24078443599, to verify the applicant’s employment claims.  On 6 July 2020, the People Services Manager of Moxey Farms Pty Ltd contacted the Department and advised that the applicant did not work for them from 10 September 2019 to 21 March 2020 but was employed by the business from 12 February 2019 to 1 July 2019 instead.

20. The notice stated that the declarations and answers given by the applicant in the application for the Working Holiday (Extension) (subclass 417) visa appear to be incorrect because verification checks undertaken by the Department concluded that he worked at Moxey Farms Pty Ltd from 12 February 2019 to 1 July 2019 for a period of four months and 20 days while he held the first Working Holiday (subclass 417) visa until 30 May 2019; a bridging visa that was granted on the basis of the application for the second subclass 417 visa until 7 June 2019; and the second Working Holiday (subclass 417) visa since 7 June 2019.  The notice indicates that this appears to be significantly different from the information the applicant provided on the Working Holiday (Extension) (subclass 417) visa application dated 13 May 2020 that he worked at the Moxey Farms Pty Ltd from 10 September 2019 to 22 March 2020, a period of six months and 12 days, while holding the second Working Holiday (subclass 417) visa.

21. The notice states that the applicant is considered not to have complied with section 101(b) and that accordingly the Working Holiday (Extension) (subclass 417) visa may be liable for cancellation under section 109 of the Migration Act.

22. Furthermore, the notice states that the documents provided by the applicant in support of the application for a Working Holiday (Extension) (subclass 417) visa are considered bogus because verification checks undertaken by the Department have concluded that he did not work for Moxey Farms Pty Ltd from 10 September 2019 to 21 March 2020 as claimed.  The notice states that the documents appear to be counterfeit or altered by a person who does not have authority to do so, as they were not genuinely issued in respect of his claimed employment period.  The notice states that had the departmental officer been aware the documents were bogus at the time of assessing the application the visa may not have been granted. 

23. The notice states that accordingly the Working Holiday (Extension) (subclass 417) visa is liable for cancellation consideration for possible non-compliance with sections 101(b) and 103 under section 109 of the Migration Act.

    Applicant’s response to the notice

24. On 15 September 2020 the applicant provided a response to the notice.  In his response he apologised for the inconvenience and annoyance caused.  He states that he submitted bogus documents in order to secure a visa in Australia for a further year.  He stated that he made a mistake and admitted to doing wrong for genuine reasons.  He referred to the lack of opportunities in Ireland due to Covid-19.  He stated he worked as a PE teacher and barman in Ireland, positions which are no longer viable options.  He stated that he had not intended to apply for a third working holiday visa but that due to a genuine fear and concern for his well-being and security, he made the panic driven mistake of applying with bogus documents.  He stated that his family are not in a position to support him and because he had a job as a labourer in Australia he knew that he could afford food and rent.  He stated that his concern is still for his immediate future.  He stated that he joined the Mable Home Care Service in order to provide assistance to those who needed it.  He stated his belief that this demonstrates a genuine contribution to the country and its society. He stated that he hopes to return to Ireland in the near future when things settle down.  He stated that he hopes to study to become a primary school teacher within the next year.   Attached to his response is confirmation of his voluntary work and employment with Mable Home Care Service.

    Submission to the Tribunal

25. The applicant provided a written statement to the Tribunal which refers to the high prevalence of Covid-19 cases in Ireland and his limited options to find employment if he returns to Ireland on account of the pandemic and his lack of experience.  Furthermore, he states that the Irish government is currently considering introducing mandatory hotel quarantine for persons entering the country and this situation would diminish his valuable savings.  He states that his family cannot support him financially but as he would not be able to rent accommodation and would have no choice but to move into his parent’s home.  He said he has elderly parents and vulnerable family members who would all be at risk of infection if he were to return home.  The applicant states that his past behaviour was a once-off lapse of judgement and that he is not a dishonest person.  He states he felt he had no other choice because he could not afford to apply for a student visa and there were no offers of sponsorship available to him.  He said he acted out of concern for himself and those he cares about.

26. Attached to the submission is proof of the applicants claimed volunteering and employment with Mabel Home Care Service.

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

27. Whereas the applicant indicated in his application for a Working Holiday (Extension) (subclass 417) visa that he was employed by Moxey Farms Pty Ltd from 10 September 2019 to 21 March 2020 subsequent information came to light which indicates that he in fact only worked there from 12 February 2019 to 1 July 2019. When the applicant appeared before the Tribunal he confirmed his earlier admission to the Department that the information he provided in his application was incorrect.   Furthermore, he confirmed his earlier admission to the Department that the documents provided in support of his claimed employment with Moxey Farms Pty Ltd between 10 September 2019 and 21 March 2020 are indeed bogus.

28. Having carefully considered the available information and in light of the applicant’s oral and written evidence, the Tribunal is satisfied that the applicant provided incorrect information and bogus documentation in respect of his claimed employment with Moxey Farms Pty Ltd. 

29. The Tribunal finds there was non-compliance with s.101(b) and s.103 of the Migration Act in the manner described in the s.107 notice.

    Should the visa be cancelled?

30. 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).

31. In exercising this power, the Tribunal must, and has, considered the applicant’s response (if any) to the s.107 notice about the non-compliance, and had 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

32. In order to be eligible for the grant of the Working Holiday (Extension) (subclass 417) visa the applicant was required to undertake specified work in a regional area for six months on or after 1 July 2019 as the holder of the second subclass 417 visa or a bridging visa that was in effect as part of the eligibility criteria for the grant of the visa.   Based on all the available evidence, the correct information is that the applicant worked for Moxey Farms Pty Ltd for a period of four months and 20 days between 12 February 2019 and 1 July 2019. 

33. The applicant has provided incorrect information about his employment and the Tribunal considers this weighs strongly in favour of cancelling the visa.

    The content of the genuine document (if any)

34. The applicant has admitted to providing non-genuine documents in support of his claimed employment with Moxey Farms Pty Ltd in order to secure a visa.  The Tribunal considers the provision of bogus documents to the Department to be a serious breach of the law and has given this consideration significant weight in favour of cancelling the visa.

    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

35. The Tribunal is satisfied that the applicant provided incorrect information and bogus documents in his application for a Working Holiday (Extension) (subclass) visa. The Tribunal considers the applicant would have been found not to meet the requirements for the grant of the visa if the correct information was provided.

36. The Tribunal has given this consideration significant weight in favour of cancelling the visa.

    The circumstances in which the non-compliance occurred

37. The applicant’s reasons for the non-compliance are outlined above.  Namely that he was reluctant to return to Ireland due to the situation he would likely face due to the scale of the Covid-19 pandemic in his country.  Specifically, the applicant was concerned that he would not secure any employment and that he might endanger the health of his parents and other family members.  The applicant stated during the Tribunal hearing that it is unlikely he would have acted in this manner if it were not for the pandemic.  He said he acted out of panic and not in keeping with his character.

38. The Tribunal acknowledges the applicant is remorseful for his actions and has some sympathy for him in the circumstances.  That said, the Tribunal is not satisfied that the circumstances in which the non-compliance occurred mitigate the seriousness of providing bogus documents to the Department.

    The present circumstances of the visa holder

39. During the hearing the applicant informed the Tribunal that he has been in Australia for over two years.  He said he is single and does not have any children.  He said that he is currently working in the construction industry and has been trying hard to amass some savings (roughly $7,000 to $8,000).  He said that if other visa options were available to him in Australia he would take them up but that ultimately he wants to become a teacher so will return to Ireland to study and achieve that goal.

40. The Tribunal accepts that a decision to cancel the applicant’s visa will disrupt his present employment and the personal connections he has made in Australia.  The Tribunal also accepts that if the applicant is required to return to Ireland now he will likely face some difficulties finding employment and may be dependent on his parents, one of whom is currently out of work, for accommodation and support, at least initially.  The Tribunal acknowledges that this may cause the applicant some personal and financial hardship.

41. The Tribunal has afforded these considerations some weight in favour of not cancelling the visa.

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

42. The applicant has been honest and forthcoming to the Department and the Tribunal about the non-compliance and he has expressed genuine remorse for his actions.    

43. The Tribunal gives this some weight in favour of not cancelling the visa.

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

44. The Tribunal is not aware of any other instances of non-compliance and also gives this some weight in favour of not cancelling the visa.

    The time that has elapsed since the non-compliance

45. It is less than a year since the non-compliance and as discussed with the applicant during the hearing he has had the benefit of continuing to work during this period. 

46. The Tribunal considers these circumstances weigh in favour of cancelling the visa.

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

47. There is no information before the Tribunal to indicate that the applicant has breached any other Australian laws.  The Tribunal gives this some weight in favour of not cancelling the visa.

    Any contribution made by the visa holder to the community.

1. The applicant volunteered as a care worker for about three months followed by a period of employment with Mable Home Care.  His witness testified that he embraced the volunteer role with enthusiasm and worked hard to provide a high standard of care.

2. The Tribunal affords his willingness to contribute to the community some weight in favour of not cancelling the visa.

3. 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.

4. The Tribunal has also considered the following matters:

   Whether there would be consequential cancellations under s.140.

5. Based on the available evidence the Tribunal is satisfied that there would be no consequential cancellations under s.140 if the visa is cancelled.

   Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations. 

6. The applicant informed the Tribunal that he has no children and is single and there is no suggestion that a decision to cancel his visa would be in breach of Australia’s obligations in respect of the Convention on the Rights of the Child. 

7. The applicant informed the Tribunal that he is a citizen of Ireland and he confirmed that he has no reason to fear persecution or significant harm in Ireland. The Tribunal is satisfied that a decision to cancel the applicant’s visa and remove him from Australia to Ireland would not result in a breach of Australia’s non-refoulement obligations.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

8. The Tribunal accepts that if the applicant’s visa is cancelled he could be liable to detention and subsequent removal from Australia.  The Tribunal also accepts that his ability to apply for further visas might be impacted. However, as discussed with the applicant during the hearing he may be eligible for a Bridging Visa E to remain onshore until he is able to depart Australia.  Noting his concerns in respect of the Covid-19 pandemic the Tribunal pointed out to the applicant that the Department has put in place contingency options for visa holders impacted by the pandemic which might be open to him to explore.

9. The Tribunal has also had regard to other relevant matters such as the degree of hardship, including financial hardship, that may be caused to the applicant if his visa is cancelled.  In this regard the Tribunal notes the concern expressed by the applicant in his submission that Ireland is considering imposing mandatory hotel quarantine for persons entering the country while the Covid-19 pandemic continues to be a threat.  However, when the Tribunal discussed this with the applicant during the hearing he said that to date no policy decision of this type has been implemented to his knowledge.  Therefore, the Tribunal considers the applicant’s savings will not be depleted for this reason and that he will have some money to assist with his upkeep when he arrives back in Ireland.

10. The Tribunal is not persuaded that any of the above additional considerations weigh in favour of the applicant’s visa not being cancelled.

    CONCLUSION

11. 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.  Non-compliance involving the provision of incorrect information and bogus documents are in the Tribunal’s view serious matters.  Having regard to all the above considerations the Tribunal is not satisfied that the circumstances weighing in favour of the visa not being cancelled outweigh those in favour of cancelling the visa.

12. The Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Tania Flood
    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.

    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).

    105Particulars of incorrect answers to be given

    (1)If a non‑citizen becomes aware that:

    (a)     an answer given or provided in his or her application form; or

    (b)     an answer given in his or her passenger card; or

    (c)      information given by him or her under section 104 about the form or card; or

    (d)     a response given by him or her under section 107;

    was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

    (2)Subsection (1) applies despite the grant of any visa.

    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.