Jatin (Migration)

[2023] AATA 4053

Jatin (Migration) [2023] AATA 4053 (14 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatin Jatin

REPRESENTATIVE:  Mr Dildeep Singh (MARN: 1281067)

CASE NUMBER:  2208664

HOME AFFAIRS REFERENCE(S):          BCC2020/2418047

MEMBER:Rachel Westaway

DATE:14 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 14 November 2023 at 5:23pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had provided incorrect information in his application – bank statement in the applicant’s name did not belong to him – bogus documents – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2.    The delegate cancelled the visa on the basis that the applicant did not comply with section 101(b) and section 103 of the Migration Act 1958 (the Act). 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 14 August 2023 at 9:30am to give evidence and present arguments. The Tribunal also received oral evidence from Ms Simran Pathania, the review applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4.    The applicant was represented in relation to the review.

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.

8.    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.

Background

9.          The applicant is a 29-year-old male from India.

10.      The applicant was granted a TU-500 visa on 17 December 2019.

Tribunal Application

11.      The applicant lodged their application for review on 14 June 2022.

12.      On 17 June 2022 they provided the Department of Home Affairs decision record and    Notification letter.

13.      On 4 August 2023 the applicant’s authorised representative submitted an email which included the following documents:

·Indian passport.

·Certificate III in Commercial Cookery from AVETA dated 21 April 2022.

·Certificate of Insurance dated 8 March 2022.

·CoE for Certificate III in Commercial Cookery starting 27 January 2020 – 24 January 2021.

• CoE for Certificate IV in Commercial Cookery starting 25 January 2021 – 24 July 2021.
• CoE for Diploma of Hospitality Management starting 26 July 2021 – 23 January 2022.
• CoE for Certificate III in Commercial Cookery starting 8 March 2021 – 8 March 2022.
• CoE for Certificate IV in Commercial Cookery starting 11 April 2022 – 6 November 2022.
• CoE for Diploma of Hospitality Management starting 14 November 2022 – 2 July 2023.

·An offer letter from Victorian College of Education dated 4 August 2023.

·600 Visa grant letter dated 24 July 2019.

·TU 500 visa grant letter dated 19 December 2019.

·TU 500 refusal letter dated 9 September 2022.

·NOICC letter addressed to applicant dated 7 March 2022.

·Decision Record to cancel visa dated 8 June 2022.

·Notification Letter to cancel visa dated 8 June 2022.

·Hearing Invitation from the Tribunal.

·Hearing Response letter.

·Bridging Visa E grant letter dated 22 June 2022.

·Payslips from Cornerstone Medical Recruitment in the name of third party not named in application.

·Driver’s licence of third party not named in application.

·A letter from the applicant’s representative addressing the reasons for why the visa was cancelled dated 7 August 2023.

·Support letter from the applicant’s employer Gurpreet Singh Randhawa.

·Bank statements from the applicant and his sister’s bank account respectively.

·Support letter from applicant’s sister Simran Pathania dated 4 August 2023.

Oral Evidence taken at hearing

1. The Tribunal outlined the information before it and the reasons why the delegate cancelled the visa. The applicant stated that he agreed that the information was incorrect and stated that his previous migration agent submitted the material. He was asked why he did not respond to the NOICC and he stated that his migration agent was responsible for this. When he applied for his student visa and the NOICC was received his migration agent told him not to respond.

2. He stated that he had a small amount of savings in his mother’s account however it was not with that bank. He explained that his mother banks with Punjab National Bank. He stated that he had no idea how much was in the account. He said that he had saved half of his salary which was approximately A$10,000 to12,000 and his mother helped him save. He stated he had been saving for approximately 1-1.5 years.

3. The applicant confirmed he has not breached any conditions on his visa.

4. He explained he has been in Australia since 11 August 2019. He has completed a certificate 3 in Cookery and then in 2022 his visa was cancelled. He explained why it took so long to complete the certificate.  He explained that he had to change colleges initially as there was a misunderstanding with the first college he was enrolled in. He changed colleges to AVENTA and he stated he was then successful in his studies. He said he became sick at the beginning of the COVID pandemic and the course provider didn’t understand. He experienced headaches and took Panadol and however when asked he said he did not see a doctor. He was scared with COVID and was worried about his sister’s job at the time and he did go to the doctor a few times then.

5. He said he would like to continue studying. He enrolled in a package course however he spoke to course provider and could not study his Certificate 4 whilst the decision is under review. He has been trying to improve his English and spends his free time at home and would simply like to survive.

6. The applicant confirmed he lives with his sister in Melton South  and she is a nurse.

7. He is working at a restaurant as a canopy cleaner. He said he works 7-8 hours either during the day or at night and it is a hard job. He confirmed he has had work rights since July 2022.

8. He confirmed he has no partner or children.

9. He mixes with the Punjabi community in Melbourne but everyone is busy. He attends the temple two times a month and he also has a temple at home.

10. He confirmed his parents are separated. His mother is in Australia and she will leave on 20 October 2023 and has been visiting Australia for approximately 6 months.

11. He stated there is no reason he cannot return to India but he wants to finish his studies and settle and support his mother and he would like to finish his education and return to India to apply what he has learnt.

12. The Tribunal sought clarification pertaining to the level of education the applicant was seeking to attain and he stated it is the diploma. He wants to do both the certificate and diploma.

13. The Tribunal asked the applicant if he would be able to undertake the remainder of his course through distance education. He explained that it is cooking and presentation and would be difficult to complete. He explained that he knew this through COVID he experienced these issues and because it requires group work. He completed his Certificate 3 but it took a while due to the practical component.

14. He was asked why he is not working in hospitality and he said he has a strong bond with owner of the business he works for and he feel supported.

15. The Tribunal offered the applicant the opportunity to provide any further information. He asked to be allowed to complete his studies so he can learn more and he will return to India and open his own kitchen and use these skills.

16. The applicant’s sister provided oral evidence at the hearing. She confirmed she is a nurse and is based in Wonthaggi in regional Victoria and travels for her work. She came to Australia 7 years ago and confirmed she has recently received her permanent residence.

17. She said she used a different migration agent to her brother. She said that the applicant  wants to finish his study and return home.

18. She said that during COVID she received a lot of emotional support from her brother and she was studying and he assisted her greatly. She said she wants to do the same for him. She embraced the Australian community and nursing and older people and saw the benefits of living in Australia and helping older people.

19. When asked why her brother wants to return to India after his studies but she did not, she explained that she is different and she adapted and her professional goals are different and her mum is in India and they would like him to support her and return.

20. She was offered the opportunity to provide further information and she stated she had told the Tribunal everything she wanted to say.

21. The Tribunal confirmed with the applicant’s agent if he wished to add anything further and he  confirmed he had nothing to add other than his client wants to assist and support his mother because she lives by herself and doesn’t work. He sends her money and would like to remain in Australia to complete his education and return to India

22. The applicant provided the Tribunal with a post hearing submission dated 14 August 2023. In summary, the following points were made

23. The applicant does not have the requisite level of English language to apply for a Permanent visa or any other temporary visa to extend his stay in Australia and as such would not want to see permanent residence. The only visa he remains eligible for is a student visa that will allow him to complete his studies and return home. He reiterated what was stated at hearing which was that the applicant’s mother is a single, unemployed woman with no skills and the applicant is her only source of income and support in India. As such he has a strong incentive to return to India and build his career there .

24. The submission asked the Tribunal to consider case 2206631 of Mr Lovedeep Singh Maan, which was decided by the AAT. The submission stated that the Member had insufficient information about the bogus document to determine if it was a bogus document produced by the applicant or the agent and gave the benefit of the doubt to the review applicant and the decision was set aside.

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

25. 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 101(b) and section 103 of the Migration Act 1958  in the following respects: On 05 July 2019 the applicant lodged an application for a Visitor (Tourist Stream) (subclass 600) visa. In support of his visa application, the applicant also provided, the following documents

    • HDFC Bank (India) statement issued on 24 June 2019, confirming that the applicant was the holder of an account number XXXX4323 and had a current balance of INR 10,43,403.
    • Based on the information the applicant provided in his visa application, the supporting document outlined above and meeting all other relevant criteria, the applicant was granted a Visitor (Tourist Stream) (subclass 600) visa on 24 July 2019. This visa ceased on 12 November 2019.
    • On 04 September 2020 the Department’s New Delhi Office conducted integrity checks on the bank statement that the applicant provided with his Visitor (Tourist Stream) (subclass 600) visa. The outcome of the integrity check confirmed HDFC Bank did not issue the bank statement that he provided with his application.
    • Given this finding, the delegate found the document to be a bogus document as it is counterfeit or altered by a person without the authority to do so, as defined by section 5(1)(b) of the Act.
    • The delegate found that the applicant had not complied with s103 of the Act. As the applicant did not comply with s103 of the Act in relation to his Visitor (Tourist Stream) (subclass 600) visa application, by virtue of s107A of the Act, his Student (Vocational Education) (subclass 500) was cancelled under s109 of the Act.

26. The Tribunal has considered the material before it and notes that the applicant confirmed he and his mother did not have an account with HDFC Bank India and that the account did not belong to him. Further the Tribunal has considered that the integrity checks undertaken by the Department also confirmed that the document was bogus. The Tribunal has also considered that the applicant stated he did not supply the bank statement but it may have been his migration agent. In the applicant’s submission post hearing, he asked that the Tribunal consider another AAT matter whereby the decision maker was unable to determine if the material was in fact bogus. The Tribunal is satisfied that the bank statement in the applicant’s name did not belong to him based on his own admission and the integrity checks.

27. The Tribunal has considered the fact that the applicant claims he did not provide the bank statement and it may have been his migration agent.

28. It is not necessary to show that the bogus document was provided by somebody else with the visa applicant’s knowledge and complicity, the document or information must still be ‘given or caused to be given’ by the visa applicant. This does not mean that the applicant needs to be aware that false information has been given by that other person, or that the applicant gave instructions to that other person for the bogus document to be provided. The applicant had engaged the services of a migration agent to represent him however he is still responsible for the application and the supporting evidence contained within in. Furthermore, whilst the applicant claims to have had another account with savings he had accumulated he did not provide a copy of this and provided no evidence of his discussions with his then migration agent regarding financial evidence required for the lodgement of the visa with this account attached.

29. For these reasons, the Tribunal finds that there was non-compliance with s 103 by the applicant in the way 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 consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

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

    the correct information

33. The correct information as stated by the applicant and confirmed by integrity checks undertaken by the Department is that the applicant did not have an account with HDFC Bank (India) with a balance of INR 10,43,403. As stated by the applicant but not provided, he had an account with Punjab National Bank.

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

    the content of the genuine document (if any)

35. Integrity checks undertaken by the Department have confirmed that the account used to support the applicant’s visitor visa application was not issued by HDFC Bank and as such the statement was bogus.

36. The Tribunal gives 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

37. In the assessment of a visitor visa, the delegate will consider whether the applicant has adequate means to support themselves or access to adequate means to support themselves during their time in Australia. As the evidence provided by the applicant was bogus the decision maker did not have evidence before them to make the correct decision.

38. Whilst the applicant has stated that he did have savings with his mother and the applicant’s sister has subsequently confirmed her commitment to supporting her brother, this material was not before the delegate and as such the delegate may have made a less favourable decision.

39. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    the circumstances in which the non-compliance occurred

40. The applicant provided a bogus document in his application for a visitor visa which supported a more favourable migration outcome based on the material before the delegate. Whilst the applicant has stated he was not aware of the provision of the bogus document, he utilised the services of a migration agent to assist him and is responsible for the material he submitted.

41. The Tribunal gives this consideration some weight in favour of cancelling the visa.

    the present circumstances of the visa holder

42. The applicant is living with his sister and is employed. He has stated that he is sending money home to his mother who lives alone and is unemployed. The Tribunal acknowledges that if the visa is cancelled the applicant will not be able to work and there may be a period in which he is not able to earn money which he sends to his mother to support her. The applicant’s sister with whom he lives has stated he has previously provided her with emotional support. The Tribunal acknowledges that if the visa is cancelled and the applicant must return to India the applicant will not have the support of her brother. The Tribunal does however note that the applicant was only ever on a temporary visa and would have had to have returned to India at some point.

43. The applicant has stated that he is friends with people in his community and attends his local temple twice a year. The Tribunal acknowledges that if the visa is cancelled, the applicant has been in Australia for four years and would have established ties to the community.

1. The Tribunal acknowledges that the cancellation of the applicant’s visa would affect the applicant employer who would need to find another staff member if the visa is cancelled.

2. The Tribunal also acknowledges that the applicant has stated he is working on improving his English whilst waiting for the review of his cancellation and to return to India if the visa is cancelled would limit his ability to do this.

3. The Tribunal notes that the applicant enrolled in a package course and the cancellation of his visa may affect him financially if he is unable to receive a refund.

4. The Tribunal gives these considerations some weight in favour of the applicant and 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

5. There is nothing before the Tribunal to indicate any adverse matters pertaining to this consideration other than noting that the applicant did not respond to the NOICC. The Tribunal affords this consideration neutral weight in regard to the cancellation of the applicant’s visa.

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

6. There is nothing before the Tribunal indicating non-compliance by the applicant. The Tribunal accepts that there have been no other known instances of non-compliance by the visa holder and gives this factor some weight in favour of its discretion to not cancel the visa.

   the time that has elapsed since the non-compliance

7. The non-compliance occurred on 5 July 2019 when the applicant applied for a visitor visa and a bogus document was provided to support the application. Over fours years have passed however the Tribunal does not consider this a significant period of time and the applicant has stated that he would like to return to India and does not want to remain in Australia. Whilst the Tribunal acknowledges that the applicant would have established ties to community during this period, the Tribunal gives this consideration limited weight in favour of not cancelling the visa.

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

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

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

   any contribution made by the holder to the community

10. There is nothing before the Tribunal to indicate that the applicant is involved in voluntary work or contributing to the community in any exceptional capacity. The Tribunal notes however that he is employed and is friends with people in his community and supports his sister who is a nurse and contributes to the community.

11. The Tribunal gives this consideration a little weight in favour of not cancelling the visa.

    whether there would be consequential cancellations under s 140.

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

    whether there are mandatory legal consequences, such as whether 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.

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

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

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

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

16. The applicant is a citizen of India and has made no claim for a protection visa. He has stated that there is no reason why he could not return to India and stated that he would like to return to India after his studies are complete. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations. There is no suggestion that the interests of any children in Australia may be adversely affected by the visa cancellation.

17. The Tribunal affords this consideration neutral weight regarding the cancellation.

18. 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, both individually and cumulatively as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Rachel Westaway
    Senior 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).

    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.