Pattar (Migration)

[2022] AATA 1036

Pattar (Migration) [2022] AATA 1036 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pardeep Singh Pattar

REPRESENTATIVE:  Mr Imran Nawaz Warraich

CASE NUMBER:  2114348

HOME AFFAIRS REFERENCE(S):          BCC2020/2376388

MEMBER:Mary Sheargold

DATE:7 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 07 April 2022 at 4:22pm

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – incorrect answers in visa application – secondary applicant known by another name – undeclared change of identity details – 3-year exclusion period elapsed at time of application – applicant re-uniting with his wife – jeopardising a future business partner – contribution to the community – skills shortage for chefs – staff employed – debt to the Commonwealth – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 48, 101, 107, 109, 189, 198
Migration Regulations 1994, r 2.41; Schedule 4, PIC 4014

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Supinder Singh Toor was born in Fatehabad, India on 31 January 1989.  He is of the Sikh faith.  He came to Australia on 10 March 2008 holding a student visa and completed qualifications to work as a cook.  He applied for a second student visa that was refused; following unsuccessful appeals including judicial review, he applied for a protection visa but withdrew his application and left Australia on 2 February 2013.  When he left, he had a debt to the Commonwealth of $6,471.00, representing costs awarded against him in his unsuccessful judicial review application. 

2. On his return to India, he made an offshore application for a Subclass 457 visa to work as a cook at Rumi Restaurant in Brunswick East – the restaurant where he had worked on a part time basis from February 2009 to November 2011.  That application was refused on the basis that he was subject to Public Interest Criterion 4014, which imposed a 3 year exclusion period from entering Australia.  He applied for a waiver of PIC 4014, but this was not approved.

3. Poonam Rani is a Hindu woman who was studying in Melbourne alongside Supinder Singh Toor in 2008.  The couple, known to friends as ‘Supi’ and ‘Love’, began a relationship and were living together at the time Supinder Singh Toor returned to India in 2013.  Following Supinder Singh Toor’s unsuccessful bid to return to Australia on a temporary work visa, he decided to formally register a change of name to honour his adoptive father, his uncle, and he obtained a new passport.  He is now known as Pardeep Singh Pattar.

4. Poonam Rani returned to India in October 2013 and the couple married.  Their parents consented to their interfaith marriage on the basis that they would establish their lives in Australia where it was possible for them to live together without prejudice.  Some days after the couple’s wedding, they registered their marriage.  At this time, Poonam Rani became aware that her now husband had not only changed his name, but also his date of birth.

5. The couple wished to establish their new life in Australia.  Poonam Rani returned to Melbourne to continue her studies.  She applied to sponsor her husband as a dependent on her student visa in December 2013; this application was refused, but when she applied again in May 2014, the application was approved.  Pardeep Singh Pattar arrived in Melbourne on 21 May 2015 and has remained in Australia since.  Subsequently, Poonam Rani has been the primary visa holder of both Subclass 457 and Subclass 186 visas, with Pardeep Singh Pattar her dependent.  In each visa application made, the couple declared that Pardeep Singh Pattar had not been known by any other name.  In October 2020, the couple applied for Australian citizenship.  It was at this time that forensic examination of Pardeep Singh Pattar’s photographs revealed an identical likeness to the Australian government’s records for Supinder Singh Toor.

6. On becoming aware of Pardeep Singh Toor’s changed identity that had not been declared, the Department took steps to cancel Pardeep Singh Pattar’s Subclass 186 visa, and later took steps to cancel Poonam Rani’s Subclass 186 visa. Section 109(1) of the Migration Act 1958 (Cth) (the Act) was invoked and the basis for cancelling their visas is the provision of incorrect answers in their Subclass 186 visa application form, breaching s.101(b) of the Act.

7. The Tribunal is tasked with determining whether there was non-compliance by Mr Pattar and if so, to decide whether or not to exercise its discretion to cancel his visa.  Mr Pattar agrees that there was non-compliance by providing incorrect answers to multiple questions on his Subclass 186 visa application and unashamedly admits to having provided those incorrect answers in order to circumvent his bar from entering Australia.  On its face, this is a simple decision: Mr Pattar took deliberate and repeated steps to avoid his 3 year exclusion period under PIC 4014, and procured his wife’s involvement in his deception of the Australian government across multiple visa applications.

8. However, in weighing up the factors the Tribunal must consider when determining whether or not to exercise its discretion to cancel Mr Pattar’s visa, the Tribunal finds itself in the difficult position of potentially jeopardising the future of Mr Pattar’s business partner and his family, as well as the employees of their suburban Melbourne restaurant business.  For the reasons outlined below, having weighed up all the factors the Tribunal is obliged to consider, the Tribunal has decided to set aside the delegate’s decision, and substitute a decision not to cancel his Subclass 186 visa.

   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) of the Act by virtue of the provision of incorrect answers. Mr Pattar answered “No” to the following questions on his Subclass 186 visa application:

    ·Is this family member currently, or have they ever been known by any other names?

    ·Has any applicant ever been removed, deported or excluded from any country (including Australia)?

13. He also provided incorrect answers to the request for details of all countries where he had spent a total of 12 months or more in the past 10 years or since turning 16 years of age, and failed to declare his previous travel to Australia in answer to the question of whether, in the last 10 years, he had visited any countries outside his usual country of residence.

14. Mr Pattar was upfront at the hearing, admitting not only to his provision of incorrect answers but also to the reason he provided incorrect answers: he knew he would not be granted a visa to enter and remain in Australia if he had answered all of the questions correctly. Mr Pattar accepts that he has breached the requirements of s.101(b) of the Act.

15. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by Mr Pattar in the way described in the s 107 notice.

    Should the visa be cancelled?

16. 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).

17. 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:

    ·     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.

18. 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

19. Mr Pattar accepts that the correct information that should have appeared on his visa application is substantially different from the information he actually provided.  He acknowledges that he should have declared he had been known by another name, and that he had been to Australia under his previous identity.  Mr Pattar’s recitation of his visa history as Supinder Singh Toor aligns with that set out in the primary decision.  Mr Pattar told the Tribunal he genuinely regrets his actions, and that he did what he did because he wanted to marry his wife, return to Australia, and establish a life with her.  In his view, the opportunity was too good to pass up.  When questioned as to whether he had contemplated waiting until his exclusion period under PIC 4014 had elapsed, he could not provide a satisfactory justification.  In the Tribunal’s view, his actions were entirely selfish and jeopardised not only his future migration prospects, but those of his wife.

20. Given the substantial variance between the correct information and the information Mr Pattar actually provided the Department, the Tribunal gives this consideration significant weight in favour of cancelling the visa.

    The content of the genuine document (if any)

21. The visa cancellation is not being considered on the grounds of provision of a bogus document, and so the Tribunal is unable to give this consideration any weight either in favour or against visa cancellation.

    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

22. The Tribunal notes this is a difficult consideration to weigh up, because Mr Pattar’s 3 year exclusion period under PIC 4014 would have elapsed 3 and a half years prior to the lodgement of this visa application.  Indeed, his wife’s Subclass 457 visa, applied for on 26 August 2016, may well have been granted with him as a dependent had he declared the truth regarding his previous name and travel history. 

23. There is no reason to assume Mr Pattar would have continued to be refused entry to Australia on the cessation of his 3 year exclusion period.  The Tribunal notes that his grant of a dependent student visa in 2015 may not have occurred had they provided the Department with the correct answers to all the questions on that application.  However, this is not the visa grant nor immigration clearance the subject of this review.

24. Given the 3 year exclusion period under PIC 4014 had elapsed even prior to the application for the Subclass 457 visa that gave rise to the application for this Subclass 186 visa in the Temporary Residence Transition Stream, the Tribunal does not find it appropriate to give weight to this consideration in favour of cancelling the visa.  It is not appropriate for the Tribunal to make assumptions as to how the Minister or their delegate arrived at their decision to grant Mr Pattar and his wife Subclass 186 visas where had the correct information been provided, as a matter of law, the applications may still have been approved. However, the Tribunal is not satisfied that it should give weight to this consideration against cancelling the visa either.

    The circumstances in which the non-compliance occurred

25. Mr Pattar’s evidence at his Tribunal hearing is that he sought counsel from friends in India after learning of his 3 year exclusion period under PIC 4014 when his Subclass 457 visa application was refused.  He told the Tribunal those friends recommended he permit his uncle, with whom he had lived his whole life, to adopt him and to register his change of name with the authorities.  Mr Pattar told the Tribunal that his uncle believed he brought good luck, and identified an opportunity to potentially return to Australia in less than 3 years.

26. Mr Pattar’s evidence is, in essence, that he was blinded by love for his future wife and would have done anything to be able to come back to Australia to build a life with her.  He admits that he told her about the adoption and change of name prior to her returning to India for their wedding, and that she had told him she did not care what his name was, as long as they were together.

27. Mr Pattar freely admits that he deliberately registered a change to his name and acquired a new Indian passport in that name, with a false date of birth.  He told the Tribunal he changed his date of birth because he did not want to raise suspicion with the Australian government if he retained his true date of birth.  He admits openly that on each visa application made since changing his name he has provided incorrect answers to questions.  He is adamant that while realising now his acts were foolhardy, they were appropriate in circumstances where he wished to be reunited with his true love, who was someone he would not be likely to be able to marry and live with if they returned to India.

28. It is clear to the Tribunal that Mr Pattar took methodical, deliberate and repeated steps to avoid the Australian government enforcing the 3 year exclusion period against him.  Therefore, the Tribunal gives this consideration significant weight in favour of cancelling the visa.

    The present circumstances of the visa holder

29. Mr Pattar has lived in Australia for the majority of the past 14 years, he has assimilated into Australian society and the Australian way of life.  He has developed deep ties in the Sikh community, the broader Indian-Australian community, and the hospitality sector.  He and his wife have purchased a home and are repaying their first mortgage.  In October 2020, he acquired a 50% shareholding and directorship in the restaurant business where he had worked for many years.  His business partner, like Mr Pattar, is dependent on the success of this business to secure his family’s livelihood.  Mr Pattar gave evidence that he and his wife have delayed plans to start their family, wishing to ensure their future in Australia was secure first.

30. The Tribunal notes that but for providing incorrect answers to his application to travel to Australia as his wife’s dependent spouse in 2014, he would not have become so established in his life in Australia.  However, the circumstances leading to the grant of that dependent student visa are not under scrutiny; rather, it is the circumstances leading to the grant of his permanent residency visa in 2019.

31. Therefore, the Tribunal gives this consideration some weight against cancelling the visa.

    The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Pt 2, Div 3 of the Act

32. The Tribunal has reviewed Mr Pattar’s representative’s statements made in response to the Notice of Intention to Consider Cancellation issued prior to the delegate’s decision to cancel the visa and notes they are unhelpful at best and a hindrance to Mr Pattar at worst.  Mr Pattar has openly departed from the views his representative espoused in the response to the NOICC and has shown some contrition and sheepishness regarding his conduct.

33. The Tribunal appreciates Mr Pattar’s candour and his admissions that he did not behave appropriately when he chose to provide the Department with incorrect answers on multiple visa applications.  He has accepted that the non-compliance occurred and has asked the Tribunal to focus on weighing up his circumstances against his previous misconduct to make a fair assessment of his review application.  He has not shied away from, or attempted to excuse or mask, his previous poor decisions.

34. Considering Mr Pattar’s behaviour during the review process and the contrition he has shown for his actions, the Tribunal gives this consideration a little weight against cancelling the visa.

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

35. There is no evidence that there are other instances of non-compliance by Mr Pattar, including when he was known as Supinder Singh Toor, known to the Minister.  Therefore, I give this factor a little weight against cancelling the visa.

    The time that has elapsed since the non-compliance

36. The applicant provided incorrect answers to questions on multiple visa applications as well as his application for Australian citizenship.  He has demonstrated a sustained, methodical approach to his non-compliance and clearly did not intend to declare his former identity to the Australian government at any point.  Given this pattern of behaviour, the Tribunal gives this consideration a little weight in favour of cancelling the visa.

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

37. There is no evidence before the Tribunal to indicate that Mr Pattar has breached any laws since the non-compliance occurred.  The Tribunal gives this consideration some weight against cancelling the visa.

    Any contribution made by the visa holder to the community

38. At the hearing, Mr Pattar told the Tribunal that he and his wife regularly volunteer in serving food at their local Sikh temple in Craigieburn and that they provide the temple kitchen with groceries to cook meals on a weekly basis.  Mr Pattar is a registered blood and plasma donor and has provided the Tribunal with evidence of his recent donations via the Red Cross Blood Bank.

39. Of significance, Mr Pattar is the director, 50% shareholder, and Head Chef at The Moor’s Head restaurant in Thornbury.  The hospitality sector in Melbourne has been severely impacted by the Covid-19 pandemic and the protracted lockdown periods in Victoria during 2020 and 2021.  Mr Pattar’s evidence is that the restaurant is only able to serve dinner 5 nights a week due to staff shortages.  Mr Pattar said he is hopeful that the restaurant will return to lunch and dinner service 7 days per week, as soon as staffing levels permit.

1. After the hearing, Mr Pattar provided the Tribunal with a statement from the business’s co-owner, David Figliomeni.  In summary, the evidence clearly suggests that without Mr Pattar in Australia running the kitchen, the restaurant will have to close.  Mr Figliomeni has indicated his family’s financial dependence on the success of this business, and cites they provide jobs for 15 staff on a mix of full-time, part-time, and casual bases.  Mr Pattar has provided other letters of support outlining the importance of his business to the hospitality sector in Melbourne’s northern suburbs.

2. In the context of the known skills shortage for chefs in Australia following the Covid-19 pandemic, as well as the known shortage of staff available to work in the hospitality sector in Melbourne, the Tribunal accepts there is a very real prospect that Mr Pattar’s business would fail if he was to leave Australia.  The Tribunal gives significant weight to the evidence from Mr Figliomeni who cites he is unable to stretch himself further financially to buy out Mr Pattar, and notes that his wife and daughters are already working shifts in the restaurant without fair remuneration in order to keep the restaurant open and to keep other staff employed. 

3. Given the economic uncertainty in Melbourne’s hospitality sector, the Tribunal is persuaded that it is in the community’s best interests to maintain the employment of the staff at The Moor’s Head and to ensure this restaurant continues to operate, and accepts this is unlikely to be possible if the visa is cancelled.

4. Therefore, the Tribunal gives this consideration significant weight against cancelling the visa.

   Whether there are persons in Australia whose visa would, or may, be cancelled consequentially

5. There would be no consequential cancellations arising if the applicant’s visa is cancelled.  Therefore, the Tribunal gives this consideration a little weight in favour of cancelling the visa.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

6. There is no evidence before the Tribunal to suggest that Australia would be in breach of any of its international obligations if the applicant’s visa was cancelled. As noted above, the applicant and his wife have delayed starting a family and so there are no children whose interests need to be considered.  Mr Pattar has told the Tribunal that while it would be difficult for him to live with his wife in India given their different religions, family statuses and language barriers between themselves and their parents, he does not fear he will come to harm if he returns to India.

7. The Tribunal gives this consideration a little weight in favour of cancelling the visa.

   Whether there are mandatory legal consequences to a cancellation decision

8. If Mr Pattar’s visa is cancelled, he may be detained under s.189 of the Act and be liable to be removed from Australia under s.198 of Act as he would no longer hold a valid visa. However, it would be open to him to return to India to mitigate the possibility of being placed in immigration detention. The Tribunal does not consider that there is potential for him to be detained indefinitely.

9. However, he may be subject to s.48 of the Act, preventing him from applying for further visas while in Australia, and he may be affected by PIC 4013, limiting the grant of a new temporary visa for a specified period. Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.

   Any other relevant matters

10. Mr Pattar has a debt to the Commonwealth of $6,471.00.  At the hearing, he indicated that he will do whatever is necessary to repay this debt and states he only became aware that it existed after receiving the NOICC.  Whilst he has not yet repaid the debt, the Tribunal accepts that he will pay on receipt of instructions as to how to do that.  Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.

11. Mr Pattar’s previous student visa refusal, when he was known as Supinder Singh Toor, was based on findings that he did not have sufficient financial capacity to support himself during his studies; he had transferred money to a savings account for the purpose of the visa application and then all the funds had been withdrawn.  The Tribunal gives this consideration a little weight in favour of cancelling the visa.

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

    DECISION

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

    Mary Sheargold
    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.