Vincent (Migration)

[2020] AATA 2861

Vincent (Migration) [2020] AATA 2861 (9 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dickson Kuzhippillil Vincent

CASE NUMBER:  1927797

DIBP REFERENCE(S):  BCC2018/4090586

MEMBER:John Cipolla

DATE:9 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

Statement made on 9 July 2020 at 1:23pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Professional) (Class VF) visa – Subclass 476 (Skilled - Recognised Graduate) – incorrect information and bogus documents – completion of relevant course within 24 months before application made – degree certificate and academic transcript – integrity checks – results identical to other applicants’ – claim that agent submitted documents without applicant’s knowledge – applicant holds genuine degree from another university, completed more than 24 months before application made – work in Australia and work opportunities in home country – visa now expired – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 98, 100, 101, 103, 107, 109(1), 111

Migration Regulations 1994 (Cth), r 2.41

CASE

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 Immigration to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of India born in 21 December 1989. He was granted the Skilled Recognised Graduate Class VF visa on 13 December 2017 and the visa was valid until 6 October 2019. This visa allows recent engineering graduates of recognised institutions to travel to and remain in Australia to gain up to 18 months skilled work experience. To be eligible for this visa the applicant must have completed an engineering degree at a recognised institution in the past two years. On 14 August 2019, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.103 of the Act. The applicant provided his response to the NOICC on 17 September 2019 and his visa was cancelled on 26 September 2019. The applicant sought a review of the delegate’s decision.

3. The applicant appeared before the Tribunal via teleconferencing facilities on 8 July 2020 to give evidence and present arguments. The applicant’s representative also attended the hearing via teleconferencing facilities. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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.

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

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal is satisfied that the Notice contains sufficient particulars to enable the applicant to identify and address the issues.  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?

8. 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 and s.103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

   a.The applicant made the application for the Class VF visa on 29 October 2017.

   b.In his application form, in response to a question about his post-secondary qualifications, the applicant stated that he completed a Bachelor degree, namely a Bachelor of Civil Engineering at Kumaraguru College of Technology Coimbature India between 1 August 2014 and 30 April 2017. In support of this the applicant provided a Provisional Certificate from Anna University which had been issued on 15 June 2017 stating that he qualified for the award of the degree through Kumaraguru College of Technology Coimbature, an autonomous college affiliated to Anna University.

   c.The applicant signed a ‘declaration for all applicants’ as part of the application form confirming that he provided complete and correct information in every detail on the form and any attachments.

   d.On the basis of this information provided to the Department the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 13 December 2017.

   e.The Department undertook integrity checks regarding the applicant’s qualifications. The Department became aware of widespread visa fraud involving applicants claiming to be engineering graduates from Anna University and its affiliated universities providing bogus academic transcripts to fulfil the requirements for the grant of the Subclass 476 visas.  The Department’s investigation found that many transcripts are identical in terms of dates and grades and that the personal identifies were being amended to tailor transcripts to individual applicants.

   f.The applicant’s transcript has been matched against samples from other graduates claiming to have studied the same course at the same institution and was found to have identical scores, grades and dates as other applicants.

10. In his written response to the NOICC, the applicant stated that he completed a Bachelor of Engineering in Electronics and Communication in May 2012. The applicant stated that after receiving the NOICC he discovered that the agent that lodged his Subclass 476 visa application had submitted documents that he had not provided to the agent. Those documents were evidence of the applicant having completed a Bachelor of Civil Engineering from Kumaraguru College of Technology, Coimbatore, India from 1 August 2014 to 30 April 2017. The applicant stated that after learning through the NOICC of this immigration fraud that he attempted to contact the agent in India who had assisted him with the application and could not contact the agency and that he came to learn that the company was “a big fraud.”  The applicant states that he was not aware of bogus documents being submitted until he received the NOICC and that he should not be held responsible.

11. The applicant also provided a written submission to the Tribunal dated 30 June 2020, which the Tribunal has duly considered. The applicant confirmed that he had completed studies in Electronics and Communication in May 2012.  He advised that he approached an agency in India to seek advice about migration to Australia.  The agent, Overseas Education and Placement Service explained to the applicant the difficulty and time delays of obtaining permanent residence and advised that there were temporary residence options such as a Skilled Graduate visa which only took three months to obtain. The applicant was asked by the agency to provide details of his academic records which he duly provided.  The applicant also submitted snapshots of the e-mails forwarded to the agent. He further confirmed that since being served with the NOICC he had been trying to contact the agent in India without success. The applicant submitted evidence that the agency had been the subject of punitive action in India.  

12. The applicant’s evidence indicates that he had not obtained a Bachelor of Civil Engineering at Kumaraguru College of Technology Coimbature India between 1 August 2014 and 30 April 2017. On the basis of this information, the Tribunal finds that the consolidated statement of grades issued by Kumaraguru College of Technology is a bogus document either within the meaning of s. 5(a) because it purports to have been, but was not, issued in respect of the applicant, or within the meaning of s. 5(b) because it is counterfeit or has been altered by a person who does not have authority to do so. The Tribunal finds that the applicant has given, presented, produced or provided to an officer or the Minister, a bogus document or caused such a document to be so given, produced or provided.

13. The Tribunal further finds that on the application form for the visa, in response to the question whether he had completed a recognised course at a recognised university in the 24 months immediately before lodging the application, to which he responded “yes”, was incorrect, as the evidence indicates the applicant completed a Bachelor of Engineering in Electronics and Communication in May 2012 and did not in fact complete a Bachelor of Civil Engineering at Kumaraguru College of Technology Coimbature India between 1 August 2014 and 30 April 2017.  Further to this that in response to questions about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Civil Engineering at Kumaraguru College of Technology Coimbature India between 1 August 2014 and 30 April 2017. The Tribunal finds that the applicant completed his application form in such a way that incorrect answers were given. The Tribunal further finds that the applicant declared in his application that the information provided in the application was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.

14. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that he was unaware of the fraud. However, the Tribunal is of the view that by instructing the agent to prepare and lodge the application for him, and paying the fees for the service, the applicant created an agency arrangement between himself and the agent preparing his application.

15. Further, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s.98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Section 100 provides that 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. Further, s. 111 states that sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers or bogus documents.

16. The Tribunal finds that the applicant filled in or completed his application form in a way that incorrect answers were given or provided and he did not comply with s. 101 of the Act. The Tribunal also finds that the applicant gave, presented, produced or provided, to an officer or the Minister, a bogus document or caused such a document to be so given, presented, produced or provided. He did not comply with s.103 of the Act.

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

    Should the visa be cancelled?

18. 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).

19. 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 r.2.41 of the Migration Regulations 1994 (the Regulations). They are addressed below:

    The correct information

20. The correct information is that the applicant did not complete the Bachelor of Civil Engineering at Kumaraguru College of Technology Coimbature India between 1 August 2014 and 30 April 2017.  The correct information is that the applicant has completed a different qualification and not the one he referred to in his visa application.

    The content of the genuine document (if any)

21. The Tribunal has found that the academic qualifications and transcript provided is a bogus document. Genuine documents would not indicate that the applicant obtained a Bachelor of Civil Engineering at Kumaraguru College of Technology Coimbature India between 1 August 2014 and 30 April 2017. Indeed, they would show that he obtained a Bachelor of Engineering in Electronics and Communication in May 2012 at Annamalai University in the Faculty of Engineering and Technology, as confirmed by the applicant in his evidence to the Tribunal at review.

    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. In assessing whether the applicant was eligible to be granted the visa, the delegate found he had completed an engineering qualification at a specified educational institution, within 24 months immediately prior to lodging the application.

23. In the NOICC response the applicant advised he completed his university studies in May 2012, namely a Bachelor of Engineering in Electronics and Communication at Annamalai University in the Faculty of Engineering and Technology.  He applied for the Subclass 476 visa 29 October 2017.  This evidence indicates that the applicant’s qualifications were obtained more than 24 months prior to lodging the application.

24. In the application for the visa as has been noted above, the applicant stated in response to the question, whether he had completed a recognised course at a recognised university in the 24 months immediately before lodging the application, he responded “yes” and this as noted was clearly incorrect

25. In providing the incorrect answers the applicant has obtained an immigration outcome to which he may not have been entitled.

26. Clause 476.212 of Schedule 2 to the Regulations requires the applicant to have completed a prescribed qualification from a prescribed institution. The applicant’s evidence to the Tribunal is that his qualification did not meet this requirement. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of his eligibility for the visa. The Tribunal finds that the decision to grant the visa was based on incorrect information and bogus documents relating to the applicant’s study.

27. Further, the applicant would have been required to meet PIC 4020 before he could be granted the visa and if it was known that the applicant gave information that was false or misleading in a material particular and a bogus document with his application, the assessment against PIC 4020 would have been more thorough. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information and on a bogus document.

    The circumstances in which the non-compliance occurred

28. The circumstances in which the non-compliance occurred were that the applicant engaged an agent to look into potential permanent residency and temporary residency options in Australia.  The applicant was given advice about the Subclass 476 visa and submitted documents to the agent in support of that visa application, which was duly lodged, as per the applicant’s instructions.  The lodgement of the application by the applicant meant that the applicant had the responsibility to ensure that any information that was being submitted on his behalf was correct. The applicant based on the evidence before the Tribunal had not taken any steps to do so.  The Tribunal finds that the applicant was either complicit in the actions of his agent or he was negligent in his actions and recklessly indifferent in his dealings with the agent, with his sole focus on obtaining a visa outcome. Indeed, the applicant has expressed to both the Department and the Tribunal that his objective was permanent residence.

    The present circumstances of the visa holder

29. In his response to the NOICC and in evidence to the Tribunal the applicant advised that he has current employment in the frozen food industry as a picker and packer and is currently, due to the impact of COVID 19, working 2-3 days a week.  Before that time, between February 2020 and June 2020 the work had been full time.  The applicant had also managed to find work in Australia since his arrival as a store person, a process worker and a line operator. 

30. The applicant advised that he is single.

31. The applicant advised the Tribunal that he had borrowed money to come to Australia and he would like to continue to work and look for a permanent residency pathway as there were limited options available to him if he returned to India.  The Tribunal questioned this by noting that the applicant had a Bachelor of Engineering degree along with relevant work experience and that he could work in this field in India. The Tribunal also noted that the applicant had undertaken largely unskilled work in Australia and this suggested that the opportunities available to him in his home country were greater.

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

32. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the above provisions

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

33. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

34. The application for the visa was made in October 2017. Approximately 16 months have passed since the non-compliance.

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

35. There are no known breaches of the law. The Tribunal acknowledges the applicant’s Indian police certificate.

    Any contribution made by the holder to the community.

36. The applicant refers to his employment in Australia. The Tribunal is prepared to accept that the applicant was making some contribution to the community through the payment of taxes through his employment. The applicant advised that he has also made contributions to Cerebral Palsy Australia. The Tribunal accepts that the applicant has made some contribution to the community.

37. 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 Procedure 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.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. If the applicant resides in Australia and if the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he would be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

   Whether there would be consequential cancellations under s.140

2. There are no persons whose visas would be subject to cancellation under s.140.

   Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

3. There are no children who would be affected by the cancellation.

4. The applicant has raised no issues that would ground Australia’s protection obligations. The applicant has only stated that there were better job prospects for him in Australia and limited work and economic prospects for him in India. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

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

5. The applicant states that he would suffer hardship if the visa is cancelled. The applicant advised the Tribunal that he had to pay money for the visa and that he has an outstanding loan and also a loan from his parents that needs to be re-paid. The applicant stated he had limited savings of about $1000 in Australia and this did not cover his debts.  The applicant also stated that he has been outside India now for in excess of two years and that his absence from India makes it difficult for him to secure work in India on his return.

6. The applicant has repeatedly told the Tribunal that he wants to work in Australia and that it is difficult to find a job in India. The Tribunal acknowledges the applicant’s desire to work in Australia but notes that the visa in question is a temporary visa only and that it has now expired. The applicant has never been given a right to remain in Australia on a long-term basis. The Tribunal accepts that the cancellation of the visa may lead to the applicant’s departure from Australia earlier than he planned, and his job opportunities may be more limited that he had hoped for, as a result.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 and s.103 of the Act and that there are grounds for cancelling his visa.

8. There are no other known instances of non-compliance or breaches of the law. The Tribunal notes that 32 months have passed since the breach and the Tribunal accepts that since his entry to Australia the applicant has engaged in employment, formed friendships and taken  steps to contribute to the community. The Tribunal accepts that some hardship may be caused by the cancellation of the visa because the applicant will have limited visa options in Australia and may not be able to work in Australia.  The Tribunal accepts that there are reasons why the visa should not be cancelled.

9. The Tribunal finds that the applicant’s objective has been to find a pathway to permanent residence and further notes that had the correct information and correct documentary evidence been before the delegate the applicant would not have met the essential criteria relevant to the grant of the visa. 

10. The Tribunal finds that Australia’s international obligations would be breached as a result of the cancellation.

11. The Tribunal places considerable weight on the fact that the decision to grant the visa was based on incorrect information and bogus documents. As noted, the applicant would not have been granted the visa if the correct information had been before the delegate. The Tribunal has formed the view that the applicant did not ensure that the correct information and genuine documents were submitted with his application, relying on the agent to whom, according to his evidence, he paid a significant amount of money.

12. The Tribunal finds that the circumstances in which the ground for cancellation arose, the fact that the decision to grant the visa was based on incorrect information and the significance of the incorrect information and bogus documents to the applicant’s eligibility for the visa, outweigh other considerations.

13. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

14. The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

    John Cipolla
    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.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.