Weng (Migration)

[2021] AATA 2210

Weng (Migration) [2021] AATA 2210 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wuqing Weng

CASE NUMBER:  2100330

HOME AFFAIRS REFERENCE(S):          BCC2018/2343178

MEMBER:Jason Pennell

DATE:11 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 892 (State/Territory Sponsored Business Owner) visa.

Statement made on 11 May 2021 at 5.09pm

CATCHWORDS
MIGRATION – cancellation – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ground for cancellation – incorrect information in previous visa application – relationship status – existence of a child – failure to notify change in circumstances – consideration of discretion – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 104, 107, 109

Migration Regulations 1994 (Cth), r 2.41

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 892 (State/Territory Sponsored Business Owner) visa under s.109(1) of the Migration Act 1958 (the Act).

2.The delegate cancelled the 892 visa on 11 January 2021 on the basis that the applicant did not comply with sections 101(b) and 104 of the Act determining incorrect information was provided on previous visa application forms about his relationship status and that he also failed to notify the Department of Home Affairs (‘the Department’) of a change in his circumstances, specifically that he had a child. 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 in-person before the Tribunal on 30 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

5.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.

6.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.

1. The applicant is a 31-year-old male from China who first arrived in Australia on 5 August 2008 on a visitor (TR 676) visa.[1] He was subsequently granted a temporary State/ Territory Sponsored Business Owner (UR 163) visa on 28 February 2013 while he was offshore as a dependent on his father’s (Mr Zuwen Weng) 163 visa. On 11 May 2013 the applicant arrived in Australia on the163 visa[2].

   [1] Department of Home Affairs - Departmental Movement Records dated 1 April 2021

   [2] Department of Home Affairs - Integrated Client Services Environment (ICSE) records

2. The applicant was then granted a permanent State / Territory Sponsored Business Owner (DF 892) visa on 22 February 2017 while he was onshore as a dependant on his mother’s (Ms Aihong Shu’s) 892 visa.[3] 

   [3] Ibid

3. The applicant’s parents both declared in their respective 163 and 892 visa applications that the applicant had never married or been in a de facto relationship nor had any dependent children. The applicant also declared as part of his mother’s 892 visa application that he did not have a partner nor any children[4].

   [4] Department of Home Affairs file

4. On 30 June 2017 the applicant lodged an offshore permanent Child (AH 101) visa application for his son (Master Caiwaxiang Weng) born in April 2012. The applicant declared his son was his natural child and that he was married to his son’s mother Ms Tingting Chen.

5. The Department conducted telephone interviews with the applicant and his wife about the 101 child visa application and the delegate was satisfied both parties had provided consistent information about their relationship development. However, the delegate noted their child was born during the applicant’s mother’s pending 163 visa application, but the child’s birth was not declared. The applicant responded advising he and his wife were young students who relied solely on their parents for financial support. The applicant subsequently withdrew this 101 visa application on 11 August 2017.

6. On 23 February 2018 the applicant lodged an application for Australian citizenship by conferral (which was subsequently refused by the Department on 18 January 2021 because the applicant was not a permanent resident at that time[5]), declaring he had the following two children:

   (a)Master Caixiang Wendy born in China in April 2012, and

   (b)Yiyi Cheng born in China in November 2017.

   [5] Department of Home Affairs - Applicant’s ICSE records, Permission Request ID 1810610699

7. On 23 November 2020 the Department sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC) letter giving the applicant an opportunity to respond to the delegate’s findings that he may have provided incorrect information about his relationship status[6] and also failed to notify the Department of a change in his circumstances, specifically that he had a child, while a previous visa application was pending.[7]

   [6] Section 101(b) of the Act

   [7] Section 104 of the Act.

8. On 2 December 2020 the applicant responded to the NOICC conceding to non-compliance with sections 101(b) and 104 about failing to declare he had a child but did not concede to non-compliance with sections 101(b) and 104 about his relationship status. The applicant provided the following material as part of his response to the NOICC:

   ·English translated paternity test for Master Caixiang dated 7 March 2017 indicating the applicant and Ms Tingting Chen are his biological parents

   ·Custody Transfer document between applicant and his wife Ms Tingting Chen about their child’s arrangements translated into English on 2 December 2020

   ·Chinese Marriage Certificate between applicant and his wife Ms Tingting Chen dated 13 June 2017 translated into English

   ·Applicant’s Bachelor of Accounting from Central Queensland University dated 21 November 2016

   ·English translated copy of applicant’s Chinese Diploma of Business and Enterprise Administration dated 25 June 2013

   ·English translated copy of applicant’s Chinese Diploma of Ideological and Political Education from Sanming University dated 1 July 2013 

9. Upon assessing the applicant’s response, the delegate decided to cancel the visa on 11 January 2021 determining incorrect information was provided about his relationship status (s.101(b)) and that he also failed to notify the Department of a change in his circumstances, specifically that he had a child, while the previously granted visa application was pending (s.104).

10. On 11 January 2021 the applicant lodged a merits review application resulting in this AAT case number 2100330.

11. The applicant is currently onshore on a Bridging Visa E with attached visa conditions 8101 (no work), 8506 (notify new address) and 8207 (no study).

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

1. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. Having considered the NOICC provided by the department to the applicant, 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?

1. 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 applicant’s non-compliance identified and particularised in the s.107 notice was non-compliance with sections 101(b) and 104 about failing to declare he had a child and non-compliance with sections 101(b) and 104 about his relationship status.

2. The applicant conceded in his response to the NOICC to non-compliance with sections 101(b) and 104 about failing to declare he had a child, however, he did not concede to  non-compliance with sections 101(b) and 104 about his relationship status by reason of the fact that he claimed that he was not in a relationship with Ms Tingting Chen at the time the applicant was made. However, notwithstanding this fact, on any view the applicant had failed to notify the Department of his marriage to Ms Tingting Chen pursuant to section 104 of the Act. For these reasons, the Tribunal finds that there was non-compliance with sections 101(b) and 104 by the applicant in the way described in the s.107 notice.

Submissions

1. The applicant provided the following material to the Tribunal in support his review application[8]

   ·Department’s primary notification letter and decision record dated 11 January 2021

   ·Undated document entitled ‘Supplement and proof to information in the previous explanation letter’ being applicant’s response to visa cancellation enclosing child registration, child custody transfer, marriage certificate, paternity test declaring applicant is Master Caixiang Weng’s father and letter from applicant’s mother

   ·English translated undated statement of applicant entitled ‘Written Statement and Supporting Evidence’ about circumstances of incorrectly completing application forms, his relationship with Ms Tingting Chen and his child plus his strong ties to Australia

   ·English translated Statement of Ms Aihong Shu (applicant’s mother) dated 19 April 2021 about the relationship between the applicant and Ms Tingting Chen and child’s circumstances

   ·English translated Statement of Ms Tingting Chen (applicant’s wife) dated 19 April 2021 detailing how the couple’s relationship developed to the point of registering their marriage for the child

   ·Chinese Marriage Certificate between applicant and his wife Ms Tingting Chen dated 13 June 2017 translated into English

   ·General information about the definition of Marriage in China translated into English on 22 April 2021 stating Chinese men can marry after 22 years old and women after 20 years old, couple must register their marriage and Wikipedia information about Engagements in China 

   ·Custody Transfer document between applicant and his wife Ms Tingting Chen about their child’s arrangements translated into English on 2 December 2020

   [8] Tribunal case file 2100330

Should the visa be cancelled?

1. 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).

2. 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.[9]  The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

   [9] section.109(1)(b) and (c) of the Act

·    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

·    any contribution made by the holder to the community.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might be relevant in any given case.[10] 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 applicant’s submission.

[10] MIAC v Khadgi (2010) 190 FCR 248.

1. The applicant claims that in or about the end of 2009 the applicant met Ms Tingting Chen, the daughter of his father’s business partner. They had a relationship until around July 2010. During this period, she would visit the applicant during the holidays. However, their families had a business dispute and as a result did not want them to remain in touch. Due to their families opposing their relationship and the distance between them, their relationship came under pressure and it ended in or about February 2011.

2. The applicant claims that they had no contact until mid-July 2011 when Ms Chen contacted him after she had broken up with her then boyfriend at that time. Under the influence of alcohol, the applicant and Ms Chen slept together a result of which she became pregnant.

3. In or about January 2012, Ms Chen’s family urged the applicant’s family for him to marry her to preserve her reputation. As a result, the applicant’s father arranged a simple wedding for the applicant and Ms Chen. The applicant’s evidence was that several of the applicants’ and Ms Chen’s family and friends attended the weeding. However, the marriage was not registered.  

4. On 6 April 2012, Ms Chen gave birth to their child, Master Caixiang Wendy. Ms Chen’s statement states that she did not want to have the child, but she was persuaded by the applicant’s mother and that the applicant’s parents would care for the child. After the birth of the child, Ms Cheng states that she returned to her studies because the applicant did not want her and that they were always separated.[11] Due to the distance between her school and the applicant’s parent’s home, Ms Chen would visit the child during her summer and winter breaks. The applicant continued his university studies and would only see the Ms Chen and the child on summer and winter break.[12]

   [11] Ms Tingting Chen’s Statement dated 19 April 2021

   [12] Applicant’s Statutory Declaration dated 2 December 2020

5. The relationship between Ms Chen and the applicant’s mother was strained as they. often quarrelled. In or about January 2013, Ms Chen led a group of people into the applicant’s parent’s house upon which a man accompanying her claimed that he was her classmate and the real father of the child. Ms Chen confirmed that the man was the child’s father and as a result she took the child from the applicant’s parent’s home. Ms Chen in her statement[13] confirmed that she took the child back to raise herself on the basis that the child was not the applicant’s son. The applicant and his family cut Ms Chen off believing that the child was not the applicant’s son. The applicant and his family came to Australia in or about 2013.

   [13] Ms Tingting Chen’s Statement dated 19 April 2021

6. In or about February 2016, the applicant returned to China to meet Ms Chen to seek a resolution but realised that he still loved her. They did not inform his parents of their meeting.   He returned to Australia but maintained contact with Ms Chen. The applicant graduated from Central Queensland University in November 2016.

7. In or about January 2017, the applicant returned to China to meet Ms Chen. Due to his family’s rejection of Ms Chen, they had low expectations as to there being any future to their relationship. In or about February 2017, the applicant was granted permanent residency. Around this time, Ms Chen informed the applicant that the child was in fact his.

8. In or about March 2017, at the request of Ms Chen, the applicant completed a paternity test which confirmed that the child was the applicant’s son. As a result, he claims that he realised she had never betrayed him and for which he felt guilty. He explained to Ms Chen that he would convince his parents to accept their relationship and requested Ms Chen to sign a custody transfer agreement for the child to come to Australia. In June 2017 the applicant and Ms Tingting were legally married.

9. The applicant claims that it was never his intention to deceive the Department. The applicant’s evidence to the Tribunal was that the documents were prepared by the family’s immigration agent on the instructions of his father. In any event, he states that when the 163 visa application was submitted, he had already broken up with Ms Chen and believed that he was no longer in a relationship with her.  He claims that there is no such thing in China as a de-facto relationship and marriage is only recognised once a marriage certificate is obtained.[14]  He submits[15] that when he lodged the 892 visa application, although he had resumed contact with Ms Chen, he was not in a permanent relationship with her as he did not believe there was a future with her due to his parent’s attitude towards her. In addition, he was not aware that the child was his at that time.

Breach of Section 101(b)

(a)Business Owner visa application June 2011

[14] Applicant’s Statutory Declaration dated 2 December 2020

[15] ibid

1. The applicant does not agree that he had not complied with section 101(b) of the Act in relation to the provisional Business Owner visa application in June 2011 because his relationship with Ms Chen had ended in February 2011. He disputes that he was engaged at the time of the application noting that his family were opposed to the relationship and that his father only reluctantly agreed upon Ms Chen becoming pregnant. Ms Chen in her statement[16] states that that no engagement ceremony was held despite claiming to the delegate that they had been engaged in August 2010.[17]  In any event, the evidence of Ms Chen and the applicant was that by February 2011 their relationship had ended. As such, based on the evidence provided to the Tribunal it finds that the applicant and Ms Chen were not engaged in July or August 2010.

   [16] Ms Tingting Chen’s Statement dated 19 April 2021

   [17] Delegates decision dated 11 January 2021 @ p.18.

2. In addition, the applicant claims that although they got back together and had a simple wedding, they separated due to family conflicts. His evidence was that when he was informed that Ms Chen was pregnant, he did not want to accept the fact as he could see his plans rapidly fading away. The applicant claims that marriage in January 2012 was not registered, which the Tribunal accepts. The applicant claims that there is no such thing as a de-facto marriage in China. As such, he states that they were not legally married and not in a defacto relationship. In any event, the evidence of both the applicant and Ms Chen is that the wedding ceremony was only for the purposes of maintaining the reputation of Ms Chen upon her becoming pregnant rather than any the acknowledgement of a real relationship between them. In addition, they both state that they resumed their studies separately and did not live in a mutual relationship but only seeing each other for the purposes of the child during summer and winter breaks.

1. Section 5CB of the Act provides that, for the purposes of the Act, a person is a de facto of another person if they are in a relationship with that person but not married and have a mutual commitment to a shared life to the exclusion of all others and that the relationship is genuine and continuing. In circumstances where the applicant’s evidence and the statement of Ms Chen’s[18] both claim that they lived apart, had returned to their studies and only had contact at summer and winter breaks, their relationship could not be described as a genuine and continuing one as required under the Act. Ms Chen explicitly states[19] that she returned to her studies and only had contact at summer and winter breaks because the applicant ‘did not want her.’  As such, the Tribunal finds that the applicant and Ms Chen were not in a de-facto relationship at the time of the Business Owner visa application being made.  

   [18] Ms Tingting Chen’s Statement dated 19 April 2021

   [19] ibid

2. Therefore, based on the applicant’s evidence and the documentation provided to the Tribunal, it accepts that the applicant was not in breach of section 101(b) in relation to the provisional Business Owner visa application by reason that he was not married or in a de-facto relationship with Ms Chen at the time of the Business Owner visa application being made in February 2011.

(b)   Business Owner visa application December 2015

1. The applicant does not agree that he had not complied with section 101(b) of the Act in relation to the provisional Business Owner visa application in December 2015 because he was not in a relationship with Ms Chen at that time. The applicant’s evidence is that  despite the birth of his son in April 2012, their relationship ended in February 2013 upon Ms Chen taking the child from his family and claiming that he was not the father and all contact being cut off between them. As such, he claims that he was not in a de-facto relationship or married at the time of the application in 2015 and believed that he was the father of the child. Ms Chen’s statement confirms that she had informed the applicant that he was not the father of the child for the purposes of getting the child removed from  the applicant’s parents. It appears that it was accepted the applicant was not the father as his parent’s gave up the child to Ms Chen upon being informed that he was not the father.

2. Based on the applicant’s evidence and the documentation provided to the Tribunal, it accepts the applicant’s evidence and finds that he did not have a wife or de-facto partner at the time of the Business Owner visa application in December 2015. As such, the Tribunal finds that he was not in breach of section 101(b) of the Act in relation to the provisional Business Owner visa application in December 2015.

(c)Failure to declare Child

1. The applicant accepts that he failed to comply with section 101(b) in the Business Owner visa application in relation to failing to declare that he had a child. However, he claims that he did not declare the child because he was not aware that it was his child at the time of the application. The applicant had been informed in or about January 2013 that the child was not his. He claims that it was not until the paternity test in 2017 that he was aware that the child was his. Based on the applicant’s evidence and the documentation provided to the Tribunal, it accepts that the applicant believed that the child was not his at the time of the application in 2015.  The Tribunal finds that the applicant failed to comply with section 101(b) of the Act in the Business Owner visa application by failing to declare that he had a child.

Breach of section 104 of the Act

1. The applicant accepts he did not comply with section 104 in the provisional Business Owner visa application by failing to declare that he had a child. He claims that because Ms Chen had taken the child from his parents and claiming that he was not the father, he had accepted and believed that he was not the father. He claims that if he believed that the child was his then he would have fought for custody of the child. In any event, the applicant accepts that he did not comply with section 104(3) of the Act upon becoming aware that he was the father of the child by failing to inform the Department of his child.  As such, the Tribunal finds that the applicant did not comply with section 104 of the Act by failing to disclose his changed circumstances in relation to his son.  

2. Nevertheless, the applicant’s evidence was that he was young[20] and immature at the time when he first had a relationship with Ms Chen. At that time, he had not thought of being married or starting a family. His only preoccupation was moving away from home for the first time and commencing his studies. His evidence was that his parent’s, in particular his mother, were a dominate force in his life and they were not happy with his relationship with Ms Chen. Given these circumstances, in particular his age and immaturity, it is perhaps understandable that the applicant did not provide details of his son and his relationship with Ms Chen. As such, the Tribunal places some weight on the applicant’s youth and immaturity in not proving the Department with details of his child pursuant to section 104 of the Act.

   [20] The applicant’s evidence was that he was approximately 20 years old at the time of the birth of his son in 2012.

3. 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

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 892 (State/Territory Sponsored Business Owner) visa.

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Notice 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.

8. Decision 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.

9. Cancellation 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.