Zhao (Migration)

[2019] AATA 5009

Zhao (Migration) [2019] AATA 5009 (8 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Leiyan Zhao
Mr Hongbo Yu
Mr Mengqi Yu

CASE NUMBER:  1708946

DIBP REFERENCE(S):  BCC2016/1804014

MEMBER:Bridget Cullen

DATE:8 November 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 890 (Business Owner) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 08 November 2019 at 3:06pm

CATCHWORDS
MIGRATION – cancellation – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – incorrect information on application – applicant a director, owner and manager – change of circumstances without notifying Department – sale of property and change of address after legal proceedings by second applicant’s former business partner – change of circumstances form signed by applicant and posted by agent – form not received by Department – applicant’s obligation to ensure Department received form – factors for and against cancellation – third applicant’s education in Australia – court order leading to sale of property set aside on appeal – decision under review set aside for first applicant, no jurisdiction for second and third applicants

LEGISLATION

Migration Act 1959 (Cth), ss 101, 104, 107, 109(1), 140(1), 359A, 362A, 376

Migration Regulations 1994 (Cth), r 2.41

CASE

MIAC v Khadgi (2010) 190 FCR 248

Wu v Yu; Yu v Wu [2019] QCA 175

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 first named applicant’s Subclass 890 (Business Owner) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with s.101 and s.104 of the Act, namely, they did not advise the Department of the sale of a property, which formed part of the reason for the grant of the visa. 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. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The Tribunal originally set down the hearing for 9 August 2018, and a hearing invitation was sent to the applicant on 19 July 2018. On 20 July 2018, the Tribunal received a postponement request, due to mitigating circumstances and preparations for trial. Attached with this request, was an s.362A request, for the material before the Tribunal. The Tribunal granted the request on 24 July 2018, setting a hearing for 30 August 2018. The Tribunal partially released the requested material on 8 August 2018, due to the presence of an s.376 certificate, which stated that some material should not be released on public interest grounds.

5. On 21 August 2018, a request was received by the applicant, through their representative, to request further material, from the Department, which in their view, was relevant due to the material being relevant for the purposes of the visa application. The Applicant requested a postponement if the material was not received by 24 August 2018. The Tribunal, on 22 August 2018, requested the further material from the Department.

6. On 27 August 2018, the Tribunal postponed the hearing. On 25 September 2018, the Tribunal provided the material to the applicant.

7. On 22 January 2019, the Tribunal invited the applicant to a hearing on 25 February 2019 to give evidence and present arguments. On 4 February 2019, the Tribunal received a request from the Applicant’s representative to postpone the hearing so further documents could be obtained. The Tribunal refused this request, as the representative had ample time to make further requests to obtain the information.

8. The applicants appeared before the Tribunal on 25 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nathan Delaney, director of ACLG Lawyers, Mr Chris Templeton, applicant’s counsel and Mr Allen Fung, the applicant’s former Migration Agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicants were represented in relation to the review by Counsel, Mr Chris Templeton, Barrister-at-Law (Qld), instructed by solicitor, Mr Nathan Delaney, Director of ACLG Lawyers.  The representatives attended the Tribunal hearing, and made submissions on behalf of the applicant.

10. On 16 April 2019, the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The Tribunal provided a copy of the District Court decision of Wu v Yu & Ors [2018] QDC 169, which suggested that the property central to the matter was never solely owned. The Tribunal indicated that it may use the information contained in the District Court’s decision in the Tribunal’s consideration of the prescribed circumstances under r.2.41 of the Regulations.

11. A response was provided through the applicant’s representative on 3 May 2019, which has been considered by the Tribunal. The upshot of the response was that the District Court decision of Wu v Yu & Ors was being appealed to the Queensland Supreme Court of Appeal. On 6 September 2019, the applicants received a favourable decision in that appeal (Wu & Anor v Yu; Yu v Wu [2019] QCA 175). The time to consider any further avenues of appeal to the High Court has now passed, and the applicant has advised the Tribunal that there has been no appeal from the Queensland Court of Appeal’s decision by the other party.

12. 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

13. 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.

14. 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.

15. 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?

16. 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.104 (provided in full attached to this decision) in the following respects (extracted from the Delegate’s decision):

    “On 3 September 2014, Ms Leiyan Zhao (the visa holder) submitted an application for a class DF subclass 890 Business Skills - Business Owner (Residence) visa, with the assistance migration agent Fung Trounce McCart Pty Ltd (MARN: 0425221).

    As part of this application the visa holder completed a Form 1217 Business Skills Profile: Business Owner (Residence) form. The visa holder provided the following answers to question 13 of Part D of the form:

    To the question of 'Business name' the visa holder answered 'Auschina Investment & Trading Pty Ltd'.

    To the question 'What was/is your position/title in this business?' the visa holder answered 'Director.'

    In her application, the visa holder provided evidence of owning 30 shares in the company, Auschina Investment & Trading Pty Ltd (Auschina) (ACN: 143 849 905). ASIC documents were provided in the application, with the visa holder named as one of three Directors of the company.

    Financial activity statements of the company were provided, as well as statements of the visa holder's personal assets and liabilities, to indicate substantial financial investment in Australia and support her answers provided in the application form.

    The financial activity statements provided in the application showed that Auschina, operating as a 7-Eleven convenience store, had a turnover of approximately AUD$1.8million in the financial year ending in 2013 and AUD$2million for the financial year ending in 2014, excluding GST.

    As proof of holding personal assets in Australia, the visa holder provided documentation for the purchase of 14 Gagarra Street, Eight Mile Plains QLD under her husband's name, Hongbo Yu, to the value of $770,000 in April 2010.

    Based on the above information and having satisfied all relevant criteria, Ms Leiyan Zhao and her husband were granted the class DF subclass 890 Business Skills - Business Owner (Residence) visa on 4 August 2015. The purpose of this visa is to allow the visa holder to manage their business and investment activities in Australia.

    Since the grant of the visa holder's visa, the Department has received adverse information that the visa holder never assumed any managerial role in the company and had instead fraudulently obtained her visa by paying a substantial amount of money to be registered as a shareholder and director of Auschina.

    Upon receiving this adverse information, the Department conducted investigations and found that the visa holder was divested from Auschina, as shareholder and director on 5 October 2015.

    It has also come to the attention of the Department that the visa holder's property at 14 Gagarra Street, Eight Mile Plains QLD, was sold on 28 February 2015 under appointment of the Supreme Court of Queensland. This sale occurred during the processing of the visa holder's application for the class OF subclass 890 Business Skills - Business Owner (Residence) visa. Records indicate that the visa holder never reported the sale to the Department and that she now currently resides in a rental property.

    Based on the above information, I consider that the visa holder provided incorrect information in her application, specifically that she was never a director of Auschina. The visa holder's divestment as director and shareholder of this business so soon after the grant of her permanent visa indicates that this role was contrived for the purposes of the visa application and that she had no genuine intention of undertaking the role in question. Consequently I consider the visa holder's answer to question 13 of Form 1217, where she stated her position with the business as 'director', is incorrect.

    I further consider that, by selling the property at Eight Mile Plains prior to the grant of her visa without notifying the Department of the change in circumstance, the visa holder has failed to comply with section 104 of the Act.”

17. In the applicant’s written submissions dated 18 February 2019, the applicant describes the issues to be considered by the Tribunal in making a decision about non-compliance as two-fold – (1) Was Ms Leiyan Zhao a director of Auschina Investments & Trading Pty Ltd at the time she executed Form 1217 on 29 August 2014; and (2) Did Leiyan Zhao fail to provide notice to the Department of her change of circumstances, with specific reference to her change of address and assets?  The Tribunal agrees with the applicant that these are the issues requiring consideration in relation to non-compliance.

18. In relation to whether Ms Zhao was a director at the time of execution of the Form 1217, the Tribunal accepts that she was, as the Tribunal has been provided with a copy of an Australian Securities and Investment Commission Company Extract indicating that as at 30 August 2014, she had been a director, owner, and manager of Auschina Investments & Trading Pty Ltd for a period in excess of 14 months, having been appointed on 15 May 2012. 

19. The applicant continued in this role until more than 13-months following her visa application, until 5 October 2015. 

20. The applicant has provided evidence of her direct involvement in the day-to-day business operations of the 7-Eleven convenience store operated by Auschina Investments & Trading Pty Ltd.  This evidence includes a formalised loan agreement between Ms Zhao and Auschina, and ASIC company extracts. 

21. In her Statutory Declaration dated 18 February 2019, and in her oral evidence before the Tribunal, the applicant explained that she was routinely at the store, signed cheques, conducted stocktakes, reported to the franchisor, monitored stock levels, paid bills, and handled financial matters for the company including reviewing Business Activity Statements, superannuation, and other financial and taxation documents.  The applicant has provided a suite of the various financial documents she signed in the course of exercising her Director’s duties.

22. The applicant has provided Statutory Declarations from persons with whom she had dealings during the course of her directorship.  The Tribunal accepts that these references corroborate the evidence Ms Zhao has given about her involvement in the 7-Eleven business operated by Auschina Investments. 

23. In particular, the Tribunal is prepared to place some weight on the reference statement given by Mr Matthew Patterson, in his capacity as the District Manager, QLD, for 7-Eleven Stores Pty Ltd.  This statement dated 23 March 2015 indicates that Ms Zhao “performed her managerial duties such as handling shop management, supervising staff, and dealing with suppliers. Ms Zhao has been a pleasure to work with.”

24. There is no evidence before the Tribunal that would suggest that Ms Zhao was anything but an active director, and involved in the 7-Eleven Business.  She resigned from her role as director following a period of negative publicity in Australia relating to the manner in which 7-Eleven was allegedly conducting its employment practices.

25. Thereafter, her relationship with a man named Xingang Wu and his wife Yanyan Gao began to disintegrate.  Mr Wu had been a business partner of Ms Zhao’s husband, Mr Hongbo Yu. 

26. On 5 September 2014, Mr Wu commenced proceedings against Mr Yu and Ms Zhao in the Supreme Court of Queensland, alleging that he owned 60% of the property located at 14 Gagarra Street, and further alleging that Ms Zhao had borrowed nearly $200,000.00 from Mr Wu.

27. The Supreme Court made an Order on 3 October 2014 to appoint a trustee to sell the Gagarra Street property.  The property was sold on 30 March 2015 in accordance with the Order.  The Tribunal considers that, at this point in time, following the Order of the Supreme Court, Ms Zhao’s circumstances had changed, and she was obliged to inform the Department.  The applicant, at the time of the Supreme Court’s Order, could no longer be said to own the Gagarra Street property as she had declared on her Form 1217 Business Skills Profile: Business Owner (Residence) form.

28. The applicant says that she then, on 22 April 2015, attended the office of her Migration Agent, Mr Allen Fung, who was a Director of Fung Trounce McCart.  She says that she told Mr Fung of the change of circumstances, and he told her that she should fill out a form confirming the sale of the property and her change of address and provide it to the Department. The applicant says that she then filled out a Form 1022, which she signed on 22 April 2015. 

29. The Department says, in the decision record, that it did not receive the Form 1022. 

30. Mr Fung gave evidence that he put the Form 1022 in the post on the same day that Ms Zhao signed it. 

31. The Tribunal accepts that the Form 1022 was not received by the Department.  The Tribunal also considers that the applicant had a positive obligation to make certain, and confirm if necessary, that the Department did receive the Form 1022.  Whilst it may be inexpensive and readily accessible, good business practice with documents of importance mandates follow-up, beyond dropping an envelope into a Post Office Box. For example, had the Form 1022 been sent by registered post, there would be a record of receipt.

32. It is not necessary for the Tribunal to attribute any blame to either Ms Zhao or Mr Fung.  The Tribunal notes that in acting for Ms Zhao, Mr Fung owed her a duty of care.  That is not a matter that the Tribunal needs to involve itself in, and will leave any discussion about whether that duty of care was breached to Ms Zhao and Mr Fung.

33. As the applicant did not ensure that the Form 1022 was received by the Department, the Tribunal considers that there was non-compliance.  The obligation to notify the Department of any changes belongs to the applicant.  That obligation extends to making certain that the Department is so advised, meaning that the information is communicated in a manner which ensures receipt.

34. For these reasons, the Tribunal finds that there was non-compliance with s.101 and s.104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

35. 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).

36. 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 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

    ·     any contribution made by the holder 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 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.

38. There are a range of factors that collectively strongly suggest that the visa should not be cancelled.  Ms Zhao and Mr Yu’s son, Richard, is in his final year of high school at a prestigious private school.  He is performing well in school, and hoping to study medicine when he graduates in a few weeks’ time.  He has attended school in Australia since he was 8 years old. He does not have any written command of simplified Chinese, and speaks Mandarin at a conversational level only.

1. The Tribunal accepts that it would be incredibly challenging for Richard to commence University studies in China, having been educated in English, in Australia.  This is a factor that, considering the length of time the applicant and her family have been in Australia, weighs in favour of not cancelling.

2. Ms Zhao has provided evidence of bank records indicating that although Gagarra Street was sold following the Order of the Supreme Court, the 40% proceeds of sale that she was entitled to were deposited to an account and left untouched. Ms Zhao submits that she has continued to comply with the requirement that she have at least $250,000 of personal assets as part of the criteria for the Subclass 890 visa scheme. The Tribunal accepts that Ms Zhao made efforts to continue to comply with the visa criteria in this respect.

3. Although the Tribunal considers that Ms Zhao’s efforts to continue to comply weigh slightly in favour of not cancelling, the strongest factor in favour of not cancelling is the decision made by the Court of Appeal on 6 September 2019 (Justices Morrison, McMurdo, and Burns) in Yu v Wu, Court of Appeal proceeding 10252/18.

4. In a unanimous judgment, the Court of Appeal set aside the decision made on 24 August 2018 by the District Court, wherein Her Honour Justice Richards held that Mr Yu held 60% of the proceeds of sale of the property at 14 Gagarra Street for Mr Wu.  It would be fair to characterise this adverse decision as the pivotal factor in the Department’s progressing to cancel Ms Zhao’s visa.

5. Ultimately, the legal basis on which this adverse decision was made was held to be incorrect.  In the Court of Appeal decision, His Honour Justice McMurdo, with whom Justice Morrison and Justice Burns agreed) wrote:

   “….the evidence did not establish Mr Wu’s case upon any of the alternative legal bases which were pleaded. In my respectful opinion, the trial judge should have dismissed Mr Wu’s claim for a share of the proceeds of sale of the property.” (at paragraph [64]).

6. At the end of lengthy and protracted litigation, the Queensland Court of Appeal has accepted that Mr Wu did not have any equitable interest in the property at 14 Gagarra Street.  Consequentially, the information provided to the Department by the applicant about the ownership of the property was correct.

7. The Tribunal considers that this is a factor which very strongly weighs in favour of not cancelling the visa. The impact of the decision is such that the primary factor that led the Department to consider the applicant was obliged to notify of a change of circumstances, that is Mr Wu’s claim to a share of the Gagarra Street property, has been entirely unsubstantiated.   As indicated above, the time for Mr Wu to appeal from this decision has now passed, and the Tribunal has no evidence before it that any appeal has been lodged.

8. 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 not be cancelled.

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 890 (Business Owner) visa.

10. The Tribunal has no jurisdiction with respect to the other applicants.

    Bridget Cullen
    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.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

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

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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