【海量案例】ChX (Migration)  AATA 5XX2
Migration & Refugee Division
APPLICANT: Mr CHXX-KXX CHX
CASE NUMBER: 18XXX40
DIBP REFERENCE(S): BCC2018/11XXX30
MEMBER: Louise Nicholls
DATE: 13 November 2018
PLACE OF DECISION: Sydney
DECISION: The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Statement made on 13 November 2018 at 1:31pm
MIGRATION – cancellation – Subclass 417 Working Holiday (Extension) visa – incorrect answers – farm work – applicant never worked for purported business – issues with representatives – limited evidence – applicant did not attend hearing – decision under review affirmed
Migration Act 1958, ss 98, 99, 101, 102, 107, 109
Migration Regulations 1994, Schedule 8, Condition 8107, r 2.41
MIAC v Khadgi  FCAFC 145; (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant seeking review is a citizen of Taiwan and is 28 years of age .He was initially granted a Subclass 417 (Working Holiday) visa on 1 December 2016 and arrived in Australia on 8 December 2016. He applied for a 12 months extension of his visa while he was the holder of that visa and was granted the visa extension on 24 July 2017.
One of the requirements for the 12 extension is that the visa applicant must have completed three months of specified regional work. The applicant claimed that he had completed this work at a specific location.
On 19 June 2018 the delegate of the Minister for Immigration cancelled the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act) on the basis that on 24 July 2017 the applicant provided incorrect answers in his application for the extension of his Working Holiday visa. The delegate found that the applicant stated he had undertaken three months of specified work in 2017. The owner of the farm business for which the applicant had claimed to have worked subsequently advised the Department that the applicant had never worked for that business.
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act). The applicant provided a copy of the delegate’s decision record together with his application for review which was lodged on 21 June 2018.
On 15 October 2018 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 12 November 2018.
On 26 October 2018 the applicant requested that the Tribunal issue a summons to the Office of Migration Agents Registration Agency (OMARA) and he also advised he was making a Freedom of Information Request to the Department of Home Affairs. He further advised that he had withdrawn his instructions from his representative, AHL Legal . He subsequently provided the Tribunal with a Change of Contact details form in which he nominated himself as the person to receive further correspondence.
The applicant provided an email submission on 30 October 2018 in which he explained the circumstances of his application for an extension of his working holiday visa and he also advised he would endeavour to provide further information prior to the scheduled hearing date of 12 November 2018.
On 12 November 2018 he provided a number of documents, including:
Applicant’s written submissions.
Applicant’s statement made on 11 November 2018.
Visa Grant Notice 24 July 2017.
Notification of grant of Working Holiday visa (Subclass 417) stating the applicant’s visa was granted on 10 August 2017.
Visa Grant Notice 10 August 2017.
Visa Grant Fact Sheet.
Email from MurXXy WX and English translation. (undated)
Email from MurXXy WX and English translation 16 August 2017.
Email to Law Society of NSW and response 29 October 2018.
Email to OMARA and response 2 November 2018.
On 12 November 2018 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.
This matter has therefore been determined on the evidence available to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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.
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.
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?
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.
Notice of Intention to Consider Cancellation
The non-compliance identified and particularised in the s.107 notice was non-compliance in as set out below.
On 25 May 2018 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The notice advised the applicant that the delegate considered there had been non-compliance with s.101 of the Act which provided that a non-citizen must fill in his application in such a way that no incorrect answers are given or provided.
The delegate stated that the applicant had lodged an application for a Subclass 417 Working Holiday (Extension) visa on 24 July 2017 by using the Department’s online facility. As part of that application he completed an electronic application form and provided the following answers:
In response to the question “Have you undertaken specified work in regional Australia for a total of three months?” the applicant answered “Yes”.
Under the heading of “Details of specified work undertaken” he provided the following answers:
Start date 6 January 2017
End date 20 April 2017.
Under the heading “Declaration” and in response to the declaration “I am applying for a second Working Holiday visa and have done three months specified work on my first Working Holiday visa” the applicant answered “Yes”.
The delegate noted that, based on this information, the Departmental decision maker assessed that the applicant met the criteria for the visa including that he had worked the equivalent of at least three months full-time work in a specified occupation in regional Australia and on 24 July 2017 he was granted a subclass 417 Working Holiday(Extension) visa (Class TZ).
The notice then set out the information which indicated that those answers were incorrect. The delegate stated that on 2 November 2017 the Department received an email from the company owner of KX IrXXne and M IrXXne stating that they had never employed any visa holders under the ABN of KX and IrXXne, that is, 16193XXX642.
The delegate informed the applicant that based on this information he did not consider that the applicant has complied with s. 101(b) of the Act because when he lodged his application for the visa the answers he gave were incorrect.
He considered the answers to the questions were incorrect because the applicant claimed that KX and M IrXXne (ABN 16193XXX642) was the sole employer with whom he had undertaken specified work. However, KX and M IrXXne (ABN 16193XXX642) had advised the Department that the applicant never worked for them.
The applicant was invited to comment on the possible non-compliance by providing a written response why his visa should not be cancelled. The applicant did not respond to the invitation to comment. On 19 June 2018 the delegate cancelled the visa.
Evidence before the Tribunal
The applicant sought review on 21 June 2018. The only document provided with the application was a copy of the delegate’s decision record.
After the Tribunal invited the applicant to attend a hearing on 12 November 2018, the applicant’s representative, Mr BrXXn FXXg of AHL Legal wrote to the Tribunal and advised the applicant would not be attending the hearing but would provide documents before 5 November 2018.
On 23 October 2018 the applicant sent an email requesting that the Tribunal issue a summons to OMARA requesting production of all documents and records showing that ChXX HsXXng (MurXXy WX) is or was a registered agent. He also advised that he had made a Freedom of Information application with the Department of Home Affairs requesting production of documents in relation to the working holiday visa that had been cancelled by the Minister.
On 24 October 2018 the applicant’s representative wrote to the Tribunal providing updated instructions that the applicant would attend the Tribunal hearing on 12 November 2018, that he would attend without representation and that all future correspondence be directed to him at his email address. Mr FXXg advise that AHL legal would cease representation in this matter. A later email sent on 24 October 2018 stated that the applicant would not be attending the Tribunal hearing and that he asked the Tribunal to conduct the hearing without his presence and without the presence of his representative.
On 24 October 2018 the applicant wrote the Tribunal apologising for the confusion in the matter. He advised he instructed AHL to cease acting on his behalf and notified the Tribunal that he still intends to provide the Tribunal with further material including a statement and written submissions. He confirmed that he asked the Tribunal to issue a summons to OMARA and he also advised that he had made an FOI application to the Department of Home Affairs. He was concerned that he would not be able to provide documents by 5 November 2018 which is the date requested by the Tribunal. He also asked that the matter be determined on the papers.
The Tribunal wrote to the applicant and advised as follows:
A Tribunal hearing concerning the review of the cancellation of his Subclass 417 visa would take place on 12 November 2018.
If he wished to withdraw his previous authorisation for his representative to act he should complete the attached Change of Contact Details form.
That the Tribunal would not be issuing a summons to OMARA but indicated he could renew his request at the hearing scheduled for 12 November 2018.
If he wished to provide further material he should let the Tribunal know as soon as possible and if he needed further time to provide the material he should explain what the material is and how it relates to the decision. He could renew his request for further time at the hearing scheduled for 12 November 2018.
He was advised, for the avoidance of any doubt, that he was invited to attend a hearing on 12 November 2018 and that if he did not attend or did not provide any information prior to that date the Tribunal would proceed to make a decision on the material before it.
The applicant provided a completed Change of Contact Details form on 30 October 2018. He claimed that he was seeking further information regarding the grant of his working holiday visa and the registration details of MurXXy WX as MurXXy WX had prepared his visa application. He claimed that after the cancellation of his visa he found out MurXXy WX may have prepared the applicant’s visa application as an unregistered migration agent. He claimed he was completely unaware what evidence had been submitted to the Department of Home Affairs for his visa application.
On 12 November 2018 the applicant provided written submissions that the cancellation decision should be set aside for the following reasons:
The decision be set aside on the basis that the application for the extended Working Holiday (Temporary) (class TZ) subclass 417 visa lodged by ChXX-HsXXng WX (MurXXy WX)was invalid.
Alternatively that the decision be set aside and remitted with the direction that the application for the extended Working Holiday (Temporary) (class TZ) subclass 417 visa lodged by ChXX-HsXXng WX (MurXXy WX) was invalid.
Or any of the decision that the Tribunal deemed fit.
The applicant submits that it is an offence under the Migration Act for a person to give immigration assistance if that person is not a registered migration agent. He submitted that MurXXy WX provided immigration assistance by preparing and lodging a visa application for the applicant as an unregistered migration agent and was not an exempt person. He noted that this was a criminal offence under s. 280 of the Act.
The applicant submits that to accept a visa application illegally lodged by third party who is not a registered migration agent would defeat the purposes of the Act. He claimed that accepting an illegitimate visa application lodged by an unregistered migration agent as a valid visa application would be against public policy and the public interest.
The applicant also provided a statement made on 11 November 2018. This statement noted that the applicant had approached MurXXy WX to assist him in applying for an extended working holiday visa. On 13 July 2017 MurXXy WX sent him a message that held himself out as a registered migration agent. A copy of that email and a purported translation was attached to the statement.
The applicant claimed he was unaware when MurXXy WX submitted the second visa application as he was not informed. On 16 August 2017 he received an email from MurXXy WX saying the visa application was successful. Attached to the statement was the second visa grant document with instructions how to access the visa details. The applicant attached a copy of the email and a purported translation.
On 26 October 2018 the applicant sent an email to the Law Society of NSW asking whether MurXXy WX was a solicitor. The Law Society replied by saying that according to their records ChXX-HsXXng WX or MurXXy WX has not been admitted as a solicitor and has never held a practising certificate in New South Wales. On 1 November 2018 the applicant sent an email to OMARA asking whether ChXX-HsXXng WX or MurXXy WX was a registered migration agent. He received a response saying ChXX-HsXXng WX is no longer a registered migration agent and his registration expired in 2010. The applicant provided copies of these email responses.
The applicant obtained another copy of a notification of grant of the second working visa from another migration agent which he believes is the original copy. He realised that the first copy he obtained from MurXXy WX was different to the second copy and in particular the dates were changed from 24 July 2017 to 10 August 2017, transaction details were removed and the transmission method was an email sent to an unknown email address. He believes that MurXXy WX changed the details of the first copy when he forwarded it to the applicant on 16 August 2017.
Consideration of whether there was non-compliance as particularised in the notice.
Essentially, the applicant states that he was not aware of what information was provided with his application for the visa. He claims that the person who he had engaged to act for him must have provided the incorrect information to the Department. By inference, he claims this leads to a conclusion that he did not provide incorrect information.
Further he claims that the person who acted for him was not a solicitor, registered migration agent or any other class of person entitled to provide him with immigration assistance under the Act. He claims that this invalidates the application for the extension of his working holiday visa.
Under ss.101 and 102, non-citizens must fill in or complete their application forms and passenger cards in such a way that all questions are answered and no incorrect answers are given or provided.
For the purposes of these provisions, s.99 provides that information given by or on behalf of a non-citizen to the Department or a Tribunal in relation to the application is taken to be an answer in the application form, whether it is given orally or in writing.
The Tribunal has considered the evidence provided by the applicant and considers that it does not fully explain the circumstances of the relationship between the applicant and MurXXy WX, what advice was given by MurXXy WX, what information was provided to the applicant about his eligibility for an extension of a working holiday visa either by the Department or by MurXXy WX and what instructions were given by the applicant to lodge an application for an extended working holiday visa. These matters were not covered in the statement or submissions made by the applicant. Further the applicant did not attend the scheduled Tribunal hearing to expand on his statement or to answer questions which might have further elucidated the circumstances.
On the evidence available to the Tribunal, it is clear that MurXXy WX was engaged by the applicant to assist the applicant in applying for an extended working holiday visa. The applicant claims that he gave MurXXy WX instructions to assist him to make that application. It is not clear whether the applicant made that application himself on advice or whether MurXXy WX completed the application on his behalf. However, for the purposes of s.99 of the Act the Tribunal finds that the information in the application for the visa was given by or on behalf of the applicant. Thus it is taken to be an answer to a question in the non-citizen’s application form.
The applicant claims that he was not aware of the incorrect information that was provided in connection with his application for the visa. However, the applicant does not dispute that incorrect information, as particularised in the notice, was given in his application for the visa. That is,
The response to the question “Have you undertaken specified work in regional Australia for a total of three months?” where the applicant answered “Yes”., or
Under the heading of “Details of specified work undertaken” the provision of the following answers:
Start date 6 January 2017
End date 20 April 2017., or
Under the heading “Declaration” and in response to the declaration “I am applying for a second Working Holiday visa and have done three months specified work on my first Working Holiday visa” where the applicant answered “Yes”.
The Tribunal finds that the information in the application, as particularised, was incorrect information and was given by or on behalf of the applicant.
The Tribunal does not accept the submission that the Tribunal should find that the application for the working holiday visa was invalid. Quite apart from the limited evidence as to the circumstances surrounding the completion of his visa application, the Tribunal considers that even if MurXXy WX had exceeded his instructions this would not invalidate the application because s.98 of the Act provides:
Section 98 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.
Taking into account all the evidence before it, the Tribunal is positively satisfied that the information provided in the application for a subclass 417 Working Holiday(Extension) visa (Class TZ) was incorrect. For reasons set out above it considers that there was non-compliance with s.101(b) by the applicant described in the s.107 notice.
Should the visa be cancelled?
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).
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.
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  FCAFC 145; (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal notes that the NOICC issued by the delegate invited the applicant to comment on the possible non-compliance and also on matters relevant to the discretion to cancel his visa. There was no response to that invitation.
The applicant lodged a copy of the delegate’s decision with his application for review and the matters relevant to the exercise of the discretion were contained in that decision record. The Tribunal finds that the applicant would have been aware of the matters relevant to the discretion.
The applicant provided some information and documents to the Tribunal when he was invited to the hearing in October 2018. Those documents concerned his claim that the person acting for the applicant was not a migration agent and that the applicant was unaware of the contents of his application for the extension of his working holiday visa. He did not provide any other information relevant to the matters in r.2.41 or other relevant considerations.
The Tribunal has considered the prescribed factors set out in r.2.41 of the Regulations and the matters set out in PAM Guidelines the Tribunal but notes that there is little evidence to indicate that the Tribunal should exercise its discretion not to cancel the visa.
The Tribunal finds that the correct information is that the applicant has not undertaken the specified regional work which is a requirement for the extension of a working holiday visa and that the decision to grant the visa was based on the incorrect information.
The incorrect information was provided in the application lodged on 24 July 2017. The Tribunal notes that over 12 months has elapsed since the non-compliance. In the normal course of events the applicant’s working holiday visa would have ceased in July 2018.
There is no evidence before the Tribunal regarding the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; or other instances of non-compliance by the visa holder or any breaches of the law since the non-compliance.
The applicant has provided limited evidence regarding the circumstances in which the non-compliance occurred. He has provided evidence on the status of the person who he claims assisted him in making his application for the visa, and selected evidence to the effect that this person held himself out to be a migration agent and also, by inference, claimed that this “agent” had been responsible for providing incorrect information. The applicant claims he is not responsible for the incorrect information.
However, the applicant did not attend a hearing where his evidence could be tested and where he could have given a more complete account of these circumstances. He could have explained what instructions he gave to this person on whether he had completed three months of specified regional work which was one of the requirements for the grant of the visa. He could also have explained how, if he had not done the specified regional work, he could have met the requirements for the visa. As the Tribunal has only been provided with limited and selected evidence on these issues it is not satisfied, on the evidence before it that the applicant was unaware of the incorrect information provided in his application for an extension of his working holiday visa.
The applicant has made allegations that MurXXy WX provided him with immigration assistance in breach of the provisions of the Migration Act. This may be so, however, the applicant needs to take his complaint to the Department and OMARA for their consideration of whether the provisions of the Act have been breached. The Tribunal has considered the evidence regarding the “agents” unregistered status but does not consider that fact alone is a matter which outweighs other matters considered by the Tribunal as to whether to exercise its discretion.
There is no evidence before the Tribunal regarding the present circumstances of the visa holder and no evidence of any contribution made by the applicant to the community.
If the applicant’s visa is cancelled he may be subject to detention unless he voluntarily departs Australia. There is no information indicating that there are any consequential cancellations under s.140 of the Act, or any family members who would be affected by the cancellation and there is no claim or evidence indicating any breach of international obligations as a result of the cancellation.
The Tribunal finds that the applicant’s conduct in providing incorrect information in relation to an essential criterion for the extension of the working holiday visa is a significant factor in its consideration. Further there is little or no evidence of any countervailing factors which might indicate that the visa should not be cancelled.
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.
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
ATTACHMENT – Migration Act 1958 (extracts)
(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.
In this Subdivision:
application form, in relation to a noncitizen, means a form on which a noncitizen 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).
Completion of visa application
A noncitizen 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.
Information is answer
Any information that a noncitizen 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 noncitizen’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 noncitizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
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.
Visa applications to be correct
A noncitizen 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.
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 noncompliance; 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 noncompliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under subsubparagraph (A), there was noncompliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was noncompliance:
(A) give reasons for the noncompliance; 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 noncompliance 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.
Decision about noncompliance
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 noncompliance by the visa holder in the way described in the notice.
Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was noncompliance by the holder of a visa; and
(b) considering any response to the notice about the noncompliance 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.
 Statement of applicant Tribunal File 18XXX40 f. 63 p 1.