1615984 (Migration)

1615984 (Migration) [2018] AATA 3204 (4 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1615984
MEMBER:David McCulloch
DATE:4 July 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 04 July 2018 at 4:40pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) visa – Incorrect information supplied to the Department – Known by other names – Undisclosed previous visa applications – Outstanding debts to the Australian government – Facial image comparison report – Member of a family unit – Child in Australia – Credibility issues – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 359A, 362A, 375A, 376,
Migration Regulations 1994 (Cth), Schedule 4, Public Interest Criteria, 4004, 4020
CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel [Mr A]’s Subclass 573 Higher Education Sector visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that [Mr A] failed to comply with s.101(b) of the Act by providing incorrect answers on his TU-573 Student visa application. The delegate further determined to exercise her discretion to cancel the visa under s.109 of the Act. A breach of s.101 provided the basis on which the visa may have been cancelled under s.109.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
[Mr A] was represented in relation to the review by his registered migration agent, who attended the hearing.
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
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.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 Tribunal hearing, the Tribunal indicated that it was inclined to be satisfied that the notice issued under s.107 was valid, and that there had been no submissions to date that the notice was not valid, but the Tribunal would hear any further submissions. No submissions were subsequently made that the s.107 notice was not valid.
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. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in the following respects:
Particulars of the possible non-compliance:
I consider that there has been non-compliance with the following section(s) of the Migration Act:
Section 101 - Visa application are to be correct, where:
s101 A non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are to be given
By operation of s99 of the Migration Act, 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 .
On 16 January 2014 your partner [Ms B] lodged a TU573 Higher Education visa application to an offshore post. You were included in this application as a member of her family unit. As part of the application, [Ms B] completed Form 157A - Application for a student visa. You completed Part B of Form 157A - To be completed only if you are a family unit member joining a student in Australia.
•Question 52 on page 14 asks, 'Have you been known by any other names? ' Your response was 'No.’
•Question 55 on page 14 asks, 'Have you ever used a different date of birth? ' Your response was 'No.'
On Part C of Form 157A - To be completed by all applicants
•Question 80 on page 18 asks, 'Have you or any other person included in this application previously applied for any type of Australian visa?' Your response was 'No.'
•Question 81 on page 18 asks 'Have you, or any other person included in this application, ever:
had an application for entry to Australia refused, or had a visa for Australia cancelled?' Your response was 'No.'
Question 92 on page 20 of Form 157A asks:
•'Have you or any member of your family unit included in this application ever: been removed or deported from any country (including Australia?); had any outstanding debts to the Australian Government or any public authority in Australia? '
Your response to both these questions was 'No'.
Based on the information [Ms B] and you provided on application form 157A amongst other considerations, you were granted a Class TU573 Higher Education visa on 6 February 2014, for which you are listed as a dependant visa holder.
Since the grant of the visa, information has been received by the department which alleged that you are also known another identity. The informant identified that you and [Mr C], DOB: [DOB 1] are the same person.
Departmental records indicate that [Mr C] DOB: [DOB 1], entered Australia on 7 July 2008 as the holder of a UC456 Business (Short Stay) visa. On 13 August 2008, he lodged an application for a XA866 Protection visa. The visa application was refused on 5 November 2008, as the delegate was not satisfied that he was a person who was owed protection under the Migration Act and Migration Regulations 1994. This decision was affirmed by the Refugee Review Tribunal on 2 June 2009.
To confirm whether these identities are related, facial images submitted on 8 September 2008 in relation to [Mr C]'s Protection visa application, and a photograph you submitted with your Student visa application on 16 January 2014, were referred to the Department's Identity Resolution Centre for facial comparison. On 13 September 2016 a Departmental Facial Image Comparison Specialist determined the following:
'In my opinion based on my examination, the person depicted in the images P1 and Q1 represent the same person.
I find this determination has confirmed the allegation that you hold or have held another identity, the identity being that of [Mr C], DOB: [DOB 1] .
I therefore consider that you have provided incorrect information on your Class TU573 application lodged on 16 January 2014.
Specifically, the incorrect responses relate to the following questions on Form 157A:
On Part B of Form 157A - To be completed only if you are a family unit member joining a student in Australia.
•Question 52 of page 14 asks, ' Have you been known by any other names? ' Your response was 'No '.
I consider your response of 'No' is incorrect as the correct response is that you have been known by the name [Mr C].
•Question 55 asks, 'Have you ever used a different date of birth?' Your response was 'No.'
I consider your response of 'No' is incorrect as the correct response is that you have also used the date of birth of [DOB 1] as [Mr C].
On Part C of Form 157A - To be completed by all applicants
•Question 80 asks, 'Have you or any other person included in this application previously applied for any type of Australian visa?' Your response was ‘No'.
consider your response of 'No' is incorrect as departmental records indicate that [Mr C] applied for a Protection visa on 13 August 2008 which was refused on 5 November 2008. You also applied and were granted a UC456 Business (Short Stay) visa on 16 June 2008.
•Question 81 asks 'Have you, or any other person included in this application, ever: had an application for entry to Australia refused, or had a visa for Australia cancelled? ' Your response was 'No. '
I consider your response of 'No' is incorrect as departmental records indicate that [Mr C] applied for a Protection visa on 13 August 2008 which was refused on 5 November 2008.
Question 92 of Form 167A asks
•'Have you or any member of your family unit included in this application ever: left any country to avoid being removed or deported?' Your response was 'No. '
I consider your response of 'No' is incorrect as departmental records indicate [Mr C] left Australia on 21 November 2009 on a Bridging Visa A, after your Protection Visa refusal was affirmed at the RRT on 2 June 2009.
'had any outstanding debts to the Australian Government or any public authority in Australia? ' Your response was 'No.'
I consider your response of 'No' is incorrect as departmental records indicate that [Mr C] has an amount of $3761 .00 outstanding to the Australian Government for a court debt incurred whilst in Australia .
Given this information, I consider that you have failed to comply with s101(b) of the Migration Act by providing incorrect answers in your TU573 visa application on form 157A. If you did not comply with section 101(b), your visa may be cancelled under section 109 of the Migration Act 1958.
The decision of the delegate dated 27 September 2016 indicates that the applicant answered ‘no’ in response to whether he agrees that there was non-compliance as set out in the s.107 notice. The reasons set out are summarised in the delegate’s decision as follows:
In his submission in response to the NOICC the visa holder's migration agent advised that his client denies that he has ever been known as[Mr C], DOB: [DOB 1] .
The Migration Agent included the following documents in the NOICC response to support the identity of the client as [Mr A]
(a)'School leaving certificate obtained in [year] at [age] from the school he studied'
(b)'Higher Secondary course certificate issued by the school in [year] after verification of student identity '
(c)'University degree issued in 2004 after considering his performance and student identity '
(d)'Passport given by Indian government after verification of identity. Passport is unique to each person/ individual' [issued [date] 2012]
(e)Police clearance certificate issued by India after verification of identity of the person '
(f)'PAN card tax file number issued after verifying his identity by income tax department in India'
(g)'Driving licence issued in 2012 after verifying his identity by Road Transport Authorities '
(h)'Marriage certificate issued by Registrar after verifying his identity in 2012 by the Registrar in the presence of other members and witnesses '
In the application for the student visa, the applicant claims to have been born on [DOB 2].
On the day of the Tribunal hearing, additional evidence was provided in relation to the applicant’s identity. He provided a life insurance policy, bank accounts statements, credit card statements (all from India) and Australian Taxation Office Notice of Assessments issued in the name of the applicant. The documents are all in the years 2012 and following. The applicant provided a copy of his wedding invitation for his wedding to be held in November 2012.
A copy of the original and certified copy was provided showing the applicant as a witness, with a facial photograph attached, on a sale deed, registered in India in April 2008. The applicant indicated in the hearing that he knew one of the ‘power agents’ who signed the deed, but the applicant could not explain to the Tribunal what a ‘power agent’ was. The applicant was able to name this person who signed the document consistent with this person appearing as a signatory on the document. The Tribunal notes that this is the only document with a photograph provided prior to the arrival of [Mr C] in Australia in 2008 that contains evidence pertaining to the applicant with the name of[Mr A]. The applicant indicated in the hearing that the photograph is of him.
Documents with s.375A certificate
On the Departmental file is a certificate issued under s.375A of the Act restricting the Tribunal’s disclosure of certain information on the Departmental file because it would be contrary to the public interest. This was on the basis that the information revealed the names of Departmental officers who had not consented to their names being released and that it provided information as to Departmental investigation methods.
However, in error, the Tribunal responded to a request by the applicant to release information in both the Tribunal and Departmental files by releasing all material without regard to the s.375A certificate.
There was discussion with the applicant in the hearing in relation to the report of the Department’s Facial Image Comparison Specialist dated 13 September 2016 which was otherwise subject to the certificate (folios 64–65 Department file).
The Tribunal comments that this more extended version of the Facial Image Comparison Report not subject to the s.375A certificate (folio 81 Department file) details specific aspects of facial characteristics to support the conclusion that the photographs are of one and the same person. The Tribunal discussed with the applicant in the hearing these claimed similarities which included:
·the shape and asymmetrical angle of the ears
·the shape and angle of the eyes
·the size and shape of the nose
·the shape and width of the mouth
·the shape of the face, cheekbones and chin
·corresponding facial and neck folds.
The applicant, in the hearing, agreed that one of the photographs analysed by the Facial Image Comparison Specialist (folios 64–65 Department file), which the Tribunal showed to the applicant in the hearing, was of him, being the photograph provided as part of his student visa application. The applicant indicated that it was a wedding photograph. The applicant indicated that the other photograph of [Mr C] lodged as part of his protection visa application is not him. This photograph shows [Mr C] as bald compared with the other photograph which shows a person (the applicant) with hair, and the applicant said he has never shaved his head. The applicant said that, culturally, a head is shaved when a relative or close friend dies and the applicant indicated that he had never shaved his head for such a reason.
Document with a s.376 certificate
The decision of the delegate cancelling the applicant’s visa indicates that, since the grant of the visa to the applicant, the Department had received information that the visa holder has held another identity, namely that of [Mr C], date of birth [DOB 1]. On the Departmental file is a ‘Job Details Report’ subheaded ‘identity fraud’ (folios 54–60 Department file) This indicates a named individual as the source name, with the date of the allegation being received on [date] by email. It is indicated that the source type is ‘Local Government’.
There is, however, no further information on the Departmental file containing more detail of the allegation. In particular, the Departmental file does not contain the email from the named source dated [date].
The Tribunal requested in writing that the Department provide the email dated [date] from the named source referred to as well as any other details concerning the allegation that the applicant had another identity.
In response, the Department provided a notice from the named individual, being an analyst with the Customer Liaison and Document Verification section of the [State 1] Department of [Transport]. It contains content mostly repeated in the Job Details Report of the Department of Immigration referred to above. It refers to the applicant and [Mr C] and requests that the Department of Immigration check records to see whether the two identities are linked. It indicates that disclosure of this information is required for the investigation of offences under various road transport legislation including an offence of obtaining a driver’s licence by false statement.
In providing this document to the Tribunal, the Department issued a Certificate under s.376 indicating that the disclosure of this information would be contrary to the public interest because it may disclose lawful investigative techniques, the release of which could hamper future law enforcement practices. Section 376 gives the Tribunal the discretion to disclose the information to the applicant or any other person.
In the hearing, the Tribunal discussed with the applicant this notice indicating that the [State 1] Department of Transport was asking the Department of Immigration about linkages to the applicant and the other identity for the purpose of the investigation of offences. The Tribunal indicated that this information was substantially the same as that contained in the Job Details Report which had already been provided to the applicant, albeit in error. There is no information materially relevant in the information the subject to the s.376 Certificate that is not contained in the Job Details Report provided to the applicant.
The Tribunal asked the applicant whether he had obtained a driver’s licence from the [State 1] government and if there was any problem in its issue raised by the [State 1] Department of Transport in obtaining that license. The applicant indicated that he obtained his licence, he believes, in 2016 and there were no issues in obtaining it.
The Tribunal asked the applicant if he had the licence with him, and he indicated that he did not. The Tribunal asked the applicant to provide a copy of the licence following the hearing, which the applicant agreed to do. Following the hearing a [State 1] driver’s licence in the name of the applicant, due to expire on [date], was provided.
Assessment
The Tribunal considers the following matters as indicating that the applicant was previously known as [Mr C], a person who had previously entered Australia in 2008 and with the history, including the immigration history, described in the s.107 notice. The Tribunal has credibility concerns with the applicant’s claims to have never held this previous identity.
Firstly, a Departmental specialist has provided an opinion that relevant photographs of the applicant and [Mr C] indicate the same person.

The information before the Tribunal is a Facial Image Comparison Report by a Facial Image Comparison Specialist of the then Department of Immigration and Border Protection dated 13 September 2016. The report compares the images, based on facial recognition, of two individual’s faces from photographs. One of the photographs (Q1) was acknowledged by the applicant in the Tribunal hearing to be of himself, taken at his wedding. It is clear from other information that this is the photograph of the applicant used in his application for a student visa (as a dependant). This was the visa granted to the applicant and used to facilitate his entry into Australia in 2014. The other photograph (P1), as indicated in other information, was used by a [Mr C], who had entered Australia on a visa in 2008 and who subsequently applied on 8 September 2008 in Australia for a protection visa which was refused, resulting in the departure of [Mr C] from Australia.
The Facial Image Comparison Report concludes that, based on the opinion of the specialist, the persons depicted in the two images ‘represent the same person’. This is based on an examination method which provides for four levels of opinion. The opinion of the specialist represents the highest level of certainty that the individuals are the same.
As indicated above, the specialist bases the conclusion on the following similarities between the two photographs:
·the shape and asymmetrical angle of the ears
·the shape and angle of the eyes
·the size and shape of the nose
·the shape and width of the mouth
·the shape of the face, cheekbones and chin
·corresponding facial and neck folds.
The Tribunal notes that the similarities in features identified were done so in relation to six different features of the faces in the two photographs, which strongly tends to suggest, in the Tribunal’s view, the veracity of the opinion of the specialist.
The Tribunal wrote to the applicant following the Tribunal hearing pursuant to the procedural requirements of s.359A of the Act. The Tribunal indicated that the information indicated above is relevant to the review because the Tribunal could give significant weight to the Facial Image Comparison Report in concluding, in combination with other factors, that the applicant and [Mr C] are the same person. It could indicate, contrary to the indication by the applicant, that the applicant had previously held the identity of [Mr C], and had entered Australia as indicated in the s.107 notice in 2008, had had a protection visa application refused, and owed a debt to the Australian Government.
The Tribunal indicated to the applicant that if it were to rely on this information in its decision the Tribunal may agree with the finding of the delegate cancelling the applicant’s student visa that the applicant had filled out his application for the student visa contrary to a requirement in s.101(b) of the Act that ‘no incorrect answers are to be given’ in the way described in both the s.107 notice and in the cancellation decision, and had a debt to the Australian community, such that the ground of cancellation is made out.
The consequence of relying on this information would be for the Tribunal to find that the applicant had fraudulently assumed the identity of [Mr A] after his return to India in 2000, in order to facilitate re-entry to Australia, which otherwise may have incurred hurdles because of [Mr C]’s previous situation in Australia.
In the written response, the applicant provides a copy of a Facial Image Comparison Report dated 8 September 2016. The written response indicates that this report is qualified with the statement:
The images displayed one or more issues related to image quality including, but not limited to, lighting, subject to camera distance, security features and compression artefacts. This limited the comparison process.
The response also refers to the report by [Dr D], discussed below. It submits that the s.359A letter needed to point out the limitations referred to in the specialist’s report.
The Tribunal notes that the report indicated in the response is not the Facial Image Comparison Report referred to in the s.359A letter. The report referred to in that letter is a later report dated 13 September 2016. The report the applicant’s representative has referred to only indicated that there are indications that the images represented the same person, rather than an opinion that they did represent the same person. The report dated 8 September 2016 contains the same photograph of [Mr C] as the report dated 13 September 2016, but contains a different, and clearer, photograph of the applicant.
The later report of 13 September 2016 contains the specialist opinion that the photographs represent the same person, being the highest category of similarity, as compared to the earlier report which indicates that there are only indications that they represent the same person. The later report does not contain the qualifications referred to by the applicant’s representative that exist in the earlier report, other than that this report is not for court purposes.
The applicant provided in the hearing, and referred to in the response to the s.359A letter, a report by [Dr D], [University 1] dated 20 December 2016, on the letterhead of [University 1] Expert Opinion Services. This seeks to comment on the veracity of the opinion of the specialist based on a truncated version of the report of 13 September 2016, referred to above (folio 81 Department file). The truncated version fails to identify the six similar features identified between the photographs. Details encompassing the more extended version of the report were put to the applicant under the procedural requirements of s.359A.
A submission by the applicant’s representative received at the hearing dated 8 May 2018 makes reference to this truncated report. It indicates that the specialist did not explain their professional background or expertise or indicate the scientific procedures used to identify and come to their conclusion. The Expert Opinion states that the comparison has not been scientifically validated. It indicates that the report (contrary to the extended report referred to) does not state what types of similarities were noted in the images and does not state what process of comparison was utilised. The report states that it is not for court purposes.
It is stated that the applicant was not provided with any more than the two pages of this report which contains only limited details. This is not correct because, as indicated above, the more detailed report referred to above had been erroneously provided to the applicant in response to the s.362A request for information. Key additional details in the more extended report were put to the applicant in writing pursuant to s.359A of the Act.
The representative submits that the facial comparison report of the Department cannot be relied upon.
The Tribunal notes that the report of [Dr D] refers to research which indicates that there are high inaccuracy rates in facial recognition by those who are untrained. There is a reference to there being limited research as to the accuracy of the assessments by trained facial forensic examiners, although acknowledging that such comparisons are more accurate, but with research indicating that errors still do occur.
The Tribunal takes note of the assessment by [Dr D] and the submissions of the applicant’s representative. The Tribunal accepts that even trained examiners can make errors and that the training of the specialist is not clear. Nevertheless, the more extended report refers to similarities between six different facial features which reinforces, in the Tribunal’s view, the opinion of specialist that the two individuals are the same person.
Although not an expert an expert in facial recognition, the Tribunal Member considering this matter formed the view that the two photographs very likely represented the same person, considering that it would be an extraordinary coincidence if they were not the same person, given the readily apparent same features in the six features identified.
Notwithstanding the issues raised by [Dr D], the Tribunal gives the Facial Image Comparison Report a significant degree of weight.
Secondly, the applicant failed in the hearing to provide key information about his claimed Bachelor [degree]that was consistent with documentary evidence provided by the applicant of his qualifications. Further, when lack of consistency was pointed out to the applicant in the hearing, he gave contradictory and implausible explanations for the inconsistency.
The applicant provided a copy of his degree in his current identity under the seal of [University 2] dated 20 October 2005. It indicates the applicant obtained the degree culminating in an examination held in 2004 and placed in the ‘second class’.
In the hearing, the Tribunal asked the applicant what level of degree he received. After initial confusion by the applicant in understanding what the Tribunal meant, the applicant asked whether the Tribunal was asking whether he received a first, second or third class degree, and the Tribunal indicated that it was. In response, the applicant indicated that he obtained a third class degree.
The Tribunal pointed out that the documentary evidence provided by the applicant indicated that he obtained a second class degree. In his initial response, the applicant indicated that this was because he, in fact, failed and had to repeat subjects which meant his degree was third class. The Tribunal noted to the applicant that he had provided the certification of his degree and it would expect this would not been issued until everything relating to it was finalised, and the Tribunal did not understand why the degree says second class yet the applicant says his degree was third class. The applicant then gave a different explanation that when going for jobs he had to say that he had a third class degree, rather than a second class degree. The Tribunal indicated to the applicant that it did not understand why this was the case. The applicant said that even though the certificate says second class, because he failed and repeated, he had to actually indicate it was third class.
Following the hearing, transcripts were provided of the [degree discipline] examination results of [Mr A] indicating a number of subjects failed and subsequently cleared in the next semester as demonstrating that the applicant was considered to have obtained a third class (an inferior class) degree.
The Tribunal does not accept the tortured and implausible explanation of the applicant in the hearing, nor is the Tribunal persuaded by the academic results provided by the applicant following the hearing. The Tribunal considers that the certificate of the degree provided by the university would reflect the actual class of degree awarded and which he would be able to publically indicate. The Tribunal considers that the class of the degree obtained by an individual would be a significant result which a degree recipient would not ordinarily fail to remember or be confused about. The failure of the applicant to correctly indicate the class of the degree he obtained and his implausible explanation for his inability to do so is undermining of his claim to have been the person to have undertaken the Bachelor [degree] in the name he currently holds.
This supports the contention that the applicant previously held the identity of [Mr C] and adopted his current identity in India based on fraudulent documents or the applicant adopting the identity of another person after returning from Australia in 2009.
Thirdly, the applicant has had no work experience consistent with him holding a Bachelor degree or consistent with the speciality of his degree. In the hearing, the applicant referred to working following his degree only in odd jobs in India, including as a driver and as a salesman. The applicant indicated that this was because there were many people with degrees and few jobs, and because of the location of the applicant. The applicant also indicated that he had no experience. In relation to the latter, the Tribunal noted to the applicant that entry-level jobs are part of the economy (without entry-level jobs no person with academic qualifications but without experience could obtain a job).
The Tribunal asked the applicant whether he had obtained in Australia any employment commensurate with his qualifications. The applicant indicated that he had not. He indicated that he worked in [an occupation]. He indicated that his degree was not recognised in Australia and he had had no relevant employment in India.
Written information was provided by the applicant following the hearing concerning this issue. Media reports were provided from 2014 and 2017 indicating a large number of engineering graduates in India, many of whom do not obtain related employment, including in the IT sector. One report indicates that 60% of engineering graduates are unemployed. Another report from 2017 indicates 82,000 people in Tamil Nadu state as unemployed and significant youth unemployment in that state.
Whilst the Tribunal can understand the competitiveness of the job market, it has some concerns about the failure of the applicant to undertake any type of employment consistent with him holding a [University degree]in the 13 years since he obtained his degree. The applicant did not respond to questions concerning his employment that demonstrated any significant effort in seeking employment commensurate with his qualifications.
This is a factor which undermines the applicant’s claims to hold qualifications at a degree level in his claimed field. This undermines claims that the applicant has always held his current identity consistent with his claimed educational qualifications.
In seeking to establish his identity over time as the applicant, the applicant provided to the Department various documents pertaining to him. The Tribunal notes that the only documents which contain photographs of the applicant, with the exception of the deed discussed below, are dated after the period in which [Mr C] entered Australia. Given that the applicant may have made arrangements to ‘acquire’ the identity of the applicant complete with relevant records, the Tribunal gives the documents provided by the applicant to the Department little weight in his favour.
The applicant has provided one document to the Tribunal which shows a photograph of a person that the applicant says is him showing the applicant being a witness to a deed. The Tribunal gives this document a degree of probative weight in indicating that the applicant has always held his current identity.
The Tribunal considers these three credibility issues cumulatively. As indicated, the Tribunal gives the Facial Image Comparison Report significant weight in its assessment that the two individuals represent the same person. That, combined with the second and third matters referred to, cause the Tribunal to be satisfied has not always held his current identity and previously held the identity of [Mr C]. Based on the information set out in the s.107 notice and the decision of the delegate, the Tribunal is satisfied as the circumstances of [Mr C] in Australia as set out.
In addition to the first issue, the Tribunal finds the second credibility factor above significant in determining that the applicant has not been candid as to his past claimed educational qualifications, consistent with the applicant not always having the identity and past claimed. The third matter is given only limited adverse weight given evidence of difficulties for graduates in India, but it does buttress more significant issues.
Whilst the Tribunal has taken into account the document provided by the applicant with a claimed photograph of him prior to the arrival of [Mr C] into Australia, that does not overcome the cumulative impact of the credibility issues identified, given the potential for documents to be doctored.
The impact of the three credibility issues, considered cumulatively, result in the Tribunal finding that the applicant previously held the identity of [Mr C] and having previously entered Australia as set out in the s.107 notice. The Tribunal finds that the applicant, when holding his original identity, had shaved his head at the time of applying for his protection visa in the name of [Mr C].
The Tribunal is satisfied that [Mr C] applied for and was denied a protection visa and left Australia in the circumstances described and having a debt to the Australian government. The Tribunal is therefore satisfied that the applicant provided multiple incorrect responses to questions asked in the visa application that lead to the applicant’s current entry to Australia, as set out in the s.107 notice.
The Tribunal has made this determination considering the following. The Tribunal acknowledges that the [State 1] Department of Transport appears to have granted the applicant a driver’s licence notwithstanding its query to the Department of Immigration asking for comment on whether the two identities were linked. The Tribunal acknowledges that the request from the Department of Transport to the Department of Immigration was not an allegation as such, but merely a request for an opinion. There is no indication as to what information the Department of Immigration provided to the [State 1] Department of Transport in response. Notwithstanding these issues, the Tribunal remains satisfied that the applicant held the previous identity claimed based on the credibility factors identified.
The Tribunal is therefore satisfied that the applicant breached s.101(b) of the Act thus enlivening the ability of the Minister to cancel the applicant’s visa under s.109(1) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way 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 (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 considers that the correct information would have been that the applicant had held a previous identity which he had used to travel previously to Australia. The correct information would have been that the applicant using this identity applied for a protection visa which was unsuccessful, including upon administrative and judicial review, and that the applicant subsequently left the country, with a debt owing to the Australian Government.

The content of the genuine document is not relevant in this case.
The applicant’s representative has made submissions as to whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document. It is submitted that, on the assumption that there was incorrect disclosure, the matters do not constitute ‘material particulars’ as required under PIC 4020.
The Tribunal disagrees that the potential misleading information was not material to the decision to grant the visa because PIC 4020 requires that identity be satisfied. In an event, as noted in the delegate’s decision, PIC 4004 requires that an applicant not have outstanding debts to the Australian Government. As indicated, [Mr C] had had substantial debts outstanding in relation to review of the prior protection visa application. The representative submitted that these alleged debts need to be weighed against the substantial funds disclosed by the substantive applicant for the student visa, and the applicant’s partner. The Tribunal considers that funds available to the applicant and his partner are irrelevant to the fact of monies owed to the Australian government by the applicant remaining unpaid. The Tribunal considers that the visa was granted on the basis of incorrect information.
The Tribunal considers the circumstances in which the non-compliance occurred. The Tribunal considers that the most likely explanation for the non-compliance is that the applicant fraudulently changed his identity to avoid examination by the Department of the circumstances of the applicant’s prior visit to Australia to avoid the possible denial of a visa to facilitate re-entry into Australia.
The Tribunal considers the present circumstances of the applicant (and his family). The applicant and his wife have been in Australia for over three years. The applicant indicated in the hearing that he is still married and together with his wife, [Ms B]. The applicant indicated that, in Australia, his wife has completed a Bachelor [degree]. She currently holds a 485 graduate visa. The applicant indicated in the hearing, and provided evidence, of he and his wife having a child on [date]. The applicant indicated that the intention is for his wife, together with him and his child, is to progress on a pathway to permanent residence. The applicant indicated that, if his visa remains cancelled, then he and his wife will split up, given his need to return to India. This is because his wife, and on behalf of the child, made the decision to stay in Australia irrespective of what happens to the applicant. This will be a very considerable hardship for the applicant being separated from his wife and his child.
The applicant is, as indicated, working in [an occupation]. The applicant indicated in the hearing that his wife is not currently working. The applicant’s representative submitted that the applicant has been a productive member of society and provided a copy of his tax assessments for the last four years.
These facts are determined more fully in consideration below as to compelling reasons that the applicant has to remain in Australia, and the hardship to him and his family if his visa remains cancelled.
The Tribunal accepts that the applicant and his wife are in a genuine relationship and have a child. The Tribunal has some scepticism that the applicant’s wife would allow the family unit to be split up and that she and the child would not return to India if the applicant had to return to India. Nevertheless, the Tribunal accepts that the applicant’s wife has fulfilled her study obligations and is currently in Australia on a graduate visa, with an intention and a desire to progress on a permanent pathway to residence for herself and her family. The Tribunal accepts a very considerable hardship to the applicant’s wife if she had to return with her husband to India prematurely. This is on the basis that she has obtained educational qualifications in Australia and is on a pathway to obtaining permanent residents. The Tribunal also considers that it would be a significant hardship to the applicant’s wife if she made the decision to stay in Australia while her husband was obliged to return to India.
The applicant in the hearing indicated that employment options for his wife would be more limited in India. Whilst the Tribunal accepts that employment opportunities for the applicant’s wife would be more advantageous in Australia, it is not persuaded that the applicant’s wife would not be able to obtain professional employment in India consistent with her degree obtained in Australia.
The applicant indicated that hardship if he has to return to India is inferior medical treatment following on from [surgery] in Australia.
The Tribunal accepts considerable hardship to the applicant, his wife if the applicant’s visa remains cancelled.
Apart from the original breach, applicant has not acted in any detrimental way in terms of his obligations under Subdivision C of Division 3 of Part 2 of the Act.
The Tribunal does not have evidence that there are other known instances of non-compliance by the applicant or of breaches of the law since the non-compliance.
There is no evidence that the cancellation of the applicant’s visa will result in the consequential cancellation of other visas.
In terms of the contribution by the applicant to the community, the applicant’s representative submitted that the applicant, during his free time, visits [a temple] and does activities in relation to cleaning and upkeep of the Temple. In the hearing, the applicant referred to volunteer work in Australia and India. The Tribunal is prepared to accept this community activity of the applicant.
In terms of the legal consequences of cancellation, it has been submitted by the applicant’s representative that the cancellation resulted in the withdrawal of the applicant’s 485 dependent visa application on the basis that a police clearance was required based on an earlier identity.
The Tribunal acknowledges that if the visa remains cancelled the applicant will become an unlawful non-citizen and could potentially be detained. The Tribunal is satisfied that the applicant would be able to apply for a Bridging visa to make his status lawful whilst he makes arrangements to exit the country. The Tribunal acknowledges that if the visa remains cancelled there will be exclusion periods in the applicant’s ability to apply for other types of visas onshore. There may also be exclusion periods in the applicant’s ability to apply for visas to enter Australia offshore.
There is no evidence that the applicant faces a real chance of serious or significant harm on return to India that would enliven Australia’s non-refoulement obligations.
Submissions have not been made in relation to the applicant’s child. The child will be an Indian citizen given that he was born to parents of Indian nationality in Australia. The Tribunal would not be satisfied that it would be contrary to the best interests of the child that he grow up and live in India, the country of his nationality and that of his parents. The Tribunal considers that any decision in relation to the applicant’s wife and child, either remaining in Australia or returning to India, if the applicant is required to leave, will be made in the best interests of the child.
The Tribunal does not consider any other factors of material relevance including the time elapsed since non-compliance.
The Tribunal balances all relevant factors. As indicated, the Tribunal is satisfied that the applicant came to Australia on the previous identity alleged in the s.107 notice with the events and actions as claimed in the s.107 notice. The Tribunal considers that the applicant obtained a new identity in India significantly for the purpose of gaining re-entry into Australia. The Tribunal considers that there are very strong policy grounds for the Government cancelling the applicant’s visa granted in such circumstances, on the basis of a fraudulently assumed identity. The Tribunal acknowledges the very significantly detrimental impact to the applicant, as well as potentially his wife, in having to return to India when they would wish to continue their stay in Australia and progress on a pathway to permanent residence. The scenario of the applicant wife and child staying in Australia with the applicant having to return would be a serious hardship the applicant and his family. The Tribunal accepts the community work undertaken by the applicant and other factors referred to in this decision in his favour.
In the circumstances, the Tribunal has formed the view that the visa should be cancelled because of the very significant nature of the breach notwithstanding the hardship to the applicant and his family, and other factors identified in the applicant’s favour. The Tribunal considers there would need to be highly compelling countervailing factors that would lead to the Tribunal reinstating the visa notwithstanding the serious nature of the breach. Such high level countervailing factors are not present in this case, notwithstanding an acknowledgement of the significant hardship to the applicant and his family.
Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
David McCulloch
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of the person; or
(b)    is counterfeit or has been altered by a person who does not have authority to do so; or
(c)    was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)    giving particulars of the possible non‑compliance; and
(b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)    stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)    setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)     requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)    otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)    visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)    considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)    having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2018] AATA 3204

4 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice