1927352 (Migration)

1927352 (Migration) [2020] AATA 5109 (21 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1927352

MEMBER:Antoinette Younes
DATE:21 September 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 21 September 2020 at 12:34pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information – bogus document – counterfeit or altered family registration certificate – brother living in Australia – migration agent completed the application form – brothers not listed on certificate – family ties to Australia – gaps in studies – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.41
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 the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with ss.101(b) and 103 of the Act. 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 26 August 2020 to give evidence and present arguments.
The applicant 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.
SECTION 376 CERTIFICATE
The Departmental file contains a s.376 certificate on the basis that documents subject to the certificate were given to the Department in confidence.
Documents or information may be subject to a non-disclosure certificate if they were given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence. Whether a document has the necessary quality of confidence required for s.376 is a matter for the Tribunal to decide on its merits. For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or Departmental officer by an external source or third party with the expectation that the material would be treated as confidential and would not be disclosed, and that the information is not public or common knowledge.
The information subject to the certificate relates an application for a protection visa made by a third party. Protection visa applications, any claims made, reasoning and outcomes are confidential. In the course of the hearing, the Tribunal discussed the s.376 certificate and advised the applicant that the Tribunal considered the certificate to be valid as it relates to a protection visa application made by a third party. The Tribunal advised the applicant that if relevant, aspects of that information may be discussed with the applicant during the hearing in accordance with s.359AA.
When invited to make submissions relating to the Tribunal’s consideration of the certificate, the applicant advised that he does not have concerns about the Tribunal’s determination that the certificate is valid.
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 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.
The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101 and 103 of the Act.
Section 101 provides:
Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
Section 103 provides:
Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
In the course of the hearing, the Tribunal discussed with the applicant information before the Tribunal indicating the following:
1)    On 31 July 2016, the applicant lodged an application for a student visa subclass 500 and as part of the application, he provided answers to questions in the application form. Relevantly, on pages 5, 6 and 7 of the application, the applicant indicated that he had parents and siblings outside of Australia. He indicated that:
·His father’s name is [name], date of birth [specified], residing in [Country 1].
·His mother’s name is [name] born on [specified date] and residing in Pakistan.
·He has two sisters, named [Sister A] and [Sister B] born on [respective dates], and residing in Pakistan.
·His brother’s name is [Brother A], born [date] and residing in Pakistan.
2)    On pages 14 and 15 of the application form, under Declarations, the applicant declared that he had provided complete and correct information, that he understood that any fraudulent documents or false or misleading information could lead to a refusal and being subject to an exclusionary period, and that if documents were found to be fraudulent or information to be incorrect after the grant, the visa could be cancelled.
3)    In support of the application, the applicant provided documents including a document with a Family Registration Certificate (FRC) [number], issued by the government of Pakistan National Database and Registration Authority (NDRA) [in] June 2016, referring to the applicant’s name as [the applicant’s mother], citizen [number], document number [same FRC number], family members six, comprising of [the applicant’s father], date of birth [specified], [his mother] born on [specified date], [Sister A] born on [date], [Sister B] born on [date], as [Brother A], born on [date], and as [the applicant], born on [date].
4)    The subclass 500 visa was granted on 25 November 2016 and the applicant arrived in Australia [in] December 2016.
In accordance with s.359AA, the Tribunal discussed with the applicant information that:
·On 2 September 2016, a Pakistani national [Mr A] born on [date] lodged a visa application in Australia. In the visa application, amongst other things, [Mr A] declared having a brother called [variant of applicant’s name] born on [DOB 1].
·On 28 September 2017, the Department conducted an interview with [Mr A] who was residing at the time in Australia and during this interview, [Mr A] confirmed that he was from a family of eight comprising of himself, his father, mother, three brothers and two sisters.
·[Mr A] provided a copy of the same family registration certificate document number [number] as the one provided by the applicant in support of the student visa application.
·[Mr A] claimed that for some reason, he is not listed in the family registration certificate but indicated that his father is [name], date of birth [specified], the same person recorded in the family registration certificate as being the applicant’s father. [Mr A] also identified having an older brother, [Mr B] born on [date] who for unknown reasons is also not listed on the family registration certificate.
·As the family registration certificate did not list a male called [variant of Mr A] born on [date], Departmental officers asked [Mr A] about this inconsistency during an interview. Following the interview, [Mr A] confirmed the applicant’s details as being the correct details for the brother referred to in [Mr A’s] visa application as [variant of applicant’s name] [DOB 1]. [Mr A] confirmed that he and the applicant are brothers.
The Tribunal advised the applicant that this information is relevant because it suggests that the applicant had provided incorrect information in the application for a subclass 500 visa concerning the answers relating to the Other Family Members’ section and that the family registration certificate provided by the applicant is either counterfeit or has been altered by a person who does not have the authority to do so, that is, a bogus document. The Tribunal indicated that the information is inconsistent with the answers provided in the subclass 500 visa application when he claimed that he did not have any family members living in Australia, given that that he had a brother living in Australia during the processing of the visa application. The Tribunal indicated that the information is adverse as it suggests that the applicant has two additional older brothers, namely [Mr B] and [variant of Mr A], who were not mentioned. When invited to comment on or respond to that information, the applicant stated that at the time the student visa application was lodged, that is 31 July 2016, he was about [age] years of age and he did not know how to apply for Australian visas. He approached an unregistered agent in Pakistan and advised him that he has two other brothers who are not listed in the FRC document which he showed to the agent. The applicant stated that the agent told him that all members of the family would be listed in the visa application and that there was no need for the applicant to obtain a corrected FRC. The applicant stated that the agent completed the form which the applicant signed without considering its contents.
In accordance with s.359AA, the Tribunal advised the applicant that there is information before the Tribunal indicating that the applicant was interviewed by the Department on 1 November 2016 when he confirmed that he had completed the application form himself. The Tribunal noted that this is inconsistent with his oral evidence that an agent had completed the form. When invited to comment on or respond to that information, the applicant stated that the agent had used the applicant’s email address which the agent created without the applicant’s knowledge. As the applicant did not answer the question directly concerning the inconsistency in the evidence, the Tribunal gave him a further opportunity and explained the significance of this information. The applicant reiterated that the agent had used the applicant’s name and email details which the agent created. The Tribunal advised the applicant that it has concerns about the inconsistency which could raise some doubts about his version of events. The Tribunal indicated that there is no independent corroborative evidence before the Tribunal that an agent had completed the form. The Tribunal noted that it may make further enquiries. Subsequent to the hearing, the Tribunal received further submissions and supporting documents. The Tribunal decided it was not necessary to engage in further investigations about the completion of the form.
Notice of Intention to Consider cancellation (NOITCC) and response
On 16 August 2019, the Department sent to the applicant a NOITCC to which the applicant responded.
In a Statutory Declaration of 30 August 2019, the applicant declared the following:
·As part of the preparation for the subclass 500 student visa, he obtained the FRC from NDRA but when the document arrived, he noticed that it was missing the details of his two brothers, [Mr B] and [variant of Mr A]. He discovered that it would take 1 to 2 months to have the certificate reissued.
·When he spoke to his agent about his brother’s details being missing from the FRC, the agent advised him that there is no need to fix the document because the details of his brothers would be declared in the application form itself. When the agent lodged the application, the applicant believed that the details of all his brothers had been included.
·At the time of lodging the subclass 500 application, the applicant’s brother ([Mr A]) was studying in Australia on a student visa and the other brother [Mr B] was in Pakistan going through a divorce.
·When the subclass 500 visa application was lodged, the applicant was enrolled in a package of courses starting on 17 October 2016 with a tertiary access program with the [College 1], then a [Course 1] with [College 1] commencing from 27 February 2017, and then a Bachelor of [Subject 2] at the [University 1] starting from 26 February 2018. However, his student visa was not granted in time to commence the course in October 2016 and instead, he enrolled in a similar package of courses beginning with a Tertiary Access Program at [College 2] to start on 27 February 2017.
·The student visa was granted on 25 November 2016 and he arrived in Australia in December 2016. He started his course at [College 2] in February 2017 as planned. Around May 2017, he finished the course with [College 2]. At that time, he had a friend who was living in Sydney and he told the applicant about Sydney. The applicant thought he would also enjoy living in Sydney. He applied for a release from [University 1] and enrolled in a bachelor’s degree in [Subject 3] at the Sydney campus of [College 3], commencing on 13 November 2017. He moved to Sydney around August or September 2017, but he only stayed in Sydney very briefly because he did not like it at all, and he missed his brother in Perth and felt homesick. As a consequence, he did not commence his course with [College 3], and he returned to Perth instead.
·In Perth, he tried to gain admission to a degree course in [Subject 2] with a Western Australian university but he had trouble due to issues with his release from [University 1] In the meantime, he enrolled in a Diploma of [Subject 2] with [College 4], which started in April 2018 and he successfully completed the course in April 2019.
·He has continued to try to be enrolled in a bachelor’s degree course and he has received an offer from [University 2] on 20 March 2019 which he did not take up because he wanted to study at [University 1]. He thought he would be able to get admission at [University 1] where he had wanted to study when he first applied for the student visa.
·He is currently enrolled to study a Diploma of [Subject 4] with [College 1] due to commence on 2 September 2019, but he is still corresponding with [University 1] to try to get enrolment in a bachelor’s degree course. His goal in Australia is to complete a Bachelor of [Subject 2] degree, consistent with his plans when he applied for the visa. During his time in Australia, he has done some casual work and he has been careful not to work more than 20 hours a week, consistent with the conditions of his visa. He has not given any bogus documents and until he received the NOITCC, he thought that his agent had included his brothers details in the visa application form.
Submissions dated 25 August 2019
In those submissions, the representative outlined the circumstances that led to the cancellation and argued against cancellation on the following grounds:
·The applicant complied with s.103 of the Act.
·When preparing for the student visa application in the first half of 2016, the applicant used an unregistered agent to assist. The applicant obtained the FRC from the Pakistani authorities but the document was missing the details of his two brothers. He advised the agent who told him that there was no need to obtain a corrected FRC as he could list the brothers’ names in the visa application form. The applicant was granted the visa on 25 November 2016 and he came to Australia in December 2016. Since his arrival, he has been enrolled in, and has completed a course.
·The applicant acknowledges that the FRC provided with the student visa application is missing the details of his two brothers [Mr B] and [variant of Mr A]. However, inaccuracies in a document are insufficient to amount to a bogus document as defined in s.5(1) of the Act. The FRC was obtained from the NDRA. It is not unusual for FRCs from Pakistan to miss details of family members, particularly those who are no longer a part of their parents’ household. The Australian Department of Foreign Affairs and Trade (DFAT) in its Country Information Report Pakistan dated 20 February 2019 noted that “Document fraud is widespread for forms of documentation not issued by a competent central authority such as NDRA”. This could be verified with the Pakistani authorities. [Mr B] and [variant of Mr A] were left off the visa application inadvertently but there are no provisions for inadvertent mistakes in filling in visa application forms. Consequently, incorrect information was provided in breach of s.101(b).
In support of the response, the applicant provided copies of the following relevant documents:
·Email correspondence between the applicant and the agent on 28 June, 4 July and 1 September 2016.
·Confirmation of Enrolment (CoE) certificates for the Tertiary Access Program at [College 1] commencing 17 October 2016, [Course 1] at [College 1] commencing 27 February 2017, Bachelor of [Subject 2] at [University 1] commencing on 26 February 2018, Tertiary Access Program at [College 2] commencing 27 February 2017, [Course 1] at [College 2] commencing 26 June 2017, Bachelor of [Subject 3] at [College 3] commencing 13 November 2017, and Diploma of [Subject 4] at [College 1] commencing September 2019.
·Student visa grant issued on 25 November 2016.
·Conditional letter of offer dated 31 August 2017 from [College 3] to the applicant for the Bachelor of [Subject 3] commencing 13 November 2017 and ending 30 November 2020.
·Diploma of [Subject 2] certificate from [College 3] issued on 18 July 2019 and academic results for that course issued on 18 July 2019.
·Email correspondence between the applicant and [University 1] sent on 15 August 2019.
·DFAT Country Information Report Pakistan published on 20 February 2019, pages 32 to 33.
·National identity card issued to [Mr B variant] and marriage certificate in relation to the marriage of [Mr B variant] and [his wife].
Following the receipt of the response to the NOITCC, the delegate was satisfied that the applicant had complied with s.103 but not s.101(b) of the Act.
Submissions to the Tribunal dated 25 August 2020

The representative submitted that:
·The delegate found that the applicant did not comply with s.101(b) and that there was insufficient information to support a finding that the applicant had provided a bogus document as contemplated by s.103 of the Act.
·The applicant’s visa was cancelled on 25 September 2019 and on 23 October 2019, he was granted a BVE with full work rights but with No Study condition 8207. On 6 January 2020, the representative advised the applicant that it would be better to obtain enrolment before applying for study rights as there would be better prospects of success. On 17 January 2020, the applicant advised the representative that he was informed that he could not obtain enrolment in a course until he had study rights. He nevertheless attempted to obtain enrolment at [University 3]. On 28 January 2020, the applicant lodged an application for a BVE with a request to remove condition 8207 and he was granted a BVE on 7 February 2020 however condition 8207 was also imposed on this BVE. On 16 March 2020, the applicant advised the representative that he was having trouble enrolling at university without study rights. On 12 June 2020, the applicant advised the representative that he wanted to lodge a new BVE as “he was just totally wasting [his] time by sitting at home”. He enquired with [University 2] and developed a plan to enrol in a combined Certificate IV and Diploma Course in [Subject 4] with the aim of transferring to a Bachelor of [Subject 2] course at [University 2] after six months in the event that he would be granted study rights. On 9 July 2020, the applicant received an offer letter for the package [Subject 4] course to begin on 10 August 2020. On 17 July 2020, a new BVE application was lodged requesting study rights and he was granted the BVE on 13 August 2020 but with condition 8207 imposed. He was however advised earlier on 5 August 2020 that he could not begin his course until a decision was made on the BVE.
·The cancellation decision record of 25 September 2019 refers to an interview conducted with the applicant on 1 November 2016. The applicant’s recollection of that interview which was conducted over three years ago is that he was woken up by telephone call from the Department and was asked a few simple questions, including whether he could support himself in Australia. The interview lasted only a few minutes and he has no specific recollection of answering that he had no family members, or friends in Australia but that he may have said so due to a rift in the family between [Mr A] and their father. At the time of the interview, the applicant was [age] years old and did not appreciate the seriousness of the application process or the requirement to ensure that everything said during this telephone conversation with the delegate was entirely accurate. He now has a full understanding of those matters and of his own responsibility to ensure that all details in any visa application are correct. The applicant and [Mr A] were not in close contact at the time and he did not know of [Mr A’s] visa situation in Australia at the time so he was unaware of the application for a protection visa.
In support, the applicant provided documents including copies of emails with the representative about further studies, the BVE with condition 8207 imposed, Letter of Offer from [College 5] dated 9 July 2020, and a Statutory Declaration of the applicant of 16 July 2020 to support a request to reinstate study rights.
In the course of the hearing, the Tribunal advised that like the delegate, it will proceed on the basis that there has been no breach of s.103.
The applicant gave evidence that at the time he did not have any contact with his brother in Australia and that he was not aware of his brother’s visa status. The applicant told the Tribunal that he currently lives with his brother and although he has subsequently become aware that his brother had lodged a protection visa, he does not know much about the application. The Tribunal expressed doubts that despite living with his brother and under the circumstances, he does not know the outcome. The applicant confirmed that he does not know. The Tribunal advised the applicant that although the brother lodged the application for the protection visa (on 2 September 2016) subsequent to the applicant lodging the student visa (1 July 2016), it is possible that at the time, there were discussions between the applicant and [Mr A] about the protection visa which might explain the applicant’s reasons for not disclosing the existence of his brother living in Australia at the time. The applicant denied this and reiterated that he did not know and that his brother had nothing to do with the applicant. He said they were not in contact at the time.
The Tribunal observes that the applicant was interviewed by the Department on 1 November 2016, after the brother lodged the application for the protection visa on 2 September 2016 which might suggest that there were reasons at the time of the interview for the applicant’s non-disclosure of the brother in Australia. In written submissions, in relation to the interview, it was noted that the applicant was “woken up by a phone call from the Department and that he was asked a few simple questions…the interview lasted only a few minutes and he has no specific recollection of answering that he had no family, family friends or friends in Australia but he may have said that due to a rift in the family” between [Mr A] and the father. The Tribunal has concerns about the applicant’s answers when he was interviewed on 1 November 2016 that he had no family in Australia. The Tribunal has given regard and some weight to the applicant’s evidence and the submissions contending that he did not know about his brother’s circumstances in Australia. In submissions to the Tribunal of 25 August 2020, it was accepted that the omission was “negligent” rather than calculated. The Tribunal has concerns about the applicant’s version of events in relation to the brother but these are insufficient on the evidence to make a definitive finding that the applicant in fact knew the exact nature of the brother’s circumstances, specifically about the application for a protection visa; the applicant’s student visa was lodged prior to the brother’s protection visa application but the interview with the applicant occurred on 1 November 2016. In those circumstances, the Tribunal can only speculate about the applicant’s intentions for the non-disclosure of the information about [Mr A] in Australia. Similarly, it is speculative as to the reasons for the non-disclosure about the other brother. On balance of the evidence, the Tribunal is not satisfied that the applicant failed to disclose information specifically about [Mr A] because of the intended or actual application for a protection visa.
Subsequent to the hearing, the Tribunal received submissions that included the contact details of the unregistered agent who completed the form and supporting documents such as a screen capture taken from the Facebook page of [Agency 1] showing that the business was involved with the lodgement of the application, a screen capture taken from the website of [Agency 1], which states that they provide ‘assistance [deleted]….’, the [Agency 1] website lists [name] as CEO and founder. The representative submitted that copies of emails previously provided demonstrate that correspondence about the visa was not being received by the applicant directly but rather by [Agency 1], who were then forwarding the information to the applicant, consistent with the applicant’s evidence at the hearing that his visa application was prepared by an unregistered Pakistani agent who registered a new email address for that purpose, and that the applicant “simply signed the forms as he was [age] years old and did not know any better at the time”.
The Tribunal has concerns about the applicant’s answers when he was interviewed on 1 November 2016 that he had completed the form, inconsistent with later submissions and oral evidence. The Tribunal has considered the totality of the evidence very carefully and although the Tribunal has some doubts, the balance of the available evidence leads the Tribunal to find that the application for the student visa was completed by an unregistered agent in Pakistan, contrary to the applicant’s answers when he was interviewed on 1 November 2016 that he had completed the form and that he had no family in Australia.
The Tribunal finds, and consistent with the applicant’s evidence that the applicant personally signed the application form for the subclass 500 visa, without checking and ensuring that the contents of the visa application form were correct. The Tribunal is particularly concerned that the applicant signed the form in circumstances when he knew that the FRC contained incorrect information and failed to ensure the accuracy of the information about members of the family.
The Tribunal is of the view that that the applicant was “negligent” or recklessly indifferent when he signed the form without checking in circumstances when he knew that the FRC document did not contain correct information.
As to his incorrect answers during the interview on 1 November 2016, the Tribunal has given some weight to the explanations and submissions but it is evident and the applicant has acknowledged that he might have answered as reported by the Department in that incorrect information was also provided on this occasion relating to the composition of the applicant’s family.
Whether he completed the form or knew of the provision of the incorrect information is not a requirement to enliven s.101(b). In this regard ss.98, 99 and 100 are relevant.
Sections 98, 99 and 100 provide:
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.
99      Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100    Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
On the evidence, the Tribunal finds that the applicant provided the incorrect information in breach of s.101(b) when he provided answers relating to his family composition and his brother in Australia.
Having found that there was non-compliance by the applicant in the way described in the s.107 notice, the Tribunal must consider the discretionary power whether the visa should be cancelled.
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 correct information is that the applicant did not disclose in the visa application or when he was interviewed on 1 November 2016 the existence of the two siblings, namely [Mr B] and [Mr A], as well as the fact that [Mr A] was in Australia.
As outlined above, the Tribunal has considered the totality of the evidence and although the Tribunal has some doubts, on the balance of the available evidence, the Tribunal found that the application for the student visa was completed by an unregistered agent in Pakistan, contrary to the applicant’s answers when he was interviewed on 1 November 2016 that he had completed the form and that he had no family in Australia. For the stated reasons, the Tribunal found that the applicant personally signed the application form for the subclass 500 visa, without checking and ensuring that the contents of the visa application form were correct. The Tribunal is particularly concerned that the applicant signed the form in circumstances when he knew that the FRC contained incorrect information and failed to ensure the accuracy of the information about members of the family.
The Tribunal has given regard to the particular submissions that the applicant was young ([age] years old when interviewed on 1 November 2016) and “did not appreciate the seriousness of the application process or the requirement to ensure that everything thing said in his phone conversation with a delegate from the Department was entirely accurate”. The Tribunal appreciates those submissions and has given them some weight, but the fact remains that the applicant provided incorrect information.
The integrity of the migration program relies on, amongst other things, applicants providing correct information in visa application forms and in their dealings with the relevant agencies including the Department. Sections 98 to 100 reflect the seriousness of the provision of the incorrect information even in situations where there was no intention to provide incorrect information.
The Tribunal gives this consideration significant weight in favour of cancellation.
· the content of the genuine document (if any)
There is no longer an issue in relation to a genuine document.
The Tribunal gives this aspect neutral weight.
· 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 applicant has claimed that the omission did not have “any real impact” on the applicant’s eligibility for the visa.
The applicant was granted the subclass 500 visa on the basis of information he provided throughout the processing of the visa, which included the incorrect information about the two brothers, one of whom was in Australia at the time and had lodged a protection visa on 2 September 2016, approximately two months prior to the interview with the Department on 1 November 2016 and three months prior to the visa grant. The applicant has claimed that he did not have any contact with his brother in Australia and that he was not aware of his brother’s visa status. As concluded above, on balance of the evidence, and for the stated reasons, the Tribunal is not satisfied that the applicant failed to disclose information specifically about [Mr A] because of the intended or actual application for a protection visa.
However, the question is whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information.
In order to be granted the student visa, the applicant had to satisfy the Genuine Temporary Entrant (GTE) criterion. The GTE is an assessment to determine that the applicant intends to stay in Australia temporarily with the objective to study and gain Australian qualifications. The student visa program is not intended for applicants to maintain ongoing residency in Australia. The assessment takes into account multiple factors including the applicant’s personal circumstances, including ties to Australia that present a strong incentive to stay in Australia. The Tribunal is satisfied that the fact that [Mr A] was in Australia and had lodged a protection visa application meant that the decision maker was not aware of a significant aspect of the applicant’s circumstances which would raise doubts about the applicant’s circumstances and claimed intention to study in Australia. The Tribunal is satisfied that had the decision maker known about [Mr A’s] circumstances, the applicant’s application would have been scrutinised much closer as part of the Department’s migration procedures to ensure compliance with the student visa program and to determine the GTE requirement. The Tribunal is satisfied that the fact that [Mr A] had applied for a protection visa is adverse to the applicant’s application. In the course of the hearing, the applicant confirmed that he has no protection claims and the Tribunal gives some weight to that evidence. However, as a result of the applicant’s failure to disclose information about [Mr A], the decision maker did not have the opportunity to fully-assess the application. It is reasonable to suggest that the decision maker would have requested further information and explored the issues much more in order to determine the GTE requirement. The Decision maker was bound by Direction no.53 – Assessing the genuine temporary entrant criterion for student visa applications which requires an assessment of the applicant’s cumulative circumstances.
On the evidence, the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on the incorrect information provided by the applicant.
The Tribunal gives this consideration significant weight in favour of cancellation.
· the circumstances in which the non-compliance occurred
The circumstances of non-compliance occurred when the applicant provided incorrect information when applying for the student visa, specifically relating to the claims concerning the composition of his family.
The applicant has claimed, and the Tribunal has accepted that he did not complete the application form, although he confirmed that he did sign the application form. For the stated reasons, the Tribunal found that the applicant was recklessly indifferent in signing the form without checking and ensuring the accuracy of the information provided. In any event, whether he completed the form personally or not does not assist as he remains to be impacted by ss.98 -100 of the Act.
The Tribunal gives this consideration significant weight in favour of cancellation.
· the present circumstances of the visa holder
The applicant has provided extensive submissions and documents outlining his studies in Australia. The Tribunal observes that since his arrival in Australia, the applicant has studied in various courses. There were gaps in his studies, potentially in breach of condition 8202. In this regard, the Tribunal has given weight to the submissions that the gaps were due to moving interstate and the difficulties he experienced in re-enrolling. The Tribunal accepts the evidence that the applicant has made repeated attempts to enrol but has been unsuccessful essentially due to the No Study condition 8207. The Tribunal accepts that the applicant is keen to continue his studies in [Subject 2] in Australia and that the cancellation of the visa would mean that he would not be able to do so. The applicant works part-time – 20 hours a week.
The Tribunal gives this aspect significant weight in the applicant’s favour.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant did respond to the NOITCC and fully engaged with the cancellation process.
The Tribunal gives this consideration weight in favour of the applicant.
· any other instances of non-compliance by the visa holder known to the Minister
There is evidence of non-compliance with condition 8202, however in the circumstances and considering the applicant’s explanations, the Tribunal gives this aspect neutral weight.
· the time that has elapsed since the non-compliance

The non-compliance occurred when the applicant provided incorrect information when applying for the student visa, lodged in July 2016.
The Tribunal is of the view that this period in the applicant’s case is important as he has undertaken several courses since the non-compliance.
The Tribunal gives this consideration weight in favour of the applicant.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal of any breaches of the law since the non-compliance.
The Tribunal gives this aspect neutral weight.
· any contribution made by the holder to the community.
The applicant has worked in Australia and the Tribunal considers this to be a contribution to Australia. The Tribunal has given weight to the submissions that the applicant has paid fees and that potentially [University 2] could benefit from the approximate $30,000, 1^st year fees in the Bachelor of [Subject 2] degree. The Tribunal accepts the submissions that in the context of the COVID-19 pandemic, this is a significant contribution to the Australian community.
The Tribunal gives this aspect significant weight in the applicant’s favour.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly 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.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. To minimise or avoid those potential consequences, the applicant could voluntarily depart Australia.
The applicant would also be impacted by s.48 of the Act which means that he may face difficulties in applying for any further visas in Australia and in being granted an Australian visa.
The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences and in the applicant’s case, the Tribunal gives this aspect neutral weight.
·whether there would be consequential cancellations under s.140
There is no evidence that the cancellation of the applicant’s visa would result in the cancellation of the visa of another person, pursuant to s.140.
The Tribunal gives this aspect neutral weight.
·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
The applicant confirmed in the course of the hearing that he has no protection claims or any intention of lodging a protection visa.
There is no information before the Tribunal to suggest that Australia would be in breach of any of its international obligations, such as non-refoulement obligations in the event of cancellation.
The Tribunal gives this aspect neutral weight.
·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
The Tribunal is satisfied that the visa cancellation would result in emotional, psychological, and financial hardship to the applicant. The applicant would not be able to pursue any further studies in Australia unless granted another visa, but as discussed above, he would face difficulties. Cancellation also means potentially he would have to depart Australia prior to completing his studies in circumstances where he has evidently invested money, time and commitment.
The Tribunal gives those matters significant weight in the applicant’s favour.
There are no other matters requiring consideration.
Concluding remarks
The Tribunal has carefully considered the material before it individually and cumulatively. The provision of incorrect information in a visa application is a serious matter. The legislature and policy makers intended adverse consequences, including cancellation. There are aspects in the applicant’s favour including his studies and his contribution to the Australian community. However, on balance, the Tribunal is satisfied that the evidence weighs in favour of cancellation.
Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Antoinette Younes

Senior Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
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.

[2020] AATA 5109

21 September 2020

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