2205345 (Migration)

[2023] AATA 2398

2205345 (Migration) [2023] AATA 2398 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Mrudula Beegala (MARN: 1571264)

CASE NUMBER:  2205345

MEMBER:Gabrielle Cullen

DATE:29 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 29 June 2023 at 10:49am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus documents in the visa application – Income Tax Returns – genuine access to funds – mental health impacts – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 359
Migration Regulations 1994, Schedule 2, cl 500.214; Schedule 4, Public Interest Criterion 4013; rr 2.12, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of India. On 23 June 2021 he made an application for a Student (Higher Education Sector) (Subclass 500) visa. On 6 July 2021 he was granted the visa valid to 15 March 2024. He arrived in Australia on 20 December 2021.

3. On 22 March 2022, the delegate sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC) of his Student visa under s 109 of the Act and informed him that a response must be provided in writing within 14 calendar days after he was taken to have received the letter.

4. On 3 April 2022, the applicant provided a response to the NOICC in the form of an email with documents attached as outlined below.

5. On 7 April 2022, the delegate cancelled the applicant’s Student visa under s 109 on the basis that he had not complied with s 103 of the Act on the basis of bogus documents being provided to the Department.

6. On 11 April 2022, the applicant applied to the Tribunal for a review of that decision and attached the decision of the Department.

7. On 12 April 2023 the Tribunal invited him to appear before the Tribunal by video link on 15 May 2023 at 9.30am to give evidence and present arguments relating to the issues arising in his case.

8. On 12 April 2023 the Tribunal wrote to the applicant informing him of the existence of an s 375A non-disclosure certificate issued by the Department on 14 April 2022 and attached the certificate. The letter noted the following:

   Release of the material is prevented by s 375A of the Act.

   The Tribunal’s preliminary view is that the certificate contains a valid ground of public interest immunity not to disclose the information. The certificate is attached to this correspondence.

9. It invited him to comment on the validity of the s 375A certificate by 15 May 2023 and advised he would also be given an opportunity at the hearing on 15 May 2023 to discuss this matter and provide oral submissions.

10. The applicant appeared before the Tribunal via video on 15 May 2023 to give evidence and present arguments. His representative did not attend the hearing. His aunt, [Aunt A], also gave evidence. He was assisted with an interpreter in the Punjabi and English languages; however, the hearing was mostly conducted in English. He was advised that at any time he did not understand or needed to use the interpreter to express himself he should.

11. He was given until 19 May 2023 to provide evidence of payment of fees to [College 1] to study the [Course 1] before his visa was cancelled.

12. Following the hearing he provided a Confirmation of Enrolment (COE) dated 17 September 2021 to study the [Course 1] from 27 January 2022 to 24 March 2023 as evidence of fees paid with an initial pre-paid fee being $9,617 to be paid before 31 March 2022 and evidence of a money transfer dated 17 June 2021 to [College 1] in the sum of A$12,300.

13. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    Section 375A certificate of non-disclosure

14. The Tribunal wrote to the applicant advising that there is an s 375A certificate on the Department’s file which it considered is valid. At the hearing the Tribunal advised that it considered the certificate to be valid. It referred to its previous letter sent to the applicant in regard to the certificate which outlined the reason given by the Department for the certificate. The applicant at hearing accepted the validity of the certificate.

15. The Tribunal outlined at hearing, via the process outlined in s 359AA, the information it covered in general, that [in] January 2022, the Department’s New Delhi post conducted verification checks with the Income Tax Department in India on the Indian Income Tax Returns of the applicant’s father, submitted by the applicant when applying for the visa, which revealed that no tax had been filed with the stated TAN numbers  [A] and [B] and advised that it was of the view these tax returns were not genuine income tax returns. The Tribunal also noted the certificate protects information referring to other applicants and concerns as to enrolments with a certain education provider and internal correspondence.

16. The applicant responded at hearing as outlined further below indicating that his father’s tax returns and documentation submitted with his application are genuine.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

17. 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.

18. 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.

    Did the notice comply with the requirements in s 107?

19. 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?

20. 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 103.

21. The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 7 April 2022. The information indicates that on 23 June 2021 he applied online to the Department for a Student (Higher Education Sector) (Subclass 500) visa to undertake a [Course 1], [Course 2] and [Course 3] at [College 1].

22. It notes he was assessed by the delegate as meeting all the relevant criteria and a Student visa was granted on 6 July 2021 valid to 15 March 2024.

23. In the NOICC dated 22 March 2022, the delegate set out the particulars of the possible non‑compliance with s 103. It raised with the applicant that the Department reasonably suspects he has provided bogus documents within the meaning of s 5(1).

24. In particular, the NOICC noted that in support of the applicant’s application for the Student visa, he submitted the following documents of his father’s, [Father A’s], finances as evidence of his claimed financial support:

    ·     Indian Income Tax Return for the assessment year 2020 -21 for [Father A] from Income Tax Department with e-filing Acknowledgement Number [EFA 1], submitted electronically on 16 December 2020 at 17:07:57. This included attached Form Number 16, which listed TAN [B].

    ·     Indian Income Tax Return for the assessment year 2019 -20 for [Father A] from Income Tax Department with e-filing Acknowledgement Number [EFA 2], submitted electronically on 25 July 2019 at 11:25:09. This included attached Form Number 16, which listed TAN [A].

25. The delegate noted that on page 14 of the application form under the heading Declarations the applicant submitted his agreement to the below declarations (quoted in part):

    Warning:

    Giving false or misleading information is a serious offence. The applicants declare that they:

    Have read and understood the information provided to them in this application.

    Yes

    Have provided complete and correct information in every detail on this form, and on any attachments to it.

    Yes

    Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.

    Yes

    Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

    Yes

    […]

26. The Tribunal referred to information received from the Department as outlined below that:

    [In] January 2022, an integrity check was conducted by the Department’s New Delhi post. Verification checks with the Income Tax Department in India revealed that the TANs listed in the Income Tax Returns, [A] and [B], have no tax file recorded. As such, it is deemed that these documents are non-genuine.

27. The delegate considered the applicant’s representative’s response to the NOICC which disputed that non-compliance occurred. He submitted the following:

    ·     The applicant’s parents are providing financial support for him to study the [Courses 1 and 2] and [Course 3].

    ·     The visa holder’s father [Father A] has been an employee of the [Agency 1] with the Government of Punjab.

    ·     His current ID is [ID 1] and he is in the [Employee Level] of [Level A]. His Permanent account number with the Income Tax Department in India is [PAN 1].

    ·     TAN Number provided in his Form 16 – [A] belongs to the employer as seen in a screenshot which was replicated.

    ·     [Father A] has provided verified and lodged Income Tax Return documents which were provided as part of the visa holder’s response to the NOICC including for the year 2019-20 and year 2020-21, which were attached.

    ·     In addition, the visa holder also provided more information supporting the Income Tax return documents which are genuine and are not bogus documents

    ·     TAN Numbers in question [A] and [B] belong to the visa holder’s father’s employer – [Manager 1] [Location 1].

    ·     The Form 26AS which is the Annual Tax Statement under section 203AA of the Income Tax Act 1961, lists the details of tax deducted at source and has the names of the employer.

    · The visa holder therefore believes he has complied with section 103 of the Migration Act 1958 as all the documents provided by applicant and his father are genuine and can be independently verified.

28. Also attached to the response to the NOICC were the following documents.

    ·     [Agency 1] Card No [ID 1] for [Father A], [Employee Level] [Level A].

    ·     

    Affidavit from [Father A] dated 31 March 2022 noting he is the father of the applicant and providing support for his tuition and living expenses in Australia. He notes he works for the State Government of Punjab in the [Agency 1] as [Role 1] at the Office of the [Manager 1], [Location 2] TAN No. [C]. He also refers to his PAN being [PAN 1] and that he has lodged the tax returns attached and an Annual Tax Statement also attached in Form 26AS for

    
    

    2017-18, 2019-20 and 2020-21.

    ·     Translated Version of Birth Certificate of [the applicant], issued [in] April 2015 showing [Father A] is his father.

    ·     Character/Service Certificate [number] from Office of [Manager 1] [Location 2], dated 30 March 2022 for [Father A].

    ·     GPF Certificate [number] from Office of [Manager 1] [Location 2], dated 18 December 2020.

    ·     Bank Statement for Account [Number] for period 01 April 2021 to 26 March 2022 for [Father A], allegedly demonstrating salary deposits.

    ·     Form 26AS – Annual Tax Statement under s 203AA of the Income Tax Act 1961 for financial years 2018-19, 2019-20 and 2020-21.

29. The Department’s Decision Record indicates that based on the information provided by the applicant in his visa application form and the supporting documents provided, he was granted the Student (Higher Education Sector) (Subclass 500) visa on 6 July 2021 valid to 15 March 2024.

30. It noted that the applicant in his application form on pages 7-8, under the heading Funding for Stay, provided the following information (in bold):

    Do all applicants in this application confirm that they each have access to sufficient funds to support themselves for the total period of stay in Australia and understand that further evidence of funds may also be requested?

    Yes    

    Show how each applicant included in the application will support themselves in Australia to meet living, tuition and school costs. Select any that apply.

    Other financial support

    Give details:

    MY PARENTS ARE SUPPORTING ME FOR MY TUITION FEE AND ALL LIVING COSTS

31. The delegate considered the explanation and documents provided but gave more consideration to the evidence provided by the Delhi post in the integrity check. The delegate found the Tax Returns referred to above at paragraph 24 are bogus documents within the meaning of s 5(1) as they are counterfeit or have been altered by a person who does not have authority to do so. The delegate found that the applicant had not complied with s 103 of the Act and therefore his Student visa was liable to be considered for cancellation under s 109 of the Act.

32. Prior to the hearing the applicant submitted the following documents:

    ·TRACES[1] document from the Government of India Income Tax Department for TAN [B][2] for financial year 2019-20 noting 2,204,793.20Rs gross paid with net the same figure.

    [1] TDS Reconciliation Analysis and Correction Enabling System from Indian Income Tax Department

    [2] The document had this in lower case.

    ·TRACES document from the Government of India Income Tax Department for TAN [B][3] – noted as [Manager 1] [Location 2 variant] for financial year 2020-21 and assessment year 2020-21 with regard to [Father A], the applicant’s father noting regular payments of 8,448.72Rs and tax deducted of 47,174Rs from 30 April 2020 to 31 March 2021.

    [3] The document had this in lower case.

    ·TRACES document from the Government of India Income Tax Department for TAN [A] for 2019-20 financial year showing tax paid.

    ·TRACES document from the Government of India Income Tax Department for TAN [A] for 2018-19 financial year showing tax paid.

    ·Document from Government of India Income Tax Department showing TAN [A] relates to [Manager 1] [Location 1 variant] with contact details.

    ·Document from Government of India Income Tax Department showing [B] relates to [Manager 1] [Location 2 variant].

    ·Document from Government of India Income Tax Department for financial year 2019-20 and assessment year 2020-21 for the applicant’s father showing 1,116Rs deducted under TAN [D] being [Location 3] State Government Punjab.

    ·Document from Government of India Income Tax Department for financial year 2018-19 for TAN [A] showing default amounts and number of defaulters.

    ·Letter from the applicant’s father stating he holds [PAN 1] and has been filing his Indian tax returns as a Punjab State Government Employee with Punjab [Agency 1] for the last 20 years. He refers to the tax returns submitted and one for Assessment Year 2021-22 and that his tax was deducted through TAN [A] and [B] (Form 16 and 26AS). He notes that the Australian Embassy found the TANs not to be genuine but submits they are and requested the Form 26AS to be verified.

    ·Statement of TDS under s 200(3) relating to TAN [B] being the [Manager 1] [Location 2 variant] for financial year 2019-20 showing total tax deducted of 2,408,660Rs and 579 deductees.

    ·Letter from [Tax Officer A], Income Tax Officer, [Location 2] dated 26 April 2022 noting the following:

    For the Assessment year 2021-22, as per TRACES the TDS deducted at Rs.47,174/- though TAN: [B] in return of income, Form No.16 and Form No.26AS, is correct.

    For the assessment year 2020-21, the TDS deducted at Rs.10,000/- through TAN: [A] and Rs.1116/- though TAN:[D] in Form No.26AS, is correct, however, in Form No.16 the TAN [B]. is mentioned.[4]

    For the assessment year 2019-20, the TDS deducted at Rs.20,274 /- through TAN: [A] and Rs.13,887- though TAN: [D] in Form 26AS, however, in Form No.16 the single TAN; [A] is mentioned.

    ·Letter from [Tax Officer B], Income Tax Officer dated 27 April 2022 to the applicant’s father sending Form 26AS for the assessment years 2019-20 and 2020-21 in respect of deductor TAN [A].

    ·Annual Tax Statement under s 203AA of the Income Tax Act 1961 from the Income Tax Department for the applicant’s father from the Income Tax Department for financial year 2018-19 and Assessment year 2019-20 showing 20,274Rs deducted from TAN deductor [A] being [Location 1].

    ·Annual Tax Statement under s 203AA of the Income Tax Act 1961 from the Income Tax Department for the applicant’s father from the Income Tax Department for financial year 2019-20 and assessment year 2020-21 showing 10,000Rs deducted from TAN deductor [A] being [Location 1].

    ·Annual Tax Statement under s 203AA of the Income Tax Act 1961 from the Income Tax Department for the applicant’s father from the Income Tax Department for financial year 2020-21 and assessment year 2020-21 showing 47,174Rs deducted from TAN deductor [B] being [Manager 1] [Location 2 variant].

    [4] ‘Is mentioned’ is written in handwriting

33. At hearing the Tribunal discussed with the applicant the non-compliance, as described in the s 107 notice, in relation to the Subclass 500 Student visa and the provision of bogus documents. It outlined s 5(1) and the meaning of a bogus document. It also raised with him via s 359AA the gist of the information referred to in the s 375A non-disclosure certificate, as outlined above, including as to there being no tax filed under these numbers.

34. It outlined information from the Income Tax Department of India that the TAN, a Tax Deduction Account Number or Tax Collection Account Number, is a 10 digit alpha-numeric number issued by the Government of India Income Tax Department and that the TAN is to be obtained by all persons who are responsible for deducting tax at source (TDS).[5] It noted that the information indicates that a TAN must be obtained by all persons and companies responsible for deducting tax at source or who are required to collect tax at source. It noted that the information indicates it is compulsory to quote the TAN in a TDS/TCS return, any TDS/TCS payment, TDS/TCS certificates and other documents as may be prescribed in communications with the Indian Tax Department.[6] It noted that it is mandatory for government deductors to hold a TAN.[7]

    [5] Tax Information and Services > TAN/TDS (incometaxindia.gov.in)

    [6] Know TAN Details FAQ | Income Tax Department (incometaxindia.gov.in)

    [7] Know TAN Details FAQ | Income Tax Department

35. The Tribunal referred to the documents at issue he submitted with his application being as follows:

    ·Indian Income Tax Return for the assessment year 2020 -21 for [Father A] from Income Tax Department with e-filing Acknowledgement Number [EFA 1], submitted electronically on 16 December 2020 at 17:07:57. This included attached Form Number 16, which listed TAN [B].

    ·Indian Income Tax Return for the assessment year 2019 -20 for [Father A] from Income Tax Department with e-filing Acknowledgement Number [EFA 2], submitted electronically on 25 July 2019 at 11:25:09. This included attached Form Number 16, which listed TAN [A].

1. It noted that information before it indicates that [in] January 2022 an integrity check was conducted by the Department’s New Delhi post, which included verification checks with the Income Tax Department in India which revealed that the TANs listed in the Income Tax returns of the applicant’s father, being [A] and [B], have no tax filed or recorded. As such, it noted that the Department deemed that these documents are non-genuine. It suggested to the applicant that on the basis of this information it may reasonably suspect that the tax return documents are counterfeit as they were not the documents submitted to the Income Tax Department in respect of his father’s claimed tax returns referred to in the s 107 notice as the information within, with regard to tax deducted, is not consistent with information from the Income Tax Department. It notes these tax returns were considered as evidence of financial support in the grant of the student visa.[8]

   [8] Raised via s 359AA

2. Specifically, it raised with the applicant that in the tax returns claimed to have been submitted by his father to the Income Tax Department of India, referred to in the s 107 notice, reference was made to tax being deducted by organisations with the TANs [A] and [B] but the information from the integrity check shows no tax was deducted. In particular, it noted that in the relevant income tax documents submitted with the Student visa application, 11,116Rs was deducted under TAN [B] for the financial year 2019-20 and assessment year 2020-21 and 32,679Rs was deducted under TAN [A] in the 2018-19 financial year and assessment year 2019-20 as noted in the attached Form 16 which is inconsistent with information conducted in the integrity check that indicates no record of any tax being deducted by organisations with these TANs.

3. In response, the applicant referred to the verification letter dated 26 April 2022 he submitted from [Tax Officer A], an Income Tax Officer with the Income Tax Department which verifies the relevant tax documents submitted with his application are genuine and with tax deducted under the TANs.

4. The Tribunal discussed with the applicant the letter from [Tax Officer A] and noted that the reference to assessment year 2021-22 is not relevant as no such document is referred to in the s 107 notice.

5. The Tribunal raised a number of concerns with his responses, including documents submitted in response to the NOICC and to the Tribunal that question his claim the documents he submitted with his application and are the subject of the s 107 notice are genuine and not bogus in the manner described in s 5(1) as follows:

   ·Information indicates the prevalence of document fraud in India.[9]

   ·The verification letter from [Tax Officer A] dated 26 April 2022 has handwriting in it, being ‘as mentioned’ handwritten which undermines his claim it is from the Income Tax Department and that it is a genuine letter.

   ·The Form 16 he submitted with his application for the visa for the financial year 2019-20 and assessment year 2020-21 refers to the TAN deductor of [B] but information from Form 26AS for the same tax period he submitted in the response to the NOICC indicates that tax was deducted by different TANs/ organisations in that year being 10,000Rs through TAN [A] and 1,116Rs through TAN [D] and none through TAN [B]. It questioned why TAN [B] would be placed on Form 16 if there was no tax deducted in that financial year. In response he referred to s 192(2) of the Income Tax Act 1961. He said the reason is that the applicant’s father was transferred to a different [Agency 1 location] at the end of that tax year and no tax was deducted from that organisation in that financial year but under s 192(2) his father was required to put his current employer’s tax deductor in the form. He said in Form 16 he is only required to mention one TAN deductor even though tax is deducted from different sources during the same financial year when there are multiple employers. He said while his father is employed as [an occupation 1] with the Punjab State Government he works in different sites and jobs and they have different TANs. The Tribunal questioned this as of concern. He again said that his father started working at TAN deductor of [B] at the end of that financial year and no tax was deducted but he is required to put that TAN in Form 16 as it was where he was employed at the end of that financial year.

   ·The Tribunal referred to the representative’s submission in response to the NOICC where he stated that TANs in question [A] and [B] both belong to the applicant’s father’s employer being [Manager 1] [Location 1], however, noted that subsequent information provided by the applicant indicated that while TAN deductor [A] relates to [Location 1], [B] relates to [Manager 1] [Location 2 variant].

   ·The Tribunal referred to the letter from [Tax Officer B], Income Tax Officer dated 27 April 2022 to the applicant’s father sending Form 26AS for assessment years 2019-20 and 2020-21 in respect of deductor TAN [A] and asked why he only referred to one TAN deductor when there were a number of tax deductors from both relevant years and why tax was deducted under that TAN whereas the integrity check indicated there was no tax deducted.

   [9] DFAT Country Information Report India, 10 December 2020 5.65

6. The applicant said his father was [an occupation 1] who had worked in a number of areas and moved around and said he had worked in [several locations including] [Locations 2 and 1] for the Punjab State Government as [an occupation 1].

7. [Aunt A] noted that on the evidence the applicant’s father worked in the [Agency 1], has paid tax and the documents are 100% genuine. She said the applicant has been very frustrated and concerned. She said she was contacted by his family as he has been anxious and depressed with this situation and not being able to study and complete his courses.

8. The Tribunal also referred to the relevance of the tax returns in regard to the grant of the Student visa and in particular as to the financial capacity and genuine access to funds requirement in cl 500.214.

9. The applicant said his father had been a [Role 1] for the last 33 years. He said the documents submitted are 100% genuine and his father financially supported him to come to Australia and study.

   Consideration

10. In determining whether the applicant has bogus documents in his Subclass 500 visa application as identified and particularised in the s 107 notice, the Tribunal has considered the evidence before it as follows.

11. The applicant has repeatedly indicated that the financial information, specifically the Indian Income Tax Returns for the assessment years 2019-20 and 2020 -21 for his father, [Father A] including the attached Form Number 16s are genuine and were the ones submitted by his father to the Income Tax Department. As outlined above he submitted numerous documents in response to the NOICC and prior to the Tribunal hearing arguing that these show the documents the subject of the s 107 notice are genuine. He has argued that no tax was deducted under TAN [B] in assessment year 2020-21 as his father only worked there at the end of the financial year, but he is required to place his last employer on the form as required by s 192(2). He has submitted documents purportedly from the Tax Office to show where tax was deducted in the relevant years from his father and that generally tax was deducted under the TANs [B] and [A] to show that the information from the integrity check is incorrect. His representative also made a written submission. His witness, his aunt, also advised that the tax returns are genuine ones submitted by the applicant’s father which reflect his income.

12. The Tribunal has considered all of the submissions and documents he has submitted as outlined above, however, for the reasons that follow the Tribunal reasonably suspects the documents the subject of the s 107 notice are counterfeit, in that they are imitations of the applicant’s father’s tax returns and not the ones that were submitted to the Indian Tax Office. For the reasons below they are bogus documents as defined in s 5(1) of the Act.

13. Firstly, the Tribunal places significant weight on the evidence as outlined in the s 107 notice that [in] January 2022 an integrity check was conducted by the Department’s New Delhi post, which included verification checks with the Income Tax Department in India which revealed that the TANs listed in the Income Tax returns of the applicant’s father, being [A] and [B], have no tax file recorded or filed and that as a result the Department concluded that these documents are non-genuine.

14. As noted above the TAN is obtained by all persons who are responsible for deducting tax at source (TDS)[10] and it is compulsory to quote the TAN in a TDS/TCS return, any TDS/TCS payment, TDS/TCS certificates and other documents as may be prescribed in communications with the Income Tax Department.[11] The information indicates that it is mandatory for government deductors to hold a TAN, such as the different [offices] the applicant has claimed his father has worked.[12]

    [10] Tax Information and Services > TAN/TDS (incometaxindia.gov.in)

    [11] Know TAN Details FAQ | Income Tax Department (incometaxindia.gov.in)

    [12] Know TAN Details FAQ | Income Tax Department

15. In the 2018-19 financial year being the 2019-20 assessment year, in the Form 16 the information submitted with the application indicates that 32,679Rs of tax was deducted with the deductor organisation being TAN [A]. The applicant subsequently submitted information in Form 26AS and letters from the Tax Office that for this assessment year 2019-20, 20,274Rs was deducted as tax by the organisation with TAN [A] and 3,887Rs- by the organisation with TAN [D]. However, this is inconsistent with the information from the integrity check that there is no evidence of any tax filed or recorded or deduction under that TAN [A].

16. With regard to the tax return for the financial year 2019-20 and assessment year 2020-21, referred to in the s 107 notice which includes Form 16, the TAN deductor organisation is referred to as [B]. At hearing the Tribunal questioned why TAN [B] would be placed on Form 16 if there was no tax deducted in that financial year. In response the applicant referred to s 192(2) of the Income Tax Act 1961. He said the reason is that the applicant’s father was transferred to a different [Agency 1] at the end of that tax year and no tax was deducted from that employer with that TAN in that financial year but under s 192(2) he is required to put his current tax deductor in the form. He said in Form 16 he is only required to mention one TAN deductor even though tax is deducted from different sources during the financial year when there are multiple employers/tax deductors in one tax year. He said even though the applicant’s father is employed by the Punjab [Agency 1] each office has a different TAN. He again said that his father started working at TAN deductor of [B] at the end of that financial year and no tax was deducted but he is required to put that TAN in Form 16 as it was where he was employed at the end of that financial year. He submitted information from the Indian Tax Office, in a letter from [Tax Officer A] dated 26 April 2022 and a Form 26AS for the same tax period, that tax was deducted by different TANs/ organisations in that year being 10,000Rs through TAN [A] and 1,116Rs through TAN [D] and none through TAN [B]. The letter from [Tax Officer A], from the Indian Tax Office dated 26 April 2022 indicates this as well. Even if the Tribunal were to accept the applicant’s explanation why no tax was deducted from the organisation with TAN [B], his explanation is inconsistent with the integrity check that no there is no tax file record or no tax filed by TAN [A].

17. At hearing, the applicant also referred to the letter dated 26 April 2022 from [Tax Officer A], however, the Tribunal has concerns as to the genuine nature of this document as in the letter when referring to financial year 2019-20 and assessment year 2020-21 the typed sentence ends midway and ‘is mentioned’ is handwritten. The Tribunal is of the view that an official document from an Indian Government Department would not have this attribute. When combined with the Tribunal’s concerns as to the prevalence of document fraud in India, as raised with the applicant at hearing, the Tribunal places no weight on this letter as evidence the tax returns of the applicant’s father, the subject of the s 107 notice are genuine or not imitations.

18. Further of concern is the representative’s submission in response to the NOICC which states that TANs in question [A] and [B] both belong to the applicant’s father’s employer being [Manager 1] [Location 1], which is inconsistent to subsequent information provided by the applicant that while TAN deductor [A] relates to [Location 1], TAN deductor [B] relates to [Manager 1] [Location 2 variant]. When raised the applicant said this was a mistake. While not solely determinative this concern adds to the Tribunal’s finding the documents the subject of the s 107 notice are bogus documents within the meaning of s 5(1).

19. The applicant has submitted numerous documents from the Income Tax Department but based on its concern as to the prevalence of document fraud in India, the Tribunal places more weight on the integrity check undertaken in January 2022.

20. It has also considered the evidence of the applicant’s aunt that the documents are genuine but places more weight on the evidence from the integrity check undertaken in January 2022.

21. It has considered the applicant’s request to have the 26AS forms issued by the Indian Income Tax Department verified which claim to be from the Indian Income Tax Department and show tax deducted from the organisations with the TANs consistent with the letter from [Tax Officer A], dated 22 April 2022. However, based on the significant weight it places on the integrity check that no tax was deducted from the relevant TANs mentioned in the Form 26AS, as well as the prevalence of document fraud in India and irregularities in the Indian Tax Office letter from [Tax Officer A], it has not verified these documents. It is of the view that from the evidence of the integrity check and other factors outlined above, it reasonably suspects the documents the subject of the s 107 notice are counterfeit.

22. Based on the above the Tribunal finds on the evidence before it that there are documents that the Tribunal reasonably suspects are counterfeit in that they are imitations of the tax documents submitted to the Income Tax Department.

23. Specifically, the term ‘counterfeit’ is not defined in the Act or Regulations.  The Macquarie Dictionary provides a definition for ‘counterfeit’, which the Tribunal considers pertinent and applicable to the provisions of s 5(1), as follows:

    adjective 1.  made to imitate, and pass for, something else; not genuine: counterfeit coin.

    2.  pretended: counterfeit grief.

    –noun 3.  an imitation designed to pass as an original; a forgery.

    4. Archaic a copy.

    5. Obsolete a likeness; portrait.

    –verb (t) 6.  to make a counterfeit of; imitate fraudulently; forge.

    7.  to resemble.

    8.  to simulate.

    –verb (i) 9.  to make counterfeits, as of money.

24. The Tribunal has formed the view that there is a reasonable suspicion that the tax returns the subject of the s 107 notice and submitted with the application for the visa can be described as documents that have been made to imitate and pass for, something else other than a genuine representation of income tax returns with the relevant tax deductions submitted by the applicant ’s father to the Indian Tax Office. 

25. It follows that the following are bogus documents as defined in s 5(1) of the Act:

    ·Indian Income Tax Return for the assessment year 2020 -21 for [Father A] from Income Tax Department with e-filing Acknowledgement Number [EFA 1], submitted electronically on 16 December 2020 at 17:07:57. This included attached Form Number 16, which listed TAN [B].

    ·Indian Income Tax Return for the assessment year 2019 -20 for [Father A] from Income Tax Department with e-filing Acknowledgement Number [EFA 2], submitted electronically on 25 July 2019 at 11:25:09. This included attached Form Number 16, which listed TAN [A].

26. In making this finding it has considered all the documents submitted by the applicant, the evidence of the witness and the applicant at hearing and submissions by the representative; however, these do not outweigh the Tribunal’s concerns and information from the Department’s New Delhi post leads the Tribunal to reasonably suspect that the above documents are bogus documents within the meaning of s 5(1).

27. The applicant did not dispute that he submitted the documents with his application for the visa. It therefore finds that the applicant has caused bogus documents to be given. It follows that there has been non-compliance by the applicant with s 103 of the Act in the way described in the s 107 notice.

28. For the above reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

29. 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).

30. 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 reg 2.41 of the Regulations. The Tribunal has considered each of the circumstances as follows.

31. The Tribunal raised these with the applicant at hearing and the evidence provided as well as written evidence provided is considered below.

    The correct information

32. The non-compliance in this case relates to the provision of bogus documents. The s 107 notice did not particularise information that was said to be incorrect. Accordingly, the Tribunal gives neutral weight to this factor in its considerations.

    The content of the genuine document (if any)

33. The applicant has submitted when this criterion was raised that the documents in issue, being his father’s tax returns for assessment years 2019-20 and 2020-21 including the Form 16s submitted with the application and the subject of the s 107 notice, are genuine.

34. The applicant has always contended that the relevant tax documents submitted are the genuine documents. The Tribunal has considered all the submissions and documents the applicant has submitted, as well as his and the oral evidence of the witness that these documents are genuine but has found, for the reasons outlined above, that the documents are bogus documents within the meaning of s 5(1).

35. The Tribunal does not have the genuine Tax Returns for these years before it and does not know what these would show as to the applicant’s father’s income and whether they would show that the applicant’s father has sufficient funds to finance the applicant’s funds. It therefore does not have them before it to consider.

36. The Tribunal gives this consideration 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

37. One of the primary criteria for the grant of the Subclass 500 (Student) visa is that an applicant meets cl 500.214, the genuine access to funds criteria, which requires an applicant to meet his costs and expenses of his intended stay in Australia. Via the Financial Capacity Instrument LIN 19/98 evidence of financial capacity can relate to documentation of personal income. While he has provided evidence of the payment of fees paid prior to his arrival in the sum of A$12,300, this is only part of the study costs in Australia. The Tribunal therefore considers that the decision to grant the visa was therefore based, in part, on the bogus documents of his father’s tax returns for assessment years 2019-20 and 2020-21 including the Form 16s submitted with the application and the subject of the s 107 notice.

1. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

   The circumstances in which the non-compliance occurred

2. The non-compliance occurred when the bogus documents were provided in support of the Subclass 500 Student visa application. The applicant, as well as the witness contend the documents submitted by the applicant with his application for the Student visa and the subject of the s 107 notice are genuine. The Tribunal has considered all the submissions and documents the applicant has submitted, as well as his and the oral evidence of the witness that these documents are genuine but has found, for the reasons outlined above, that the documents are bogus documents within the meaning of s 5(1).

3. The Tribunal gives this neutral weight.

   The present circumstances of the visa holder

4. In his evidence to the Tribunal at hearing the applicant referred to his study in Australia and the effect that the cancellation of his visa would have on him. He notes he was enrolled to study the [Course 1] in a packaged course leading to a [Course 3] but was unable to study or complete any course as a ‘no study’ condition was placed on his visa. The Tribunal accepts such a condition was placed on his visa and accepts he was unable to study or achieve any course progress as a result as also indicated in the PRISMS record. It draws no adverse inference or does not rely on the PRISMS record on file noting his lack of course progress as he had a ‘no study’ condition placed on his visa.

5. He also said he was initially going to study the courses in Melbourne and then moved to Sydney. Following the hearing he provided evidence of a money transfer dated 17 June 2021 to [College 1] in the sum of A$12,300 for the packaged course leading to a [Course 3].

6. He said his aim is to complete these courses to work as [an occupation 2]. He said he has wasted more than a year as he has been unable to complete the course. He said he wants to travel to [Country 1] and work as [an occupation 2] and maybe start a [business 1]. He said he works in [an industry 1] company. The Tribunal asked if he wanted to work as [an occupation 2] and open a [business 1] why he would not work in this sector in Australia, gaining experience and he said it does not feel good. He said he doesn’t have the qualifications and he can only gain work [at an assistant level]. The Tribunal questioned whether his lack of work in the sector, even working [at this level] undermines his claim he is in Australia to study to be [an occupation 2].

7. The Tribunal asked why he could not return to India and undertake courses so he could be [an occupation 2] and he said that the courses in India are not as good and the courses in Australia are far better, which the Tribunal accepts.

8. He and the witness referred to the difficulties he has faced since the cancellation of the visa, including lack of sleep, anxiety and depression and that he wants to finish the courses. The Tribunal asked whether he had sought medical attention for these symptoms and he said he had not. The Tribunal questioned the severity of these affects when he had not sought assistance from a medical practitioner and was able to continue working, albeit part-time, in [an industry 1] company.

9. The applicant was given until 19 May 2023 to provide evidence of payment of fees to his education provider. He provided evidence of having paid A$12,300 to his education provider in 2021.

10. The Tribunal accepts that he has been unable to study and achieve any course progress since the cancellation of the visa as he has a ‘no study’ condition placed on his Bridging visa. It has considered that prior to coming to Australia he paid A$12,300 to enrol in the [Courses 1 and 2] and [Course 3]. It views as of concern that his reason for studying is to become [an occupation 2] and open a [business 1] in the future when he has not worked in this area, even [at an assistant level], since his arrival in Australia. The Tribunal is of the view if this was his career aim he would want to work in this area in Australia to gain work experience, which he has not. It is of the view this undermines he is in Australia to study and paid fees to study for his future career aim.

11. It has also considered the mental affects he claims he has encountered but notes these affects are a result of having the visa cancelled due to his provision of a bogus document. As he has not visited a medical practitioner and has been able to continue working part-time it does not accept these are significant.

12. The applicant said he is not currently in a relationship and has not interacted with the community. He said he is not sending money to his family in India but they are concerned as to his visa being cancelled and the effects this has had on him.

13. The Tribunal gives this consideration neutral weight.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

14. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

15. The Tribunal finds there are no other instances of non-compliance by the applicant known to the Tribunal. The Tribunal gives this factor neutral weight.

    The time that has elapsed since the non-compliance

16. The non-compliance occurred when the application was made on 23 June 2021. While the Tribunal acknowledges that since this period the applicant has established himself in Australia, the Tribunal notes the applicant has been on notice, since being notified by the Department on 22 March 2022 that there was evidence of non-compliance with the visa application which may result in the cancellation of the visa.

17. In these circumstances the Tribunal gives this neutral weight.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

18. There is no information before the Tribunal which suggests that there have been breaches of law by the applicant since the non-compliance.

    Any contribution made by the visa holder to the community

19. At hearing the applicant indicated he had not contributed to the community. The Tribunal gives this consideration neutral weight.

20. 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.

    Whether there would be any consequential cancellations under s 140

21. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor neutral weight.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

22. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

23. If the visa remains cancelled, the applicant would continue to hold a Bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however, there are some allowances in legitimate circumstances for relevant Bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

24. If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under public interest criterion (PIC) 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore. There is no restriction on which visa he can apply for once he leaves Australia. However, those are also intended and legitimate consequences of cancellation.

25. The Tribunal gives this consideration neutral weight.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

26. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.

27. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

100.   The Tribunal gives this consideration neutral weight.

Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

101.   The Tribunal has considered that he paid A$12,300 to enrol in [Courses 1 and 2] and [Course 3]. It views as of concern that his reason for studying is to become [an occupation 2] and open a [business 1] in the future when he has not worked in this area, even [at an assistant level], since his arrival in Australia. The Tribunal is of the view if this was his career aim he would want to work in this area in Australia to gain work experience, which he has not. It is of the view this undermines he is in Australia to study and paid fees to study for his future career aim. It has concerns that his purpose to travel to and stay in Australia was and is as a genuine student. The Tribunal gives this factor neutral weight in exercising its discretion.

102.   It has also considered his mental affects claimed as a result of the cancellation but for the reasons outlined above gives this neutral weight in exercising its discretion. It also has considered his family’s concerns in India but gives this neutral weight in exercising its discretion.

103. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant had given bogus documents with his visa application and that he did not comply with s 103 of the Act. The Tribunal has found that there are grounds for cancelling his visa.

104.   The Tribunal’s concern is that the decision to grant the visa was based on bogus documents because the applicant’s father’s income would have been relevant as to whether he had genuine access to funds, even taking into account the payment of A$12,300 fees. This factor also weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

105.   The Tribunal has considered the applicant’s circumstances individually and cumulatively. It has considered his evidence that he has paid significant funds to study [the chosen courses] as he wants to be [an occupation 2] and open a [business 1] on return and the claimed mental affects the cancellation of the visa has had on him. It has accepted that he has been unable to study since the cancellation of the visa due to a ‘no study’ condition being placed on his visa. It therefore does not rely on any information that indicates that he has not achieved course progress as the evidence is he has been unable to study.

106.   The Tribunal is satisfied that there are limited aspects that are favourable to the applicant and as outlined above there are factors that weigh in favour of the exercise of the Tribunal’s discretion to cancel the visa. The Tribunal is mindful of the seriousness of providing bogus documents in support of an application for the visa.

107.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

108.   The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Gabrielle Cullen
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

103Bogus 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).

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.