2208364 (Migration)

2208364 (Migration) [2023] AATA 2204 (16 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2208364
MEMBER:Gabrielle Cullen
DATE:16 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 June 2023 at 12:35pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had provided incorrect information in his application – there was non-compliance with s 101 by the applicant in the way described in the s 107 notice – mental health – has not visited a medical practitioner – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101, 107, 109, 359, 375
Migration Regulations 1994 (Cth), cl 500.212
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 Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India. On 2 December 2021 he made an application for a Student (Higher Education Sector) (Subclass 500) visa. On 17 December 2021 he was granted the visa, valid to15 March 2024. He arrived in Australia on [date] January 2022.
On 4 May 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.
The applicant did not provide a response to the NOICC.
On 31 May 2022, the delegate cancelled the applicant’s Student visa under s 109 on the basis that he had not complied with s 101(b) of the Act because of information provided to the Department.
On 8 June 2022, the applicant applied to the Tribunal for a review of that decision and attached the decision of the Department.
On 8 May 2023 the Tribunal invited him to appear before the Tribunal on 5 June 2023 at 10am to give evidence and present arguments relating to the issues arising in his case.
On 8 May 2023 the Tribunal wrote to the applicant informing him of the existence of a s 375A non-disclosure certificate issued by the Department on 14 April 2023 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.
It invited him to comment on the validity of the s 375A certificate by 5 June 2023 and advised he would also be given an opportunity at the hearing on 5 June 2023 to discuss this matter and provide oral submissions.
The applicant appeared before the Tribunal on 5 June 2023 to give evidence and present arguments. He was assisted by an interpreter in the Gujarati and English languages.
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
The Tribunal wrote to the applicant advising that there is a 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 reasons given by the Department for the certificate.
The Tribunal outlined at hearing, via the process outlined in s 359AA, the information it covered in general with regard to an anonymous allegation made that he used false study and financial documents to obtain his Student visa. It also outlined information from the Department regarding his interview and search by the Border Force Officer on 8 January 2022, as also outlined in the NOICC and Department decision, that led the Department to find he had provided incorrect information regarding his education in India.
The applicant responded at hearing, as outlined in further detail below, that he obtained the level of education referred to in his application for the visa.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
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.
Did the notice comply with the requirements in s 107?
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b).
The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 31 May 2022. The information indicates that on 2 December 2021 he applied online to the Department for a Student (Higher Education Sector) (Subclass 500) visa to undertake a Master of [subject] from 14 February 2022 to 15 January 2024. It notes he was assessed by the delegate as meeting all the relevant criteria and a Student visa was granted on 17 December 2021, valid to 15 March 2024.
The Department decision notes that in the NOICC dated 4 May 2022, the delegate set out the particulars of the non‑compliance.
In particular, the delegate noted the applicant, in his application form, included at page 8, under the heading “Highest level of schooling”, the following information:
Give details of the applicant's highest level of schooling completed outside Australia
Highest level of schooling completed: Secondary school - Year 12 or equivalent
Course name:            HSC 12TH
Institutionname:           [Institute 1]
Country of institution:         INDIA
The delegate also noted that on page eight of the application form, under the heading “Education History details”, he provided the following information:
Give details of all past and current studies at secondary level and above.
Qualification:   Bachelor Degree in Science, Business or Technology
Category of study:        Computer Science
Field of study:        Computer Graphics
Course name:        Bachelor Of Computer Application
Institution name:       [University 1]
Country of institution:       INDIA
Date from:          29 Apr 2016
Date to:            30 Jun 2019
The delegate noted that on page 14, under the heading Declarations, he answered ‘yes’ to Warning - Giving false or misleading information is a serious offence.
The delegate noted that the applicant also declared that he had read and understood the information provided in the application, provided complete and correct information in every detail on the form, and on any attachments to it and understood that if documents were found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
The delegate also referred to the following Affidavit submitted by the applicant with his application for the visa:
I [do] solemnly affirm and declare as follows:
All my documents like marks sheets and certificates, C.A reports, etc. are genuine.
I state under oath that all the documents are genuine and have been procured from the sources directly by me.
I am solely responsible and ready to face the consequences for any incorrect or fraudulent information if found.
Whatever stated here in above is true and correct to the best of my knowledge and belief. I know that making a false affidavit is an offence.
The delegate noted that in the applicant’s genuine temporary entrant statement attached to the application, he noted the following:
About my Previous Education:
I completed my 10th standard in 2014 from the [Institute 1]. After that, I completed my 12th standard from the same [institute] in 2016. After that, I did BCA from [University 1] from 2016 till 2019.
The Department’s Decision Record indicates that based on the information provided by the applicant in his visa application form and the supporting documents, he was granted the Student (Higher Education Sector) (Subclass 500) visa on 17 December 2021, valid to 15 March 2024.
The Department’s Decision Record indicates that:
On arrival to Australia on [date] January 2022, a Border Force officer conducted a full search of your baggage, during the search, a photocopy of educational certificates in your name was located. The Officer presented the photocopy of educational documents to you and asked you to verify your claims of education.
The Officer states that you had limited English level skills and did not reply. The officer asked you to give any details of your Year 10, Year 12 School or Bachelors of Computer Administration (BCA), which you claimed to have completed in the year 2014, 2016 & 2019 respectively.
You replied in your native language ‘Hindi’ that you did not attend any school or educational institution for your education. You stated that Avec group abroad visa and education consultant organised the required educational and financial documents for your visa application.
You said that you arrived in Australia to conduct a Master's Degree from the University [name], however, you could not provide any further details about your future education arrangements.
The applicant did not respond to the NOICC.
The delegate considered that the applicant had had not complied with s 101(b) because he had provided incorrect information in his application as he did not complete his year 10 to 12 education from 2014 to 2016 at the [Institute 1], and he did not receive a Bachelor of Computer Application from [University 1] in 2019 as claimed. The delegate found that he had not provided correct answers in the declarations in the application for the visa, as outlined above. The delegate found that his Student visa was therefore liable to be considered for cancellation under s 109 of the Act.
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 incorrect information in his application for the visa and attached genuine temporary entrant statement. The incorrect information related to him completing: his year 10 to 12 education from 2014 to 2016 at the [Institute 1]; and a Bachelor of Computer Application from [University 1], studied from 2016 to 2019. It also raised with him, via s 359AA, the gist of the information referred to in the s 375A non-disclosure certificate, including the allegation made. In addition, it raised with him, via s 359AA, the Provider Registration and International Student Management System (PRISMS) record on file, which indicates that enrolment in the Master of [subject] was cancelled on 1 June 2022 following the receipt of visa data from the Department.
The applicant responded orally at hearing and said the information in the application is correct. He said when he arrived from India, he was stopped by Border Force officers who asked him questions about his education. He said he was scared and could not answer properly as it was the first time he had travelled internationally. He said they then took hm to a room and asked him a lot of questions. He said he was mentally disturbed and could not reply to them because of his state of mind. He said they found the education certificates and he could not answer properly as he was very tense. He said after some time they said there was no problem and he was allowed to pass. He said he then received the notice regarding the cancellation of his visa. He said he then contacted his agent in Melbourne to provide the original education certificates but he said his agent was in India when he asked him to give them to him. The Tribunal asked why he had not since provided the original education documents and he said he contacted his agent who gave excuses and now he will not respond to him. He said the agent is Peresh Patel.
The Tribunal raised with him its concern that it is of the view that when asked of his education history he should be able to reply consistently with the information in his application, as it is basic information, even if he was scared, mentally disturbed, not in the correct state of mind and it was the first time he had travelled internationally. It questioned the truth of his reasons as to why he could not give the Border Force officer information about his education history that was consistent with the history outlined in his application for the visa and attached documents found in his possession.
The Tribunal asked him about his education in India and he confirmed that he completed a Bachelor of Computer Application at [College 1] from 2014 to 2017. It asked him for details of the subjects he studied, and he said he does not have the details as he studied the course many years ago, commencing in 2014. It asked him whether [College 1] is the education provider’s official name and he said it is known as [name] Institute. It raised with him its concern that he could not provide details of the subjects studied, and he said he studied C+ and C++ language. He said from 2017 until he travelled to Australia he was working in [industry].
The Tribunal raised with him that his information as to his study history was inconsistent with that provided in the application for the visa, and referred to where and when he had studied, as outlined in his application for the visa. He said [College 1], where he studied the Bachelor of Computer Application, is affiliated to the University, as outlined in his application for the visa. The Tribunal noted that he said he studied the course from 2014 to 2017, which is inconsistent with his application. It raised with him its concern he had provided incorrect information as to his education in the application for the visa. He said the original documents are with the agent.
The Tribunal questioned whether the educational certificates are genuine.
He said he wanted to study the Master of [subject] at [named university] but could not as his visa was cancelled.
He said his agent submitted his application. He said he met with the agent and gave him the information and documents, and the agent completed and submitted the application. The Tribunal outlined s 98 of the Act. He initially said the agent cheated him and did everything, but when asked further, he said he meant that the agent has not provided the original documents related to his study as outlined in the application for the visa. He said the information regarding his study as outlined in the application is correct.
He said he is currently not working and then said he is working 20 hours a week as this is a condition of his visa, but he wants to work full-time to pay off his debt in India. He said he is not in a relationship. He said he has applied for a protection visa as he is scared to return as he owes money. He said that he wants the visa not to be cancelled so he can work 40 hours a week to pay off the debt.
The Tribunal discussed with him the discretionary criteria, and his evidence, where relevant, is outlined below.
Consideration
In determining whether the applicant has provided incorrect information 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.
The applicant has repeatedly indicated at hearing that he studied as claimed in his application and attached statement. He repeatedly indicated at hearing that his agent has the original documents to confirm this study but has ‘cheated him’ as he cannot be contacted to provide these documents.
However, for the reasons that follow, the Tribunal does not accept that the applicant was enrolled in and undertook the courses claimed in his application for the visa and attached statements.
Firstly, the Tribunal places significant weight on the evidence, as outlined in the s 107 notice, that, on [date] January 2022, a Border Force officer conducted a full search of the applicant’s baggage, locating education certificates that were presented to the applicant and which stated that he completed courses in the years 2014, 2016 and 2019 respectively. However, the applicant replied in Hindi that he did not attend any school or educational institution for his education and that the Avec group and an education consultant organised the required educational documents for his visa application. When this was raised with him at hearing, he referred to being scared, tense, not in a good state of mind and mentally disturbed as he had not travelled internationally before. The Tribunal accepts that being questioned by Border Force officials would have been scary and mentally difficult and that the applicant would have been nervous and would not have been in a good state of mind; however, it does not accept that despite this, the applicant would be unable to provide basic information as to the education he had completed as outlined in the application and supporting statement.
Further, of significant concern is that when asked at hearing about his education in India, the applicant gave evidence that was inconsistent with that provided in the application. The Tribunal is of the view if he had provided correct information as to his education in his application, his oral evidence at hearing would also be consistent with this claimed education. Specifically, he said and confirmed that he completed a Bachelor of Computer Application at [name] College from 2014 to 2017, and then worked in [industry] until he departed for Australia. When asked for details as to the subjects he completed, he answered with limited detail, as outlined above. When the concern was raised that his evidence was inconsistent with information provided in the application, and the Tribunal outlined that information in the application, he said his college is affiliated with the University. The Tribunal does not accept this response and is of the view that if it was affiliated, he would have said so when first asked and said he studied the bachelor course in the same years as those outlined in the application. This undermines his claim he studied the Bachelor of Computer Application at [University 1] from 29 April 2016 to 30 June 2019 and he undertook the 10th standard in 2014 and 12th standard (HSC) in 2016, as at hearing he said this is when he was completing his bachelor’s course (from 2014 to 2017).
In making this finding, the Tribunal has considered the copies of documents the applicant has submitted, which indicate that he completed the education as claimed in his application and that his agent has cheated him by not providing the originals of the documents; however, these do not overcome the Tribunal’s concerns that he has provided incorrect information as to his education.
It also notes that an allegation was made, as raised with him via s 359AA that he provided false education documents with his application, but the Tribunal has not placed any weight on this in making this decision as it was made anonymously.

The evidence of the applicant is that he met with his agent who then filled in, completed and submitted the application. He has always maintained he completed the education as claimed in the application. Under s 98, an applicant who does not fill in his application form is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf, and under s 99 of the Act, any information that the applicant gave or provided or caused to be given or provided on his behalf, to an authorised system (the online application) is taken, for the purposes of s 101(b), to be an answer to a question in the applicant’s application form.
The Tribunal is therefore of the view that the applicant has provided incorrect answers in his application for the Student visa pertaining to studying and completing this year 10 in 2014 and year 12 (HSC) in 2016 at the [Institute 1], and studying a Bachelor of Computer Application from [University 1] from 2016 to 2019 as claimed. It therefore finds there has been non-compliance with s 101 in the way described in the notice.
For the above reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations). The Tribunal has considered each of the circumstances.
The Tribunal raised these with the applicant at hearing, and the evidence provided, as well as the written evidence provided, is considered below.
The correct information
The applicant has submitted, when this criterion was raised, that he provided correct information as to his education, including completing his year 10 in 2014 and year 12 (HSC) in 2016 at the [Institute 1], and studying a Bachelor of Computer Application from [University 1] from 2016 to 2019, as claimed in his application. However, for the reasons outlined above, the correct information is that the applicant did not enrol in, study or successfully complete his year 10 in 2014 and year 12 (HSC) in 2016 at the [Institute 1], or study a Bachelor of Computer Application from [University 1] from 2016 to 2019. The applicant’s successful completion of these, especially a Bachelor of Computer Application from [University 1] from 2016 to 2019, would have been relevant evidence considered when accepting that the applicant met the genuine temporary entrant criterion under cl 500.212 of Schedule 2 to the Regulations, and ultimately the grant of the Student visa. Ministerial Direction No.69, Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications, under 11(e), refers to previous study and qualifications in assessing this criterion.
The integrity of the migration programme relies on, amongst other things, applicants providing correct information in visa application forms and in their dealings with the relevant agencies including the Department.
The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The content of the genuine document (if any)
The non-compliance in this case relates to the provision of incorrect information. The s 107 notice did not refer to the submission of a bogus document. Accordingly, the Tribunal gives neutral weight to this factor in its considerations.
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
One of the primary criteria for the grant of the Subclass 500 (Student) visa is that the applicant meets the genuine temporary entrant criterion. Direction No.69 requires the decision maker to consider the applicant’s potential circumstances in Australia. In particular, at 11(e), the Direction directs the decision maker to consider the applicant’s previous study and qualifications.
The Tribunal considers that the decision to grant the visa was therefore based, in part, on the incorrect information in the visa application form as to the applicant’s successful completion of the Bachelor of Computer Application from [University 1], studied from 2016 to 2019. This is particularly so as he was applying to undertake a Master of [subject] degree. The Tribunal has considered the applicant’s oral evidence and submissions but has found above that he has provided incorrect information as to his education.
While the applicant claimed his agent filled in and completed the application, the applicant has always maintained the information provided was correct.
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
The circumstances in which the non-compliance occurred are outlined above.
The non-compliance occurred when the incorrect information was provided in support of the Subclass 500 Student visa application. The applicant contends the information submitted in his application and supporting documents for the Student visa, and the subject of the s 107 notice, is correct. The Tribunal has considered all the submissions and documents the applicant has submitted, as well as his oral evidence, but has found he provided incorrect information as to his education in the manner outlined in the s 107 notice.
While the applicant submitted that his agent completed and submitted the application, when asked how, he said he was cheated, and that the agent has the original documents concerning his education. However, he indicated that the education history set out in the application is correct. He said the agent cheated him by taking the original documents. The Tribunal has considered this claim but is of the view that the above concerns, including the lack of consistency of his evidence at hearing with the information in the application as to his education, outweigh his claim that the original documents are with his agent who he cannot contact.
The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The present circumstances of the visa holder
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.
The applicant said he is not in a relationship and while he initially said he is not working, he then said he is working 20 hours a week as this is a condition of his visa, but he wants to work full-time to pay off his debt in India.
As to the effect of cancellation of the visa on his study, the applicant said he is depressed and can only find ‘little work’. He said he had not seen any medical practitioner or obtained help for the depression. He said he has no job, cannot study and keeps thinking the same thoughts. The Tribunal asked why he did not return to India and study the same course. He said he cannot return to India and study as he borrowed money to pay the agent and until he has finished paying off the debt to his lenders he is scared to return. He said he wants the visa to be granted so he can pay off his visa.
The Tribunal accepts that he has been unable to study and achieve any course progress since the cancellation of the visa. As he was unable to provide information as to the master’s degree he was going to study when questioned by Border Force officials, and he has not studied the courses in India he has claimed in his application, for the reasons outlined above, the Tribunal is of the view that his purpose for coming to Australia was not to study.
The Tribunal has also considered the mental effects the applicant claims he has felt but notes these effects are a result of having the visa cancelled due to his provision of incorrect information. As he has not visited a medical practitioner and has been able to continue working part-time, the Tribunal does not accept these are significant.
The applicant said he is not currently in a relationship and has not interacted with the community.
The Tribunal accepts he is concerned about his situation and his family in India as he owes money to money lenders there, but gives this no weight as he borrowed money and paid the agent to obtain a Student visa to travel to Australia using incorrect information.
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
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
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
The non-compliance occurred when the application was made on 2 December 2021. While the Tribunal acknowledges that since this time, the applicant has established himself in Australia, the Tribunal notes the applicant has been on notice, since being notified by the Department on 4 May 2022, that there was evidence of non-compliance with the visa application which may result in the cancellation of the visa.
In these circumstances the Tribunal gives this consideration neutral weight.
Any breaches of the law since the non-compliance and the seriousness of those breaches
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 holder to the community
At hearing the applicant indicated he had not contributed to the community. The Tribunal gives this consideration neutral weight.
Other considerations
While the above 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 Procedures 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
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
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.
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 be extended. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. He said he did not want to depart as he has spent a lot of money getting to Australia and needs to pay back the money lenders. He has, however, applied for a protection visa and been granted a Bridging visa while that application is assessed. Detention is therefore a remote possibility as a result of the cancellation of his student visa.
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 of the Regulations 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.
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
When asked by the Tribunal whether he had any fear of returning to India, he said he feared return from the people he borrowed money from to come to Australia. He said he wants to be able to work full-time in Australia so he can pay back the money borrowed. He said he has applied for a protection visa and been granted a bridging visa which allows him to work for only 20 hours. The Tribunal is of the view that his claims can be fully considered via his protection visa application, which he has made. The Tribunal is of the view that this is the appropriate mechanism for assessing his claims of fearing return to India.
He also referred to concern for his parents and family from the money lenders but as they are in India, there is no likelihood Australia’s non-refoulement or protection obligations will be breached by the cancellation of his visa.
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.
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)
The Tribunal accepts there is a degree of hardship for an applicant whose visa is cancelled in relation to the inability to obtain Australian qualifications. As to how cancelling the Student visa has and would affect study, he said he wants to study the Master of [subject]. When asked why he wants to do this course, he said for a bright future, for a good job and to open a business. He said he worked in [industry] in India. However, given its view that he did not obtain the qualifications outlined in the application for the visa and the evidence that he did not know much about his degree when asked by the Border Force officials, the Tribunal is of the view that the applicant did not come to Australia with the purpose of pursuing his education and is not staying for that purpose either. It gives this neutral weight in exercising its discretion to cancel the visa.
The applicant said that without a visa, it is difficult to obtain a good job so that he can pay back the money he borrowed to come to Australia. He said his parents are depressed and scared and he needs to be able to work full-time to pay back the money lenders. He said he is depressed as he does not have full-time work rights. He said he is working 20 hours a week cleaning and as a kitchen hand. He said he applied for extended work rights on his bridging visa but he was not successful. The Tribunal notes that even if the visa is not cancelled, he would only be able to work for 20 hours per week on his Student visa. It gives this neutral weight in exercising its discretion to cancel the visa.
The Tribunal has also considered the mental effects the applicant claims he has felt but notes these effects are a result of having the visa cancelled due to his provision of incorrect information. As he has not visited a medical practitioner and has been able to continue working part-time, it does not accept these are significant. It gives this neutral weight in exercising its discretion to cancel the visa.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant gave incorrect information in his visa application and that he did not comply with s 101(b). The Tribunal has found that there are grounds for cancelling his visa.
The Tribunal’s concern is that the decision to grant the visa was based on incorrect information because the applicant’s past study would have been relevant to the decision of whether the applicant met the genuine temporary entrant criterion. This factor also weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The Tribunal has considered the applicant’s circumstances individually and cumulatively. 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 incorrect information in support of an application for a visa.
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
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.
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.

[2023] AATA 2204

16 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice