2211128 (Migration)

2211128 (Migration) [2024] AATA 755 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ray Turner
CASE NUMBER:  2211128
MEMBER:James Silva
DATE:25 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 25 January 2024 at 5:04pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – issued in association with protection visa application – incorrect answers given in previous student visa application – previous identity and protection visa refusal not declared – genuine temporary entrant – discretion to cancel visa – significant and deliberate non-compliance conceded – separation from first husband and desire to make a fresh start – claims of domestic violence, mental health and lack of English – student visa applications refused and applications for review withdrawn – protection visa application in progress – cancellation would not lead to removal – time since non-compliance, family ties, training and employment in sector with labour shortages, mental health and financial impact – decision under decision set aside
LEGISLATION
Migration Act 1958 (Cth), ss 48(1)(b)(ii), 101(b), 103, 107, 105(1), 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 4, condition 4020
CASES
MIAC v Khadgi (2010) 190 FCR 248
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475; 37 ALJR 182; [1964] ALR 517
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K 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 010 (Bridging A) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The review applicant (former visa holder, ‘applicant’ in this decision) is a national of Bangladesh, who claims to have been born in [Year]. She was granted a Bridging A visa on 5 November 2021. On 27 July 2022, the delegate issued a Notice of Intention to Consider Cancellation (NOICC, s.107 notice) because the delegate formed the view there were grounds for cancelling the applicant’s visa under s.109. The applicant responded to the NOICC on 28 June 2022[1]. On 27 July 2022, the visa was cancelled. The applicant seeks review of the decision to cancel the visa.
[1] The applicant’s statement of 24 June 2022, and legal submission dated 28 June 2022.
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in a student visa application dated 7 November 2019, and that after considering the applicant’s NOICC response and other relevant circumstances, the visa should be cancelled.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Background to this matter
The applicant is a Bangladeshi woman, who has variously given her date of birth as [Date 1] and [Date 2] (hence, aged [Age 1] or [Age 2] at the time of this decision).
The applicant first arrived in Australia [in] June 1999, on a passport in the name [Identity 1] (DOB [1]) (Identity 1). She accompanied her first husband, [Mr A]. On 1 July 1999, her first husband lodged a protection visa application which included the applicant as his dependant. On 12 August 1999, the visa application was refused. The applicant and her husband sought merits and judicial review of the refusal decision, unsuccessfully. [In] November 2004, the applicant departed Australia.
The applicant returned to Australia [in] July 2019, on a passport in the name [Identity 2] (DOB [2]) (Identity 2), as the holder of a visitor (subclass 600) visa.
§ On 26 September 2019, she lodged a student (subclass 500) visa, which was granted on 7 November 2019. Note: it is information provided in this visa application that formed the basis for the bridging A visa cancellation that is the subject of this review.
§ On 24 August 2021, the applicant applied for a further student visa application. She was granted a bridging A visa in association with that application, with condition 8105 (work restriction), valid until final visa determination or withdrawal.
   On 14 March 2022, the delegate sent a NOICC relating to the bridging A visa granted on 24 August 2021.
§ The visa was cancelled on 9 May 2022.
§ On 11 May 2022, the applicant applied to the AAT for review of the decision to cancel the visa.
   On 4 April 2022, the delegate refused the student visa application on the basis that the applicant did not meet cl.500.217 (Public Interest Criterion 4020, based on false or misleading information having been provided).
§ On 13 April 2022, the applicant applied to the AAT for review of the visa refusal decision.
   On 24 June 2022, the applicant withdrew both review applications.
§ On 1 November 2021, the applicant applied for a protection visa. This application is still before the Department.
   On 5 November 2021, she was granted a bridging A visa in association with the protection visa application.
   As noted above, on 14 June 2022, the Department sent the applicant the NOICC relating to the bridging A visa granted on 5 November 2021. The delegate cancelled the visa on 27 July 2022.
§ The applicant currently holds a bridging E visa granted on 11 August 2022. This has conditions 8207 (must not engage in any studies or training); 8401 (report at the time/s and place specified); 8506 (notify new address; and 8510 (show valid passport).
In sum, the critical dates in this review are: (a) information provided on 26 November 2019, in the student visa application; and (b) the cancellation on 27 July 2022 of the bridging visa (granted on 11 August 2022 in association with the applicant’s protection visa application).
The applicant’s health
The applicant has presented claims, and provided supporting materials, relating to her mental health and a number of psychosocial factors.
The chronologically first document is a referral dated 18 March 2022 (four days after the first NOICC) from the applicant’s GP [Dr B], requesting that the ‘first available’ healthcare professional see the applicant for ‘severe depression’. It lists medications not directly linked with mental health issues.
Following the hearing, the applicant submitted a letter from [Dr B] stating that she (the applicant) has been her patient since January 2020. She presented ‘several times’ with medical health problems (‘severe anxiety, stress and depression, trauma’ [sic]), and the GP referred her to mental health experts after she reported suicidal thoughts. No further details are provided.
[Ms C], a clinical social worker, wrote on 25 March 2022 that she interviewed the applicant on 24 March 2022, following a GP referral two days earlier. The assessment is based on information provided by the applicant during the session, and unspecified other information sources. [Ms C] states that, based on the applicant having completed a DASS questionnaire, she showed a stress score ‘in extremely severe range’. The Tribunal notes that the DASS questionnaire is self-reporting instrument designed to measure the emotional states of depression, anxiety and stress, and an indicator of emotional health, rather than a stand-alone diagnostic tool.
For the main part, the report addresses the applicant’s background and the circumstances in which she failed to comply with s.101(b) and s.103. [Ms C]’s report appears to accept the applicant’s account of her past experiences at face value, without critical evaluation; and is clearly directed at assisting the applicant obtain a favourable migration outcome. These matters appear to lie outside [Ms C]’s field of expertise, and the Tribunal therefore places little weight on these aspects of her letter.
[Dr D], psychiatrist, wrote on 11 September 2023 that he has seen the applicant for ten sessions from June 2022.[2] His summary notes a ‘history of repeated and severe physical, psychological and sexual abuse in Bangladesh’, which the Tribunal takes to be the applicant’s history as related to [Dr D]. He states that she has been diagnosed with Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. She receives medications and psychiatric support, and is in the care of social worker/counsellor. He opines that she has ‘complex mental health issues’ that require continued treatment.
[2] The applicant produced receipts for medical consultations with [Dr D] (June, August, October, November 2022; March, April, June, July, September 2023), in the context of claiming that the visa cancellation would result in a loss of income, and capacity to pay for essential medical treatment.
The applicant provided copies of seven of [Dr D]’s notes from the sessions, between July 2022 and July 2023. These report anxiety and insomnia. Several note aspects of the applicant’s fears relating to Bangladesh, and her wish to obtain permanent residency in Australia. [Dr D]’s most recent letter, dated 10 January 2024, notes that the applicant continues to rely on medication for insomnia and mood stabilisation, and comments that ‘she is accepting of the uncertainty regarding her residency status.
Significantly, the applicant’s evidence relating to her mental health dates from March 2022, shortly after the issuance of the first NOICC (on 14 March 2022). The Tribunal enquired whether she experienced any mental health problems between her most recent arrival in Australia in July 2019, and her presentation to health professionals in March 2022 (i.e. after receiving the first NOICC). The applicant initially replied ‘no’, but then went on to state that she had experienced nightmares, and once had suicidal ideations. She said that she had mentioned these some six or seven months before she saw [Ms C] and [Dr D]. The Tribunal notes, however, that [Dr B]’s referral note of 18 March 2022 mentions only ‘severe depression’; and her letter is vague about the applicant’s history.
At hearing, the applicant appeared frustrated and sometimes tearful. The Tribunal consulted with the applicant and the representative to ensure that she could present her case effectively. It is satisfied that the applicant – through her oral evidence, her representative and written submissions – had a fair opportunity to present her claims and evidence.
The applicant expressed her regret at having provided incorrect information in her student visa application, emphatically stating that she has been the victim of domestic violence and other misfortunes in Bangladesh. Relevantly, however, that there is no documented evidence of the applicant having raised any mental health issues with her doctor or others, prior to March 2022 (apart from [Dr B]’s mention of the applicant having been her patient since early 2020, and having raised mental health issues at unspecified times).
The available material suggests a correlation between the applicant’s reported stress and the Department’s first NOICC. In the Tribunal’s view, it casts doubt on whether her reported mental health issues are in fact attributable to – and therefore evidence of – any specific past experiences in Bangladesh, and/or of their lasting impact (including after the applicant’s latest arrival in Australia in July 2019).
Non-disclosure certificate
The Department file includes a certificate and notification under s.376, dated 4 January 2023. This certifies that disclosure of the material would be ‘contrary to the public interest because they disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods’. The Tribunal explained to the applicant that these documents contained details of the methods used by the Forensic Facial Image Examiner to conclude that [Identity 2] ([DOB 2]) and [Identity 1] ([DOB 1]) are one and the same person; and that the conclusions the examiners drew are not in dispute. The Tribunal advised its preliminary view that the certificate was valid. Neither the applicant nor the representative had any comments as to the validity of the certificate.
Did the notice comply with the requirements in s 107?
In the present case, the applicant has not raised concerns about whether the notice issued by the Minister’s delegate complied with s.107, and there is nothing in the materials before the Tribunal to raise questions about this. 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 s.107 notice described the non-compliance in the following way:
§ It identified non-compliance with s.101(b) of the Act, ‘Visa applications to be correct’: A non-citizen must fill in or complete his or her application form in such a way that: … (b) no incorrect answers are given or provided.
§ It set out incorrect answers that the applicant provided on a student visa application form lodged on 26 September 2019.
The incorrect answers identified in the s.107 notice were: -
Student visa application of 21 August 2021
§ The applicant gave her name as [Identity 2], born on [Date 2].
§ To the question (page three) ’Is the applicant currently, or have they ever been known by any other names’, she answered ‘No’.
§ To the question (page 17) ‘Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?’, she answered ‘No’.
§ On page 21, she provided declarations, stating that she had provided complete and correct information; that she understood the consequences of providing incorrect information; and that she had read and understood the information provided in the application.
Evidence of non-compliance
§ The Department matched the applicant’s image to that of a person named [Identity 1] ([DOB 1]).
§ Department records relating to [Identity 1] ([DOB 1]) indicated:
   She arrived in Australia on a temporary business visa (subclass 456) [in] June 1999, for a stay of one month.
   On 1 July 1999, she made an applicant for a protection visa, as the dependant of another person. This visa was refused on 1 July 1999. From 1999 to 2004, there were applications, all unsuccessful, for merits and judicial review of the visa refusal decision.
   [In] November 2004, [Identity 1] departed Australia.
The applicant responded to the NOICC in a statement dated 24 June 2022 and through her representative’s submission of 28 June 2022. She acknowledged[3] that she had provided incorrect information regarding her identity and her previous visa refusal. The detailed statement and submission go into the circumstances of her non-compliance with s.101(b).
[3] Paragraph 1 of the applicant’s statement, and paragraphs 8 and 9 of her representative’s submission
The submission of 12 September 2023 confirms (paragraph 13) that the applicant provided incorrect answers, relating to her former identity and her previous application, but notes that she corrected these in her statement of 24 June 2022. It contends that: ‘As such, as established by s.99 of the Act, no correct information exists’[4]. The submission goes on to instances in other areas of law where ‘the opportunity correct incorrect information is an important feature of justice’[5]. At hearing, the Tribunal asked the representative whether they were seeking to advance a particular legal interpretation of s.101(b) and s.107, in relation to ‘incorrect answers’. In reply, she answered that the submission merely pointed out that the applicant had provided correct answers.
[4] Paragraphs 14 and 17.
[5] For instance, citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475; 37 ALJR 182; [1964] ALR 517.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) and s.103 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).
Consideration of prescribed circumstances
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations, and addressed in the following paragraphs.
The correct information
The correct information arises from the following facts:
§ The applicant entered Australia using the name [Identity 1] ([DOB 1]). She applied for a protection visa and, on 12 August 1999, the application was refused; and
§ The applicant later re-entered Australia on a passport in the name [Identity 2] ([DOB 2]) and, when applying for a student visa application on 26 September 2019, denied ever having been known by any other name or been denied a visa previously.
§ Therefore, the correct information that should have been provided on the student visa application form was: (1) Page 3 - ‘Yes’, she had been known by another name’ (page three); and (2) Page 17 - ‘Yes’, she had had an application for further stay in Australia refused […]’.
As noted above, the applicant has addressed the circumstances in which the non-compliance occurred, in some detail. In relation to her name, she stated that her name at birth was [Identity 2], and that she only took the name [Identity 1] after her marriage. She claims that the passport in the name [Identity 1] is the only legal document in that name, and that her first ex-husband destroyed it. The Tribunal considers these points to be of only marginal relevance. The correct information relates to the applicant’s identity, which consists of not only to her family name, but also the date of birth used in conjunction with it. It does not matter whether the previous name appeared in one or more documents, or whether any such documents continue to exist.
The correct information relates to the applicant’s identity and her migration history. It is significant because it goes to the integrity of Australia’s migration system, and demonstrates the applicant’s deliberate effort to undermine it.
The Tribunal gives significant weight to this factor in favour of cancelling the visa.
The content of the genuine document (if any)
There is no question in this case as to the genuineness of documents. This factor is therefore not relevant.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

The applicant briefly acknowledged in her response to the NOICC that she was required to meet PIC4020 and not provide false information; and that the decision to grant her a student visa was based on incorrect information.
The incorrect information that the applicant provided goes to two criteria for the grant of a student visa:
§ PIC4020: This stipulates (among other things): (1) There is no evidence […] that the applicant has given […] information that is false or misleading in a material particular in relation to (a) the application for the visa; […]’
§ Regulation 500.212: ‘The applicant is a genuine applicant for entry and stay as a student because (a) the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant’s circumstances; and (ii) the applicant’s immigration history’.
The correct information, had it been before the delegate, would have raised questions in relation to the application of PIC4020, and in particular whether she genuinely intended to stay temporarily, having regard to her immigration history. While the applicant may have been able to explain her use of a different name (for instance, with reference to a previous relationship), the use of a different date of birth and her migration history in Australia (even as the dependant of her former partner) would have attracted scrutiny.
In the Tribunal’s view, the decision to grant the student visa was based in large part on the incorrect information.
The Tribunal places significant weight on this factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant has addressed in detail the circumstances in which the non-compliance occurred. The submissions, the applicant’s statement and the witness statements address the circumstances of the applicant’s non-compliance (in November 2019), but also provide contextual information relating to: (a) the applicant’s migration history; (b) general country information; and (c) her mental health.
These circumstances form part of the applicant’s protection claims, and she implicitly requests the Tribunal to make findings relating to these. However, for the reasons stated below, the Tribunal does not consider it necessary or appropriate to make firm findings of fact in relation to these matters, for the purpose of this decision.
The applicant’s role in providing the incorrect information: The applicant, in her statement of 24 June 2022 and through her representative’s response to the NOICC, acknowledged that she provided incorrect information. She wrote that she provided the incorrect information in order to make a fresh start, and without realising the consequences of doing so.
However, in letters dated 24 June 2022, both the applicant’s sister [Mrs E] and her close friend [Mr F] attributed responsibility to the migration agent.
§ [Mrs E] wrote: ‘My sister […] relied on the agent to fill up the form for her. […] the agent failed to put her first husband’s name in the student visa application’.[6]
§ [Mr F] reported the applicant’s comment that she is ‘presently facing cancellation of her visa due to the migration agent who made errors in her student visa application’. He also reported the applicant’s comment that, had she understood English properly, ‘she would never [have] permitted the migration agent to make that mistake’.
§ In a similar vein, [Ms C]’s psychosocial report of 25 March 2022 recounts the applicant’s statement that she made an error in the student visa application, essentially by not thoroughly checking what the migration agent had written.
[6] The Tribunal takes the reference to ‘her first husband’s name’ to mean the applicant’s name ‘[Identity 1]’.
The Tribunal prefers the applicant’s own statement, that she knowingly provided the false information. In its view, the inconsistent information contained in the documents from [Mrs E], [Mr F] and [Ms C] raises broad credibility concerns, namely that the applicant has given different accounts to these people and/or that they have inaccurately recorded the statements that she made to them.
Circumstances in which the applicant provided incorrect answers: The submission of applicant has pointed to multiple, sometimes overlapping factors that influenced the applicant’s conduct.
The main strands are:
§ Cultural context, including as a Muslim woman and a (claimed) victim of domestic violence
§ Limited English or literacy
§ Limited knowledge of prior travel and documentation
§ Mental health issues
§ Fear of persecution in Bangladesh
Cultural context, including as a Muslim woman and a (claimed) victim of domestic violence: The applicant claimed that cultural pressures and the trauma associated with domestic violence are highly relevant, both in assessing the circumstances in which she provided incorrect answers, as well as broader consideration of whether to cancel the visa.
§ The submissions and country information highlight the applicant’s position as a Muslim woman; the cultural expectation of their subservience to men; and the prevalence of violence against women in Bangladesh.[7]
§ The Tribunal’s task is to consider the circumstances that led the applicant to provide incorrect answers in the student visa application. Cultural background, including about the role of Bangladeshi Muslim women and the prevalence of domestic violence provide important context, but the Tribunal is also mindful that it should focus on the applicant’s particular circumstances, and avoid generalisations or stereotypes.
§ Much of the applicant’s evidence recounts her (alleged) mistreatment in both her first and second marriages which, it appears, is central to her ongoing protection visa application.
[7] The articles provide include: Tareque Bin Atique: Jagannath University Journal of Arts, Vol. 03: Violence against women in Bangladesh: An Islamic view, January-June 2013; Healthdirect Australia: Domestic violence and abusive relationships: Organization for World Peace: Violence Against Women in Bangladesh Reaches Breaking Point, December 10, 2020: Tazeen Mahnaz Murshid: Women, Islam and the State in Bangladesh – subordination and resistance; Human Rights Watch (HRW): October 2020: ‘I Sleep in My Own Deathbed’ – Violence against Women and Girls in Bangladesh: Barriers to Legal Recourse and Support,
At hearing, the applicant said that her parents are in Bangladesh, and her two siblings, her sister [Ms E] and a brother named [deleted] (spelling?) are in Australia. She said that she completed a Bachelor degree course in Comilla and, since arriving in Australia, has engaged in further education. She claimed that, after her return to Bangladesh in 2004, her abusive first husband assaulted and threatened her, and took her first passport. They separated. From about 2010 to 2012, she worked as [an Occupation 1] for [a] Company. In 2015, she joined [Employer 2] as [an Occupation 2].
In the Tribunal’s view, the applicant’s education and employment history suggest a degree of autonomy, which does not sit well with portrayal of the cultural expectations of her, as a Muslim woman, and her dependence on others. More generally, the Tribunal has some doubts about the claimed nexus between the applicant’s experiences in Bangladesh up to July 2019 (when she last arrived in Australia) and her state of mind when completing the student visa application form two months later.
Limited knowledge of prior travel and documentation (1999): The applicant described herself as ‘an illiterate, uneducated, a subordinate and slave to [her first] husband’; when she first came to Australia. She also did not know English. Her first husband obtained a passport for her in ‘his name’ (in other words, using his family name), and brought her to Australia. She claimed that she was not informed about her visa status or protection visa application; and that, when she enquired, she was subject to physical and sexual abuse. She also wrote that, after the couple returned to Bangladesh, her first husband destroyed this passport. She further wrote that, although she was known ‘in the community’ by the name [Identity 1], there is no legal documentation (other than the now-destroyed passport) to substantiate this.
The psychosocial report echoes this, stating that the applicant’s first husband made all decisions, and that she was not aware of the arrangements or documents that he made on her behalf. As a result of her first husband’s domestic violence – including physical, emotional and financial abuse – she endured ‘silence and obedience’.
The Tribunal takes the applicant to mean that while in Australia between 1999 and 2004, she was subject to her first husband’s control, had limited agency over or knowledge of her visa status, she was subject to domestic violence, and she did not have in her possession the passport issued in the name [Identity 1]. She suggests that these factors contributed to her decision in September 2019 to deny her previous name and her migration history.
The Tribunal accepts that victims of domestic violence (including coercive or controlling behaviours by perpetrators) may be unable to substantiate their claims, particularly those relating to past events. It notes that the applicant also claimed to have worked as [an Occupation 3] in a [Workplace] during her first stay. Also, Tribunal records show that she attended a hearing in June 1999, and indicated to the member that she had no protection claims of her own. These raise questions about the accuracy of the applicant’s claims regarding her circumstances during this period.
The applicant and her representative suggested that the incorrect answers in 2019 - her denial of her previous name and of her refused protection visa - were also an attempt to forget an unhappy chapter of her life and start afresh. The Tribunal accepts that the applicant expected her student visa application to attract extra scrutiny (and perhaps be denied) if she had answered truthfully the questions about her prior identity and her migration history. It is concerned that her real reason for giving the incorrect answer was simply to be granted the student visa, and not as a response to any part traumaIt does not accept at face value that it was related to any mental or emotional anguish of having to explain herself (and potentially talking about the former relationship).
Mental health issues: The applicant claimed that, on arriving in Australia in June 2019, she was ‘naïve, weak and emotionally and physically affected by the trauma arising from the persecution [she] faced in Bangladesh before [her] final departure from that country’. In such a condition, she claimed that she was reluctant to mention the name that her first husband had used to bring her to Australia in 1999.
The applicant – through her statement, her representative’s submission and [Ms C]’s psychosocial report (of the applicant’s circumstances as relayed to her) – claims that her mental state in mid-2019 followed her decision to flee persecution in Bangladesh. She provided a synopsis of the events that led up to this (which presumably have been set out in more detail in her protection visa application):
§ She married a [named person] (following the divorce from her first husband in 2016).
§ He decided that they would travel to Australia, and made all the arrangements (in a controlling fashion).
§ During a holiday visit to southern Bangladesh with her husband and his business partner, the police arrested and detained her, subjecting her to serious mistreatment and threats. Her father secured her release from detention.
§ She fled to Australia, without her fugitive husband, fearing that he might otherwise prevent her travel.
The applicant provided a copy of a medical referral dated 18 March 2022, psychosocial report ([Ms C]) dated 25 March 2022, and a prescription for the anti-depressant Sertraline, dated 15 June 2022. It appears that the immediate trigger for these was the NOICC issued on 14 March 2022, although [Ms C]’s report relates the applicant’s past experiences in Bangladesh and Australia by way of background.
As noted above, the applicant has not provided medical evidence specifically relating to the second half of 2019, to support any suggestion that mental health or emotional factors directly influenced her decision to state in the student visa application that she had no previous names and no previous visa refusals. According to her statements, after the student visa grant, she completed both a diploma and an advanced diploma course in [Subject], while improving her English, and was later offered a job as [an Occupation 4].
In sum, there is only weak and inconclusive evidence to indicate that the applicant may have suffered some mental health issues at the time of lodging her student visa application in September 2019. It does not indicate whether such any stress is related to specific past events in Bangladesh, or anxiety about having a student visa application (and hence a means to remain in Australia) approved.
The applicant also claimed that she provided incorrect answers about her previous name and visa refusal because she feared for her and her family’s safety. It is not apparent to the Tribunal how the applicant’s declaration, in an online application to the Australian authorities in September 2019, regarding her previous name and visa refusal, might cause her first husband (whom she divorced in 2016) to harm her or her family. The Tribunal is not satisfied that this is a genuine reason.
The applicant also alluded to her reliance on a migration agent, in part due to her (the applicant’s) lack of English. The Tribunal considers it unexceptional that the applicant had a migration agent complete the form, as an agent would be familiar with online processes and likely have better English. While there may be occasions when agents complete application forms in a cursory manner, the Tribunal is satisfied and finds that in this particular case, the applicant deliberately concealed information about her previous identity and refused visa application, and that it was not an oversight attributable to an agent. Furthermore, the Tribunal is not satisfied that the applicant’s English proficiency (or lack thereof) was a complicating factor. The applicant had already lived in Australia for five years, including a period of work in an English-speaking [Workplace]. In the student visa application and at hearing, she gave details of her tertiary education and subsequent employment as an [occupation 1] in a [company] in Bangladesh. And in her submissions, she wrote that she did attend and complete diploma and advanced diploma courses in Sydney, conducted in English.
The Tribunal accepts that there may have been personal, family and cultural reasons why the applicant was keen to obtain a student visa, and prolong her stay in Australia. There is strong evidence that the immediate reason for providing incorrect answers on her student visa application was in order to conceal information – namely, her use of a previous name, and the protection visa refusal in 1999 – that might jeopardise the grant of a visa. The Tribunal considers these actions were deliberate. It is not satisfied on the available material that there were significant mitigating circumstances.
It places a little weight on this in favour of cancelling the visa.
The present circumstances of the visa holder
The submission of 28 June 2023 states that the applicant suffers ‘from anxiety, depression, stress and Post Traumatic Stress Disorder (PTSD) as a result of the domestic violence she experienced during her marriage and persecution from the authorities in Bangladesh’. As noted above, the Tribunal accepts the expert opinions relating to the applicant’s mental health, as reported since March 2022, but it has significant reservations as to the triggers for these diagnoses, i.e. the proposed visa cancellations from March 2022, or (as claimed) the applicant’s experiences in Bangladesh.
The applicant claims that she is currently working as [an Occupation 4] in a [Workplace]. When asked whether her mental health issues affect her work, the applicant said that work keeps her busy and distracted.
The applicant’s sister [Ms E] wrote that the applicant lives with her, and briefly mentioned her good character. The applicant’s friend, [Mr F] also wrote of their close relationship. The applicant referred to having two siblings in Australia, but did not present them as witnesses or ask the Tribunal to take evidence from them.
The Tribunal places slight weight on this factor against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The non-compliance occurred in September 2019. In her response to the NOICC in June 2022, the applicant acknowledged that she had provided incorrect information in the student visa application, and corrected it. Section 105(1) requires that a non-citizen must ‘as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.’ While the applicant since corrected the information, the delay of doing so – almost three years – is relevant subsequent behaviour.
The Tribunal places a little weight on this factor in favouring of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Tribunal
There are no other known instances of the applicant’s non-compliance with ss.101-105. It is therefore an irrelevant factor.
The time that has elapsed since the non-compliance
The non-compliance set out in the s.107 notice occurred in September 2019, i.e. over four years ago.
During the review, the applicant and the representative focused on the circumstances that led to the provision of incorrect information in September 2019, and the fact that this occurred over four years ago.
The material before the Tribunal indicates that, since September 2018, the applicant has undertaken some studies in Australia, commenced work in a [Workplace] and, presumably established herself with family and friends here (although she provided little information relating to these factors).
Given the passage of time, the Tribunal places some weight on this factor against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known instances of the applicant breaching the law. As this is a minimum expectation of visa applicants and holders, the Tribunal places minimal weight against cancelling the visa.
Any contribution made by the holder to the community
The applicant referred to her employment as [an Occupation 4] at [Employer 3] in [Suburb]. A single pay advice dated 15 June 2022 shows that she worked in job classification [Classification][8]. She highlighted that this is an in-demand position that involves giving care to Australian [specified people].
[8] [Details of classification]
The applicant has given little evidence about this employment and her responsibilities. Given the Tribunal’s concerns about the applicant’s reliability as a witness, there are some residual questions as to whether the applicant has provided a complete and reliable account of her work responsibilities and contributions to the community.
Despite these misgivings, the Tribunal places some weight on this factor against cancelling the visa.
Other relevant circumstances
While the factors set in r.2.41 out 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 consequential cancellations under s.140.

There are no persons who would be affected by consequential cancellation.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations or family unity obligations.
In her response to the NOICC, the applicant wrote that the cancellation would lead to her return to Bangladesh, where she claims to fear persecution.
As noted in the delegate’s decision record, the applicant lodged a protection visa application on 1 November 2021. The applicant advised at hearing that this application is ongoing. The applicant will be permitted to remain in Australia until that application is finally determined. An assessment of Australia’s non-refoulement obligations will occur during that process.
The Tribunal concludes that the cancellation of the Bridging A visa would not lead to the applicant’s removal from Australia, let alone her removal in breach of any non-refoulement obligations.
The applicant has not identified any children whose interests would be affected by the cancellation, or her eventual removal from Australia.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
In the NOICC response dated 28 June 2022, the representative wrote: ‘If [Identity 2]’s Bridging visa A is cancelled, then she will become unlawful and be unable to work and contribute to [a critical industry] in Australia’. As the applicant has an ongoing protection visa application, she would not become unlawful, and would not be liable to detention and removal.
There was discussion of this, and other consequences of the visa cancellation, at hearing. It was also addressed in a post-hearing submission dated 26 September 2023 (albeit with reference to regulation 051.611A, which is not applicable to the applicant).
The applicant currently holds a Bridging E visa, issued in association with this review (i.e. application for review of the Bridging visa A cancellation). It has several conditions, none of which relates to work.
§ The applicant noted that if the Bridging visa A is cancelled, the Bridging visa E issued in association with this review application will cease within a specified period, and she require a further bridging visa (in association with her ongoing protection visa application, or any judicial review of this decision).
§ A Bridging visa E issued on the basis of the ongoing protection visa application will be subject to mandatory condition 8101 – No Work.
§ The applicant contended that, if this condition applies, she will face financial hardship, as she will have no income and be unable to purchase food, clothing or other basics. She states that her sister in Australia will be unable to provide financial support, due to her own medical conditions [and] that her brother refuses to have anything to do with her. [Ms E] provided a letter describing her family, health and financial situation although, in light of the unexplained discrepancies between her and the applicant’s previous statements, the Tribunal places little weight on this letter.
§ If the applicant were, following the Bridging A visa cancellation, granted a Bridging E visa without work rights on the basis of the ongoing protection visa application, she may seek a Bridging E visa under cl.050.212(8), as the holder of a Bridging E visa who has a compelling need to work. Relevantly, cl.050.212(8)(c) states that in the case of an applicant who was an applicant for protection visa, the reasons for the delay in making the application for a protection visa are acceptable to the Minister.[9]
- In the submission of 26 September 2023, the representative posits that, in light of her previous incorrect answers, the Minister would not find her reasons for the delay in seeking protection ‘acceptable’.
- As such, the applicant would be deprived of an income and the means of acquiring basic necessities, and she would be unable to continue working in a sector with critical labour shortages.
[9] Cl.050.212(8)(c)(ii) also refers to applicant in a class specified by the Minister by instrument in writing for this subparagraph, but there is no instrument at the time of this decision.
The Tribunal accepts that the visa cancellation would result in some added uncertainty for the applicant, and possible hardship if she is granted a Bridging E visa without work rights and/or while she is seeking work rights. It also accepts that there is some uncertainty as to whether she would be eligible for a Bridging E visa under cl.050.212(8)(c). Given the Tribunal’s adverse view of the applicant’s and her sister’s reliability, it does not accept at face value the degree of financial hardship they describe in their statements. However, it does accept that there could be some hardship for the applicant, and potential disruption to her employer if she no longer had permission to work.
The applicant did not make any submissions regarding other mandatory legal consequences of the visa cancellation.
§ As noted in the delegate’s decision record, s.48(1)(b)(ii) restricts applicants who have had their visas cancelled since their last entry into Australia from making a valid visa application, with a few exceptions (such as partner, protection and bridging visas). They would also be subject to Public Interest Criteria (PIC) 4013, which prevents the grant of a visa to persons affected by a risk factor for a period of three years from the date on which the applicant’s visa was cancelled.
§ However, in the present case, the applicant is already such to both s.48(1)(b)(ii) and PIC4013 as a result of the Bridging visa A cancellation of 9 May 2022. The only mandatory legal consequence of the current visa cancellation, dated 27 July 2022, is that it would extend the period in which PIC4013 applies by almost three months. There is no material to suggest this would have any material impact on the applicant.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal notes that the applicant’s Bridging A visa, granted on 24 August 2021 in association with the second student visa application, was cancelled, also on the basis of the incorrect information provided in the first student visa application of 26 September 2019. On one view, the cancellation of this Bridging A visa (associated with the protection visa application) on essentially the same grounds would appear punitive. However, it could also be argued that persons who have provided incorrect information (in particular, as a means of entry into Australia) should not be able to evade or nullify the consequences of their non-compliance by lodging successive visa applications. Overall, these considerations have a neutral impact in the Tribunal’s consideration.
The Tribunal accepts that the applicant may face some hardship or inconvenience as a result of the visa cancellation. However, given its concerns about her credibility, the selective nature of the evidence she has provided, and the reliability of her sister’s statements, it is difficult to make firm conclusions about the extent of any such hardship for her.
Summary
In considering whether the visa should be cancelled, the Tribunal has taken into account the totality of the applicant’s circumstances, and weighed the factors against and in favour of the visa cancellation. It has had regard to the applicant’s written and oral evidence, the submissions made on her behalf, supporting statements and her circumstances, together with the prescribed circumstances set out in reg. 2.41 and other relevant matters.
§ The Tribunal considers the applicant’s non-compliance to have been significant and deliberate. She provided detailed, sometimes overlapping claims as to the circumstances in which the non-compliance occurred, going back to her first visit to Australia. Given its broad concerns about the applicant’s credibility, her claims about the circumstances and their supposed nexus with the non-compliance in 2019, the Tribunal is not satisfied that they adequately explain the non-compliance, or diminish its significance. (The Tribunal reaches this conclusion without making findings of fact on claims relating to her experiences in Bangladesh, or other matters that may relate to her protection visa application.)
§ The Tribunal also takes into account the passage of time since the non-compliance (more than four years), evidence of family ties in Australia, her training in Australia and employment in the [sector], medical evidence of the impact on her mental health of this visa cancellation, and the likely financial impact of the visa cancellation.
The Tribunal has decided to place greater weight on the factors against cancellation, taken cumulatively, as these are marginally stronger than the factors in favour of cancellation.
After careful consideration of the prescribed circumstances and other relevant matters, the Tribunal concludes that the visa should not be cancelled.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.
James Silva
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.

[2024] AATA 755

25 January 2024

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