2302773 (Migration)

[2024] AATA 4292

2302773 (Migration) [2024] AATA 4292 (5 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nilesh Nandan

CASE NUMBER:  2302773

MEMBER:Gabrielle Cullen

DATE:5 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 05 September 2024 at 10:00am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incomplete and incorrect information and bogus document provided in visa application – document obtained by false or misleading statement – facial image comparison – previous passport, visa and travel under different name and date of birth, as secondary visa holder with wife – marriage ended with no notification to department, and applicant did not tell new partner previous information – application completed by partner and agent, with agent’s advice to change passport and date of birth – no opportunity for department to assess relationship and genuine temporary entrant – emotional reactions and mental health, stress and dishonour to self and family – separation and hardship while offshore application in progress, and restrictions on eligibility – partner’s recent new visa in different subclass – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(c), 48, 98, 99, 100, 101(a), (b), 103, 109(1), 107, 359A, 375A
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 500.312

CASE
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 378 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is a national of India. On 17 January 2021, his spouse [Ms A] ([DOB]) applied for a Student (Higher Education Sector) (Subclass 500) visa as the primary applicant and the applicant was included in the application as a member of her family unit. On 2 February 2021 he was granted the visa valid to 15 March 2023, together with the primary applicant. He arrived in Australia [in] December 2021.

3. On 9 Janaury 2023, the delegate sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC)[1] 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.

   [1] The applicant submits a copy of the NOICC to the Tribunal.

4. On 23 Janaury 2023, the applicant provided a response to the NOICC in the form of a statement and submission from his representative.

5. On 23 February 2023, the delegate cancelled the applicant’s Student visa under s 109 on the basis that he had not complied with s 101(a), s101(b) and s 103 of the Act.

6. On 28 February 2023, the applicant applied to the Tribunal for a review of that decision and attached the decision of the Department.

7. On 24 May 2024, the Tribunal invited him to appear before the Tribunal by video link on 15 August 2024 to give evidence and present arguments relating to the issues arising in his case.

8. Prior to the hearing the applicant provided a further statement and submission from his representative.

9. The applicant appeared before the Tribunal via video on 15 August 2024 to give evidence and present arguments. His representative attended the hearing. The applicant’s spouse, [Ms A], also gave evidence via telephone at the request of the Tribunal.

10. Following the hearing the applicant’s representative provided a further submission and evidence that the applicant’s spouse was granted a Subclass 485 visa on 14 August 2024 valid to 14 August 2027.

11. On 18 August 2024 the Tribunal sent the applicant a s 359A letter indicating a response was due by 2 September 2024. The applicant responded within time.

12. 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

13. The Tribunal advised the applicant at hearing that there are 375A certificates on the Department’s file which it considered are valid. It outlined the reasons given by the Department for the certificates. The applicant at hearing via his representative accepted the validity of the certificates.

14. The Tribunal outlined at hearing the gist of the information these certificates covered in general. It noted they were the Department priority caseload assessment forms which contained information most of which is outlined in the NOICC and Department decision as to the evidence relied on for the delegate to find the applicant had not complied with s 101 and s103. It also contained information as outlined in the Department decision as to the applicant’s previous visa record, his and his ex-spouse’s movements and visa records.

15. The Tribunal also raised the gist of the following information as covered by the Certificate in a post-hearing s.359A letter, as well as raising an inconsistency in evidence he gave at the hearing.

    There is information before the Tribunal which indicates that you married [Ms B] on [Date] and on 6 July 2015 applied for a Student visa as her dependent.

    [In] December 2015 [Ms B] departed Australia and [in] January 2016 you departed Australia, returning [in] February 2016. On 22 February 2016 [Ms B] advised the Department the relationship is over. She provided different reasons to you as to why the relationship ended. There is an allegation on file as to threatening behaviour to your ex-spouse. On 4 April 2016 the Department requested [Ms B] complete a change of circumstances form but no such record was received and her visa was subsequently cancelled as she was no longer enrolled in a course of study. You did not advise the department of the change in circumstances from February 2016.

    At hearing, in contrast you said you found out that that the marriage ended after you departed Australia [in] January 2017.

16. While there is an allegation on file as to the applicant’s behaviour and comments to his to ex-spouse after the break down of the marriage, the Tribunal places no weight on this information in exercising its discretion to cancel the visa. It views this information as bias, as it follows the breakdown of the marriage and is unable to be tested.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

17. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

18. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

    Did the notice comply with the requirements in s 107?

19. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Was there non-compliance as described in the s 107 notice?

20. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 and s 103.

21. The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 23 February 2023.

22. The information indicates that on 17 January 2021, his spouse [Ms A] ([DOB]) applied for a Student visa as the primary applicant and the applicant was included as a member of her family unit.

23. On 2 February 2021 he was assessed by the delegate as meeting all the relevant criteria as a dependent and a Student visa was granted valid to 15 March 2023. The primary applicant was similarly assessed as meeting the criteria for a Student visa.

24. In the NOICC dated 9 January 2023, the delegate set out the particulars of the possible non‑compliance with s 101(a), s 101(b) and s 103 on the basis of information and documents provided to the Department. It raised with the applicant that the Department reasonably suspects he has provided a bogus document within the meaning of s 5(1)(c) as the document was obtained because of a false or misleading statement.[2]

    [2] As recorded in the Department decision.

25. Specifically, the NOICC dated 9 January 2023, outlined the following, as noted in the Department decision.

26. On pages 4 and 5 of the “Application for a Student Visa” (Form 157A) lodged by the primary applicant, [Ms A], the following answers were provided under the heading of ‘Migrating member of the family unit’:

    Relationship to the primary applicant: Spouse/De Facto Partner
    Passport details
    Enter the following details as they appear in the family member's passport.
    Family name: [the applicant, single name]
    Given names: [the applicant, single name]
    Sex: Male
    Date of birth: [Date 1]
    Passport number: [Number 1]
    Country of passport: INDIA – IND
    Nationality of passport holder: INDIA – IND
    Date of issue: [2018]
    Date of expiry: [2028]
    Place of issue / issuing authority: CHANDIGARH

    Place of birth
    Town / City: PANIPAT
    State / Province: HARYANA
    Country of birth: INDIA
    […]
    Other names / spellings
    Is this family member currently, or have they ever been known by any other names? No
    Other passports

    Does this family member have other current passports? No

27. On page 6 of Form 157A no answer was provided to the following question:

    Does this applicant have an Australian visa grant number?

28. On page 9 of the Form 157A, the following answers were provided under the heading of “Other family members’:

    Relationship to the primary applicant: Mother/Father-in-law
    Family member details
    Family name: [Mr C]
    Given names: [Mr C]
    Sex: Male
    Date of birth: [Date 3]
    Usual country of residence: INDIA

    Relationship to the primary applicant: Mother/Father-in-law
    Family member details
    Family name: [Ms D]
    Given names: [Ms D]
    Sex: Female
    Date of birth: [Date]
    Usual country of residence: INDIA

29. On page 13 of the Form 157A, the following answers were provided:

    Countries visited

    Have any of the applicants visited any countries in the past 10 years? Include:
    • Work or study outside your usual country of residence
    • Holiday/leisure trips
    • Business
    • Military deployment
    • Visits back to your usual country of residence if living away
    No

    Visa history
    Has the applicant, or any person included in this application, held or currently hold a visa to Australia or any other country? No

30. In support of the Student visa application a scan of the applicant’s Indian passport (document number [1]) was provided. The details of this passport were also provided on page 4 of the Form 157A as detailed above.

31. A copy of one of the pages of the applicant’s passport submits with the application records the following additional biographical information:

    Name of Father / Legal Guardian: [Mr C]
    Name of Mother: [Ms D]
    Address: [Address], KARNAL, [PIN], HARYANA, INDIA

32. This passport also included a section labelled “Old Passport no. with Date and Place of Issue” but this section was blank, indicating that the applicant had not held a previous passport.

33. In support of the dependent Student visa application, also provided was a certified copy of the applicant’s ‘Certificate of Registration of Marriage’ in India, dated 03 May 2018, which includes the following information referring to the applicant:

    Sri: [the applicant]
    S/O: [Mr C], and [Mrs D]
    Residing at: [Address], KARNAL RURAL, [PART], HARYANA-[PIN]

34. The NOICC as recorded in the Department decision notes that the following subsequent information was received.

    ·On 03 February 2022, a delegate from the Licence Integrity and Security Safety, Environment and Regulation section of the Department of Transport for NSW, advised the Department of Home Affairs that the NSW Roads and Maritime Services (RMS) facial imagining software, had matched the applicant’s facial image to the facial image of another entity, [Alias – Given name (same as the applicant), Surname] ([DOB 2]), from their database.

    ·On 10 February 2022, the Complex Identity Advice section referred the facial images of the identities of [the applicant] ([DOB 1]) and [Alias] ([DOB 2]) to the Department of Home Affairs’ Facial Image Examination Unit.

    ·On 24 February 2022, the Forensic Facial Image Examiner made the following finding:

    The facial images have been compared and I am of the opinion that they represent the same person.

35. The delegate raised as of concern in the NOICC as outlined in the Department decision from the above that that it considered the applicant may also be known as [Alias] ([DOB 2]).

36. It also outlined the following previous Immigration history of [Alias] ([DOB 2])

    ·On 07 June 2013, as [Alias] ([DOB 2]), the applicant applied for a Student (Higher Education Sector) (subclass 573) visa while in India. He was granted the Student visa on 16 July 2013 and first arrived in Australia as the holder of the visa on 08 August 2013.

    ·On 28 February 2014, as [Alias] ([DOB 2]), the applicant applied for a Student (Vocational Education Sector) (subclass 572) visa while in Australia. In support of the application also provided was a copy of his father’s passport bio-data pages which included (in part) the following biographical information:

    Passport number: [2]

    Given Names: [Mr C]

    Nationality: INDIAN

    Date of birth: [Date 4]

    Name of Spouse: [Ms D]

    ·On 12 May 2014, as [Alias] ([DOB 2]), the applicant was granted the Student (Vocational Education Sector) (subclass 572) visa.

    ·On 14 May 2015, as [Alias] ([DOB 2]), the applicant married [Ms B] ([DOB]). [Ms B] had been granted a Student (Higher Education Sector) (subclass 573) visa on 10 September 2014.

    ·On 06 July 2015, as [Alias] ([DOB 2]), the applicant lodged a subsequent entrant application for a Student visa as [Ms B]’s spouse and as a member of her family unit. On pages 14 - 15 of the “Application for a Student Visa” (Form 157A) the applicant provided the following answers under the heading of ‘Family unit member details’:

    Question 50,
    Your full name in English
    Family name: [Alias surname]
    Given names: [Name]

    Question 53,
    Sex: Male

    Question 54,

    Date of birth: [1]
    Question 56,
    Town/city: KARNAL, HARYANA
    Country: INDIA

    Question 61,
    Do you have a passport? Yes.
    Details from your passport
    Passport number: [3]
    Country of passport: INDIA
    Date of issue: [2013]
    Date of expiry: [2023]

    Issuing authority/Place of issue as shown in your passport: CHANDIGARH

    • On page 18 of the Form 157A, the applicant provided the following answers under the heading of ‘Previous visa applications’:

    Question 80
    Have you or any other person included in this application previously applied for any type of Australian visa? Yes
    Do you currently hold a visa? Yes
    If you answered ‘Yes’ to any of the above questions, give details below.
    Name: [Alias]
    Type of visa: STUDENT VISA TU/572
    Application: Granted
    Date of issue: 12 May 2014
    Question 81
    Have you, or any other person included in this application, ever travelled outside your country of citizenship? Yes
    Give details of the 8 most recent countries travelled to:
    Name: [Alias]
    Country: Australia
    Date from: 06 August 2013 to: CURRENT

    • In support of the Student visa application, as [Alias] ([DOB 2]), the applicant provided a certified copy of his Indian passport (document number [3]). A copy of one of the pages of the passport recorded the following additional biographical information:

    Name of Father / Legal Guardian: [Mr C]
    Name of Mother: [Ms D]
    Address: [Address], KARNAL [PIN], HARYANA, INDIA
    In support of your Student visa application, you also provided a certified copy of your Marriage Certificate to [Ms B], dated [Date], which includes the following bridegroom details (referring to you as the bridegroom):
    Father’s name: [Mr C]

    Mother’s Name at Birth: [Ms D]

    • The Student visa was granted to the applicant as [Alias] ([DOB 2]) on 17 July 2015. The applicant departed Australia as the holder of the Student visa on 17 January 2017. The Student visa ceased to be in effect on 30 March 2017.

37. Based upon the above information, the delegate found that [Alias] ([DOB 2]) and the applicant are the same person. The delegate also noted that the Indian passports of both [Alias] ([DOB 2]) (document number [3]) and the applicant in the recent application (document number [1]) both provide the same information in relation to

    • ‘Name of Father / Legal Guardian: [Mr C], Name of Mother: [Ms D]

    , Address: [Address], KARNAL, [PIN], HARYANA,

    INDIA.’

    • The marriage certificates of both [Alias] ([DOB 2]) and the applicant both list [Mr C] and [Ms D] as the parents of the bridegroom and these parents have the same address in both marriage certificates.
    • [Mr C] and [Mr D] are listed in the current Student visa application as the father-in-law and the mother-in-law of his spouse, [Ms A]. His father’s date of birth was also provided as [Date 3] in the application. This matches the date of birth on the Indian passport of [Mr C] (document number [2]) that the applicant as [Alias] ([DOB 2]) provided in support of the application for a Student (Vocational Education Sector) (subclass 572 visa) lodged on 28 February 2014.
    • [Alias] ([DOB 2]) provided his place of birth as Karnal, Haryana, India while the applicant in the recent application provided his place of birth as Panipat, Haryana, India. The delegate noted that information indicates that Haryana is an Indian state in the northern part of the country and for administrative purposes, Haryana is divided into 6 revenue divisions which are further divided into 22 districts. ‘Panipat’ district was carved out from the erstwhile ‘Karnal’ district on 1 November 1989. On 24 July 1991, Panipat was again merged with ‘Karnal’ district. On 1 January 1992, it again became a separate district. Based on this information it appears that the applicant and [Alias] ([DOB 2]) have the same place/district of birth which has been known as either Karnal/Panipat. It appears that the applicant answered his place of birth as ‘Panipat’ in his Student (subclass 500) visa application to try to further obscure that he was previously known as [Alias] ([DOB 2]) born in Karnal, Haryana, India.

38. In the NOICC the delegate noted that the above information indicates that the applicant was previously in Australia under the identity of [Alias] ([DOB 2]) and he was granted the following visas under this identity:

    • Student (Higher Education Sector) (subclass 573) visa granted on 16 July 2013 (Visa grant number: 1060111926889).
    • Student (Vocational Education Sector) (subclass 572) visa granted on 12 May 2014 (Visa grant number: 8269558397135).
    • Student (Higher Education Sector) (subclass 573) visa granted on 17 July 2015 (Visa grant number: 1859500059396).
    • The applicant departed Australia under the identity of [Alias] ([DOB 2]) [in] January 2017 and re-entered Australia as [the applicant] ([DOB 1]) [in] December 2021.

39. Based on the information the delegate considered that the Indian passport (document number [1]) he provided purporting to support his claimed identity as [the applicant] ([DOB 1]), does not accurately reflect that he held an Indian passport (document [3]) under the identity of [Alias] ([DOB 2]). The delegate considered this later passport was obtained because of a false or misleading statement as defined by s5(1)(c) of the Act.

1. The delegate also considered the applicant had not complied with s 101(a) as on page 6 of the Form 157A to the question ‘Does this applicant have an Australian visa?” he did not provide an answer. The delegate was of the view this question should have been answered as the applicant had previously been granted an Australian visa, with associated visa grant numbers, under the identity of [Alias] ([DOB 2]).

2. The delegate considered the applicant had not complied with s101(b) because he had provided incorrect answers to the following questions in the Form 157A lodged on 17 January 2021:

   • On page 5 of the Form 157A, to the question, ‘Is this family member currently, or have they ever been known by any other names?’, the applicant answered ‘No’. The delegate considered this answer to be incorrect because the applicant had previously been known as [Alias] ([DOB 2]).
   • On page 5 of the Form 157A, to the question, ‘Does this family member have other current passports?’, the applicant answered ‘No’. The delegate considered this answer to be incorrect because, at the time the applicant answered this question, the Indian passport (document number [3]) he held under the identity of [Alias] ([DOB 2]) had an expiry date of [2023] and was still valid. The fact the applicant’s new Indian passport (document number [1]) under the identity of [the applicant] ([DOB 1]) does not make any reference to his previous passport under the identity of [Alias] ([DOB 2]) further indicates that the applicant’s previous passport had not been invalidated by the issuance of the new passport.
   • On pages 13 of the Form 157A, to the question ‘Have any of the applicants visited any countries in the past 10 years?’, the applicant answered ‘No’. The delegate considered this answer to be incorrect because movement records show that, as [Alias] ([DOB 2]), he was in Australia from [August] 2013 to [January] 2015, [March] 2015 to [January] 2016 and [February] 2016 to [January] 2017.
   • On pages 13 of the Form 157A, to the question ‘Has the applicant, or any person included in this application, held or currently hold a visa to Australia or any other country?’, the applicant answered ‘No’. The delegate considered this answer to be incorrect because at the time the applicant answered this question, he previously held visas to Australia (as detailed above).

3. The delegate considered the applicant had not complied with s103 as in support of his Student visa application lodged on 17 January 2021, he provided his Indian passport (document number [1]) under the identity of [the applicant] ([DOB 1]). A copy of one of the pages of the passport also included a section labelled “Old Passport no. with Date and Place of Issue,” however this section was blank, indicating that he had not held a previous passport, namely Indian passport (document number [3]) as [Alias] ([DOB 2]). The delegate considered that he likely obtained the Indian passport (document number [1]) in an attempt to conceal his previous passport and identity as [Alias] ([DOB 2]). The delegate considered that this document is a bogus document because it was obtained because of a false or misleading statement, as defined by s5(1)(c) of the Act.

4. The delegate noted that as the Indian passport (document number [1]) was provided in association with the applicant’s Student visa application, it appears he has not complied with s103 of the Act.

5. In response to the NOICC the applicant in a statement accepted he had not complied with s 101 in the manner outlined by the Department but gave reasons as to why it was unintentional. He provided reasons for the non-compliance which are considered below. The representative submits that the applicant’s passport is not a bogus document and did not accept that the applicant had not complied with s 103 in the manner outlined in the NOICC.

6. The delegate considered that the applicant had had not complied with s 101(a), s 101(b) and s103 in the manner outlined in the NOICC And outlined above. The delegate noted the applicant accepted he had not complied with s 101 (a) and s 101 (b). The delegate noted that even if his spouse completed the visa application, by s 98 the applicant had caused the application to be filled in.

7. The delegate considered the applicant’s claim that his new passport (document number [1] issued under the identity [the applicant] ([DOB 1]) is not a bogus document. The delegate noted that the passport had been issued in respect of the applicant and is not counterfeit but considered that it is a bogus document, as defined by s5(1)(c) as it was obtained because of misleading statements knowingly made by the Visa holder. The delegate referred to a page of the passport which referred to the “Old Passport no. with Date and Place of Issue” being left blank indicating that the applicant had not provided the details of his previous passport[3] to the passport issuing authority. The delegate noted that the previous passport was still valid at the time the new passport was issued and there is no information that the previous passport was cancelled either before or after the issuance of the new passport. The delegate was of the view that whether or not the applicant was asked by the issuing authority about the previous passport they held, his failure to notify the issuing authority of the previous passport was misleading, either by omission or commission and resulted in him being issued an Indian passport which contained incorrect information. The delegate therefore found he had not complied with section 103.

   [3] Namely the Indian passport with document number [3] under the name of [Alias] ([DOB 2])

8. The delegate found that his Student visa was therefore liable to be considered for cancellation under s 109 of the Act.

9. In the pre-hearing submissions received 5 June 2024 and 9 July 2024, the applicant’s representative noted that as there was a discrepancy between the date of births in the new passport and previous passport and applications, the previous submission that the new passport is not a bogus document is withdrawn.

10. The applicant contended at hearing that he went to an agent who advised him to change his passport and date of birth, as his chances were slim to gain a visa. He said at hearing the agent then filled out the form together with his spouse. Whether he knew or did not know of the provision of the incorrect information is not relevant because 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. Further, s.100 provides that 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.

11. Notwithstanding his claim of the involvement of the agent and his spouse in filling in the application, he accepted he knew of the provision of the incorrect answers and not answering a question. At hearing the applicant and his representative confirmed that they accepted the applicant had not complied with s 101(a), s101(b) in the manner outlined in the NOICC, in the manner outlined above.

12. With regard to the Indian passport (document number [1]) under the identity of [the applicant] ([DOB 1]), the subject of the s.107 notice, the applicant advised he knowingly provided this document, albeit at his agent’s suggestion. He said his spouse did not know. Both the applicant and his representative accepted the applicant had not complied with s103 in the manner outlined in the s 107 notice at hearing as the passport is a bogus document. The Tribunal therefore finds the passport in the name of [the applicant] ([DOB 1]), with number [1] is a bogus document within the meaning of s 5(1)(c) as it was obtained because of a false or misleading statement. The Tribunal is of the view the applicant has caused a bogus document to be given. It follows that the Tribunal finds there has been non-compliance by the applicant with s103 of the Act in the way described in the notice given to the applicant under s 107 of the Act.

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

    Should the visa be cancelled?

14. 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).

15. In exercising this power, the Tribunal must consider the applicant’s response to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. The Tribunal has considered each of the circumstances below.

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

    Submissions

17. In response to the NOICC, in a pre-hearing submission and in evidence to the Tribunal the applicant and his representative have made a number of submissions as to why the Tribunal should exercise its discretion not to cancel the visa.

18. The applicant in his statement to the Department accepted that he arrived in Australia [in] August 2013 and applied for a subsequent Student Visa which was granted. He claims he then married [Ms B] ([DOB]) and applied for Student Visa on 6 July 2015 as her dependent. He was granted the Student visa on 17 July 2015. He claims the relationship with [Ms B] irretrievably broke down and they are now divorced, and he is currently married to [Ms A].

19. He claims sometime after he married his first spouse, now his ex-spouse, she returned to India and did not come back. He claims he then returned to India but found out that his ex-spouse had left him and had married another person. He claims he was devastated and was emotionally very weak. He claims the betrayal he faced emotionally and mentally weakened him and he could not cope with this incident and its impact. He claimed that he and his family were subjected to a lot of shame and humiliation by his friends, family and society members as India is a patriarchal country and a man who has been left by his spouse is not deemed as masculine or man enough by the society. He claims the impact of the betrayal together with the humiliation he and his family members faced worsened his mental health condition and he suffered depression. He claims he felt guilty for the trust he had placed in someone who betrayed him and also for the treatment both he and his family had to endure because of his ex-spouse leaving him, even though there was nothing wrong with his masculinity or manliness. He also claims it impacted his career and future. He claims he did not feel like staying in India because of the degrading treatment he had to face for no reason, so he planned to return to Australia as this was the country he considers home as he had stayed almost a decade of his life outside India.

20. He claims due to the treatment and dishonour faced by both himself and his family he wanted to leave India for Australia. For his visa application he consulted some migration agents in India who told him that his chances of visa approval were slim and one of the agents suggested he apply for another passport. He decided to go with the suggestion, and he applied for a different passport. He regrets the irresponsible decision he has made.

21. To his current spouse he accepts he did not disclose his previous relationship and his past. He thought it would be better to apply for a visa using a new passport detail. He was also fearful that a refusal decision of his Student visa lodged on 17 January 2021 as a dependent of his spouse would disclose his past to her.

22. He regrets he chose to apply for the visa this way rather than providing true and correct information to the Department and disclosing everything to his spouse who has always supported him. He claims he was scared and was not in the right frame of mind due to the mental health conditions and the mistreatment he faced from his society. He claims he also feared losing his spouse and he acted impulsively to hide his past from her.

23. He claims except for the passport information provided as part of his visa application he has always provided true and correct information to the Department and has never intended to mislead the Department or circumvent its process. He apologises for the inconvenience he has caused and requests the Department consider the compelling circumstances.

24. In a submission dated 23 January 2023 in response to the NOICC his representative submits that the applicant does not and has never had the intention of purposely misleading or withholding information from the Department, that this is a one-off incident and other than this the applicant has always complied with the Student visa conditions. He submits that the applicant is under a high level of stress currently because of the possible cancellation of the Visa and it is playing a huge toll on his mental health and that the level of stress is similar to that of the depressing time he suffered in India. He submits that the applicant is concerned that should the visa be cancelled, this will have a negative impact on his marriage and in turn his mental health and well-being, as he will be forced to leave Australia. He claims the applicant is concerned his marriage will end and he could be expected to face even more ridicule and mockery from his community. He submits that the amount of stress, anxiety and depression the applicant would face would be detrimental to his overall mental and physical health as he will suffer humiliation at the hands of his family and community if he returns.

25. He submits that they are instructed that a decision to cancel the visa would place significant mental, emotional, financial burdens on the applicant and his family. He submits that it will also be detrimental to the well-being and development of his marriage with his new spouse and the growth of his family. He submits that the decision to cancel the visa will place a heavy burden on the applicant by forcing him to exit Australia and this will reduce his earning capability, job prospects and quality of life. He submits on a psychological level this will impact his poor mental health. He repeats that he is instructed that the wrongdoing was unintentional and rooted in pride and as the applicant did not fully understand the processes.

26. In a submission dated 4 June 2024 his representative notes that as a discrepancy exists between the date of birth in the new passport and previous applications, the submission that the new passport is not a bogus document is withdrawn. He submits that if the cancellation decision is not set aside the applicant and his spouse will face extremely harsh consequences, including a three-year ban under PIC 4020, despite his spouse’s innocence. He submits that after a difficult divorce the applicant sought a fresh start and believed changing his name would help. He submits the applicant’s aim is to protect his new marriage and avoid any negative impact on his relationship. He submits that the applicant is now aware of the legal requirements and has declared all names in his bridging Visa E application.

27. At hearing the applicant repeated much of the evidence above when the Tribunal discussed the below discretionary criteria. His representative noted there was no benefit in the applicant not applying in the correct name and declaring his former history, as he was coming to Australia as a dependent. He was of the view he could well have been granted a visa if the genuine information and document had been provided. The applicant and representative said he did not disclose the information not because he wanted to deceive the Department but as he did not want his spouse to know he had been previously married. His representative referred to the difficulties in India gaining a further marriage after the first one had ended in divorce.

28. The applicant said in 2018 his parents arranged a marriage with his current spouse who is from Delhi, and she then came and lived with his family for 2 to 3 years. The Tribunal questioned why she would not have known of his former spouse when living at his home. He said his parents did not talk about it.

29. The Tribunal asked questions about his current spouse. The applicant said she was granted a subclass 485 visa the day before, which the Tribunal later confirmed as correct. He said she completed a Bachelor of [Subject 1] in India and initially came to Australia to study a Master of [Subject 2] and then changed to a Master of [Subject 1], which she has finished. This was confirmed via his spouse’s PRISMS record. He said she has enrolled in a further course, an Advanced Diploma of [Subject 3], works in [work sector] in [Suburb], naming the [workplace]. He noted their former address and that they have recently moved to a new address.

30. The applicant’s spouse, [Ms A] was interviewed by telephone at the request of the Tribunal. She confirmed the information provided by the applicant, and that she is enrolled in a Graduate Diploma in [Subject 3]. She gave the same reasons as to why the applicant did not disclose his past marriage and travel to Australia. It asked her about the hardship she would face if the visa was cancelled. She said the relationship would continue and she has accepted his mistake.

31. The Tribunal discussed with the applicant the discretionary criteria, and his evidence, where relevant, is outlined below.

32. Follow the hearing the applicant’s representative in a submission received after the hearing notes that as the applicant’s spouse had been granted a Subclass 485 Visa, she would likely remain living and working in Australia for a period of potentially more than five years, considering any Bridging visa associated with the subsequent permanent resident application. He submits that it would be an extremely harsh and unconscionable outcome to have the parties separated for an extended period.

33. Additionally, he submits that any future application, outside of the PIC 4020 exclusion period, could well be refused given that it would be an offshore application made by a person with a profile that includes having provided a bogus document in relation to his identity in the first instance. He submits this would necessitate an appeal by the spouse if one were possible or further offshore applications. He submits the review applicant would likely need to remain offshore until a visa was granted which potentially could take no less than six or seven years. He submits that this delay in granting a visa would preclude the applicant from entering Australia during that entire period, causing substantial and prolonged hardship to the couple.

34. He submits that the review applicant is remorseful as to providing the bogus document but in all other aspects has been credible, open and honest with the Tribunal. He submits that the testimony of the applicant’s spouse was similarly credible and that her evidence should be given weight.

35. In the s 359A reply the applicant submits a further statement dated 29 August 2024. He outlines how he met his former spouse, [Ms B], in Australia, they were married and at first their life together was normal. In late 2015 she went to India to see her family and he joined her a month later [in] January 2016. He notes that after three weeks he returned to Australia [in] February 2016, but she stayed in India, citing family problems and her mother’s illness. However, she never returned to Australia and over time she stopped answering his calls, changed her phone number and blocked him on social media. He claims he kept waiting for her thinking she was still dealing with issues at home in India and when he returned in 2017, he found out that she had married another man. He claims this was very difficult for him as he had not filed for divorce and was still hoping their relationship could be saved. He claims he did not know she had reported him to the Department that their relationship had ended or that she claimed he had threatened her. He claims they had small arguments like any other couple, but he never threatened her and was never violent with her. He claims if she felt unsafe, he believes she would have called the police but that never happened. He claims he believes his ex-spouse falsely claimed he threatened her simply because the Department needed a reason for their relationship ending and she needed something to tell them. He claims they never filed for divorce, and he knew they would need to obtain a divorce in Australia since they were married in Australia. He repeats that she went on to marry someone else in India without mentioning to them that she was already married in Australia. He claims she left him for two reasons, firstly because he was not wealthy, and her new husband is and secondly because he never met her parents leading him to think she never told them about the marriage.

    The correct information

1. The correct information would have advised the Department that the applicant had previously been known by the name [Alias] ([DOB 2]), that he continued to hold a passport in this name at the time of application and entered Australia previously on Student visas under this name in the previous 10 years. While the applicant did not complete the application, he has accepted he provided the incorrect information to his spouse and the agent who completed the application,

2. Therefore, the correct information in the application form would have been as follows.

   • On page 5 of the Form 157A, to the question, ‘Is this family member currently, or have they ever been known by any other names?’, the applicant would have answered ‘yes’.
   • On page 5 of the Form 157A, to the question, ‘Does this family member have other current passports?’, the applicant would have answered ‘yes’.
   • On pages 13 of the Form 157A, to the question ‘Have any of the applicants visited any countries in the past 10 years?’, the applicant would have answered ‘yes’.
   • On pages 13 of the Form 157A, to the question ‘Has the applicant, or any person included in this application, held or currently hold a visa to Australia or any other country?’, the applicant would have answered “yes”.

   It would have alerted the Department that the applicant was [Alias] ([DOB 2]) and had previously entered Australia on the Student visas as outlined above and also held a Student visa as a dependent of [Ms B].

3. One of the secondary criteria for the grant of the Subclass 500 (Student) visa for a member of the family unit is that an applicant meets cl 500.312, the genuine temporary entrant criteria, of which their immigration history, including past travel to Australia as well as their past study history is relevant. That the applicant had been in Australia before under the name [Alias] ([DOB 2]), entered Australia previously on student visas under this name in the previous 10 years, and held  Student visas as a primary and dependent applicant would have been relevant evidence to the determination as to whether he met the genuine temporary entrant criterion under cl 500.312 of Schedule 2 to the Regulations, and ultimately the grant of the Student visa. Also, relevant would have been that no divorce documents have been submitted regarding his marriage to [Ms B][4]. The Tribunal therefore considers that the Department was denied the opportunity to assess these factors when determining the applicant met cl 500.312 and the dependent Student visa criteria.

   [4] The applicant advised that they have not divorce din his reply to the s359A letter.

4. The applicant’s representative was of the view even if he had provided his true passport, the visa would have been granted. The integrity of the migration program relies on, amongst other things, applicants providing correct information in visa application forms and in their dealings with the relevant agencies including the Department. Sections 98 to 100 reflect the seriousness of the provision of the incorrect information.

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

   The content of the genuine document (if any)

6. The applicant accepts that the genuine passport would have shown the applicant as [Alias] ([DOB 2]) and that he previously held a passport in that name. This would have alerted the Department that he had previously visited Australia, and his past immigration record. While the applicant did not submit the application, he has accepted he obtained and provided his spouse and agent who completed the application, the bogus passport.

7. Similar to the above, one of the secondary criteria for the grant of the Subclass 500 (Student) visa for a member of the family unit is that an applicant meets cl 500.312, the genuine temporary entrant criteria, of which their immigration history, is relevant. The Tribunal therefore considers that the Department was denied the opportunity to assess the applicant’s true identity when determining the applicant met cl 500.312 without the genuine document, being his current passport [Alias] ([DOB 2]) being provided. The applicant’s representative was of the view even if he had provided his true passport, the visa would have been granted.

8. The integrity of the migration program relies on, amongst other things, applicants providing genuine documents.

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

   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

10. One of the secondary criteria for the grant of the Subclass 500 (Student) visa for a member of the family unit is that an applicant meets cl 500.312, the genuine temporary entrant criteria, of which their immigration history, including past travel to Australia as well as their past study history is relevant. That the applicant was previously granted a Student visa as a dependent of [Ms B] would also have been relevant. Ministerial Direction No. 69 refers to a number of factors to be considered when assessing the genuine temporary entrant criteria, including an applicant’s past immigration and visa history. The delegate was unable to assess the applicant’s true identity, past immigration history, past travel to and from Australia, past study history, past relationship history and that he did not advise the Department about the breakdown of his marriage to [Ms B]. Also, relevant would have been that no divorce documents have been submitted regarding his marriage to [Ms B][5]. The Tribunal therefore considers that the Department was denied the opportunity to assess these factors when determining the applicant met cl 500.312 and the dependent Student visa criteria.

    [5] The applicant advised that they have not divorce din his reply to the s359A letter.

11. The applicant’s representative was of the view even if he had provided his true passport and the correct information, the visa would have been granted nonetheless as he is in a genuine relationship with the primary applicant.

12. Of concern, to the Tribunal is the Department was of the view he had not advised them of his change in circumstances, particularly the breakdown of the marriage after he re-entered Australia in February 2016. This may have impacted on their decision that he met cl.500.312. The Tribunal therefore considers that the decision to grant the visa was based, in part, on the incorrect information and a bogus document.

13. 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

14. The applicant claims that the non-compliance occurred due to the shame and dishonour he faced as a result of his former spouse leaving him. He refers to the mental health effects and depression both he and his family faced. He claims he did not want to stay in India due to the mistreatment and dishonour he and his family were subjected to due to the failure of his marriage. He also advised that he had not told his present spouse, [Ms A], that he had been previously married and he feared if he disclosed this information his marriage would fail. He claims he acted to preserve his current marriage and not to deceive the Department.

15. He was also fearful if he disclosed the information his visa would be refused and his spouse would find out. He claims he acted impulsively to hide his past from her.

16. He claims he was scared and was not in the right frame of mind due to the mental health conditions and the mistreatment he faced from his society. He claims he also feared losing his spouse and acted impulsively to hide his past from her. He claims this is the main reason he decided to use a different passport to lodge his Student visa on 17 January 2021 as her dependent.

17. He claims he was paralysed with what to do so he consulted some migration agents in India and they told him that his chance of visa approval for Australia was slim and one of the agents suggested he apply for another passport. He decided to go with the suggestion and he applied for a different passport. He regrets the irresponsible decision he has made.

18. At hearing he said the motivation was not to deceive the Department but that he did not want his wife to know he was previously married.

19. At hearing the Tribunal asked whether he ever consulted a medical professional or anyone for the mental health issues and he said he did not. He referred to consulting a dermatologist but that was for some skin issues.

20. The evidence at hearing is that his current spouse was from Delhi and after the marriage she moved i to live with him in the family home for 2 to 3 years. The Tribunal questioned how she would not have known of the previous marriage, and he said he and his parents did not talk about it. It accepts from her evidence that she did not know he had been married before.

21. While the Tribunal accepts that he did not want his spouse to know of his previous marriage, it notes the circumstances that led to the provision of the incorrect information and bogus document were not out of his control. It notes that while he faced mental difficulties at the time his first marriage ended of mental stress, depression, shame and dishonour, he applied for the visa 3 to 4 years later when he has been married for 2 to 3 years. There is no medical evidence that his mental state was such that he was unable to understand what he was doing when he provided the incorrect information and bogus documents to the Department.

22. The Tribunal does not accept that these circumstances satisfactorily explains or justifies the serious matter of the applicant intentionally obtaining a bogus passport and providing the Department with incorrect information to better secure a migration outcome.

23. The Tribunal gives this consideration weight in favour of exercising its discretion to cancel the visa.

    The present circumstances of the visa holder

24. The applicant is currently unemployed having previously lost his job. While he refers to the financial burden of having to return to India as he is not currently employed in Australia, the Tribunal does not place much weight on this. It does however accept if the visa is cancelled the applicant and his spouse would live separately and have to provide for two separate homes and that this would be more expensive and financially affect them.

25. At hearing he referred to the shame he and is family will again face if he returns home and his concern that his marriage would fail. However, the Tribunal notes the applicant’s current spouse has indicated they would remain married, although the applicant was worried about this. As the applicant would remain married to his spouse, and many couples are separated the Tribunal does not accept the applicant would face shame due to the separation from his spouse.

100.   The Tribunal accepts that the applicant is currently married to [Ms A] and has been since 2018, and that on 14 August 2024 she was granted a subclass 485 visa for 3 years and hopes to then apply for a permanent visa. It accepts from their consistent information that they are living together and he is supporting her. It has given her the benefit of the doubt and accepts she did not know the applicant previously travelled to Australia, under a different identity on student visas and had been previously married.

101.    It accepts that if his visa is cancelled; he will depart Australia, but his spouse will remain in Australia on the subclass 485, continuing to study the Graduate Diploma course, as well as work at the [workplace] until August 2027. It accepts she may apply for a further visa. Once offshore, there are no restrictions on the applicant applying for a visa, however under public interest criterion (PIC) 4013 he may not be granted a further visa for three years from the date of cancellation unless he meets PIC 4013(1)(b), which may be difficult. Of note PIC 4013 is not a criterion for a subclass 485 visa or Subclass 309 visa.

102.    The representative refers to impact of PIC 4020 however; the 12 months period has passed since he last held the visa (PIC 4020(1); and with regard to PIC 4020(2) he has not been refused a visa, rather it has been cancelled. Notwithstanding, it accepts therefore that the cancellation may result in the separation from his wife at a minimum until February 2026, as he most likely would be unable to satisfy the criteria in PIC 4013 prior to February 2026 as it is likely his wife will remain on a temporary visa, although PIC 4013 is not a criterion for the subclass 485 visa. The applicant’s representative refers to the period being at least 5 or 6 years as she will then apply for permanent residence. The Tribunal however accepts the evidence as outlined above that this separation would be lengthy, very difficult emotionally, financially and mentally for the applicant. It accepts they could meet outside Australia and she could return to India for some periods. It has considered below the hardship for the applicant’s spouse.

103.   The Tribunal gives this consideration significant weight in favour of exercising its discretion not to cancel 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

104.   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

105.   The applicant contends he has always complied with his visa conditions, except for the instances outlined in the S.107 Notice

106.   There is evidence before the Tribunal as noted in the Department decision raised with the applicant at hearing and in the subsequent s 359A letter, that the applicant’s former spouse departed Australia in December 2015 prior to the applicant departing on 12 January 2016. The evidence indicates that the applicant returned to Australia and on 22 February 2016 his ex-spouse advised the Department the relationship was over. Of concern is that the applicant did not notify the Department of the change in circumstances of the relationship with his ex-spouse as required by s 104, staying in Australia for a further 11 months even though he was no longer a dependent of his ex-spouse, which was the reason he was granted the visa. At hearing and in the reply to the s 359A letter when raised with him the applicant indicated he discovered the marriage breakdown when he finally returned to India in 2017. The Tribunal does not accept this and is of the view if [Ms B] was prepared to inform the Department of the breakdown of the marriage as at 22 February 2022 that at some time over the next 11-month period the applicant would have known and should have informed the Department.

107.   The Tribunal gives this consideration weight in favour of exercising its discretion not to cancel the visa.

The time that has elapsed since the non-compliance

108.   The non-compliance occurred when the application was made on 17 January 2021. The applicant arrived in Australia [in] December 2021. While the Tribunal acknowledges that since this period the applicant has established himself in Australia, the Tribunal notes the applicant has been on notice, since being notified by the Department on 9 January 2023 that there was evidence of non-compliance with the visa application which may result in the cancellation of the visa.

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

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

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

Any contribution made by the visa holder to the community

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

112.   While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

Whether there would be any consequential cancellations under s 140

113.   The applicant is married but his spouse is not part of this application. He has no children. Therefore, 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.

114.   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.

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

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

117.   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

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

119.   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.

120.   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)

121.   The Tribunal has considered that he is very remorseful as to providing the incorrect information and bogus document.

122.   It is his evidence that he did not advise his current spouse that he was married previously and entered Australia previously as outlined above. It has accepted she did not know he had previously been married and been in Australia. It accepts that they continue to be married and are living together in a rented home. They provided consistent evidence as to key factors of their relationship when asked at hearing. It accepts she was granted a subclass 485 visa on 14 August 2024, valid for 3 years, and she may then wish to apply for a permanent visa. It accepts her evidence that they would remain married. It accepts the hardship on her mentally, emotionally and financially would be significant if the visa was cancelled as they would likely be permanently living apart at least until February 2026 apart from visits to India or elsewhere. It gives this significant weight in favour of the Tribunal exercising its discretion not to cancel the visa.

123.   It has also considered the financial, emotional and mental effects on him if the visa is cancelled above for the reasons he claims and that he will have to live apart from his spouse for an extended period. It also gives this weight in favour of the Tribunal exercising its discretion not to cancel the visa.

124.   The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant had given incorrect information and a bogus document with his visa application and that he did not comply with s 101 and s 103 of the Act. The Tribunal has found that there are grounds for cancelling his visa. It considers providing a bogus passport with a different birth date and not correctly answering information as to previous visits, to be of significant concern and that this strongly weighs in favour of the Tribunal exercising its discretion to cancel the visa.

125.   The Tribunal’s concern is that the decision to grant the visa was in part based on the incorrect information and bogus documents because his student study record, previous marriage, staying in Australia after the previous marriage had ended, previous visits to Australia and not providing documentation as to divorcing [Ms B]  would have been relevant in determining cl 500.312 and ultimately to the grant of the Student visa as a dependent. This factor also weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

126.   It has considered the circumstances that led to the cancellation, and while it accepts he may not have wanted his spouse to know about the previous marriage, and the difficulties he faced as a result of the ending of the previous marriage, there was no medical evidence to support his claims of mental health issues due to the stress and other factors he claims he faced. It has considered that the circumstances that led to the cancellation were not out of his control. Notwithstanding, it has given this some weight in favour of the Tribunal exercising its discretion not to cancel the visa.

127.   While it accepts he is very remorseful and will not provide such information in the future; it views as of concern that he not only provided incorrect information and a bogus document to the Department, he obtained a bogus passport within the meaning of s 5(1)(c) from the Indian authorities without telling them he currently held a valid passport, that he did not tell the truth to his spouse for an extended period about his previous marriage and visits to Australia and did not advise the Department about his change of circumstances regarding the breakdown of his marriage. It notes when raised with him he said he did not find this out until he finally departed but as outlined above the Tribunal does not accept this as correct. It views his repeated behaviour, albeit in the past of not telling the truth as significantly weighing in favour of the exercise of the Tribunal’s discretion to cancel the visa.

128.   The Tribunal is satisfied that while there are aspects that are favourable to the applicant, however due to the seriousness of the breach and other factors outlined above, there are more matters and circumstances that weigh in favour of the exercise of the Tribunal’s discretion to cancel the visa. The Tribunal is mindful of the seriousness of providing bogus documents, particularly a passport and the incorrect information as outlined above.

129.   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

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

Gabrielle Cullen
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

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

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

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

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

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

97Interpretation

In this Subdivision:

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

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

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

98Completion of visa application

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

99Information is answer

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

100Incorrect answers

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

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.