2313641 (Migration)

2313641 (Migration) [2024] AATA 4283 (17 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Prakash Srinivasan (MARN: 0960121)
CASE NUMBER:  2313641
MEMBER:Gabrielle Cullen
DATE:17 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 17 September 2024 at 1:37pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information and bogus documents provided as part of visa application – access to sufficient funds – fixed deposit and residential property – verification checks – fraudulent generation – father’s withdrawal of funds – mother and uncle now supporting – claim that information correct at time of application – prevalence of document fraud – mother’s and uncle’s support now does not overcome incorrect information in application – study and business plans – no-study condition on bridging visa – mandatory legal consequences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 101(b), 103, 109(1), 359AA, 376(3)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214
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 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India. On 24 May 2022 the applicant applied for a Student (Higher Education Sector) (Subclass 500) visa as the primary applicant which was granted on 27 July 2022 valid to10 September 2025. He arrived in Australia [in] August 2022.
On 14 August 2023 the delegate sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC) of his Student visa under s 109 of the Act.
On 25 August 2023 the applicant responded to the NOICC as outlined below.
On 31 August 2023 the delegate cancelled the applicant’s Student visa under s 109 on the basis that he had not complied with s 101 and s 103 of the Act as he had provided incorrect information and bogus documents to the Department as part of his Student visa application submitted on 24 May 2022.
On 4 September 2023, the applicant applied to the Tribunal for a review of that decision and attached the notification letter regarding the decision to cancel his visa under s.109 as well as the Department decision to cancel the visa.
The applicant appeared before the Tribunal via video on 12 September 2024 to give evidence and present arguments. His representative attended the hearing. While the applicant’s representative initially asked for one week to respond following the PRISMs record being raised under s 359AA, at the end of the hearing he advised this was no longer required.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
s.376 Non- Disclosure Certificate
On 10 July 2024 the Tribunal wrote to the applicant via his representative advising that there is a s 376 Non-Disclosure Certificate on the Department’s file which it considered is valid. It outlined in the letter the basis why the disclosure of the material it contains would be contrary to public interest as contained in the Certificate.
On 16 August 2024 the applicant’s representative responded to the letter outlining why the information should be disclosed to the applicant and requested the Tribunal exercise its discretion under s 376(3)(b) to disclose the information.
At the hearing the Tribunal advised that it considered the Certificate to be valid. It referred to its previous letter sent to the applicant in regard to the Certificate which outlined the reasons given by the Department for the non-disclosure of the information. The applicant at hearing accepted the validity of the certificate. The applicant’s representative did not.
The Tribunal outlined at hearing the gist of the information it covered. It noted it related to communication with and a report from the Department’s Document Examination Unit (DEU) regarding verification checks undertaken with regard to the documents submitted by the applicant in the funds.pdf (the list of the specific documents within the funds.pdf are outlined in more detail below). The Tribunal noted that the information from the DEU described in the protected information is as described in the Department decision. Specifically, the DEU concluded that the documents the applicant provided in support of his Student visa application had evidence of production irregularities or intentional alteration/manipulation to the generation of the documents assessed to a degree that the only reasonable proposition is that the originating document is counterfeit or fraudulently altered. The DEU expressed the opinion the non-original document is a fraudulent generation.
The applicant responded that the documents are genuine which is further considered below.
The Tribunal noted there was other information protected by the Non-Disclosure Certificate that referred to other applicants and the assessment of their documents by the DEU which was irrelevant to the review by the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Section 109(1) of the Act allows the Minister to cancel a visa if the applicant 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 applicant under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s 107?
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 and s 103.
The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 31 August 2023.
The information indicates that on 24 May 2022 the applicant applied for a Student (Higher Education Sector) (Subclass 500) visa as the primary applicant. He was assessed by the delegate as meeting the criteria and the visa was granted on 27 July 2022 valid to 10 September 2025.
In the NOICC dated 25 August 2023, the delegate set out the particulars of the possible non‑compliance with s 101(b) and s 103 on the basis of incorrect information provided to the Department and bogus documents. It raised with the applicant that the Department reasonably suspects he has provided bogus documents with his application made on 24 May 2022 within the meaning of s 5(1)(b) as the documents are counterfeit or have been altered by a person who does not have authority to do so.
The Department decision notes that in the NOICC the delegate set out the particulars of the non‑compliance being that in the application for the Student visa the applicant provided the following answers.
Under the heading ‘Funding for stay’, the applicant provided the below answers (in bold):
Do all applicants in this application confirm that they each have access to sufficient funds to support themselves for the total period of stay in Australia and understand that further evidence of funds may also be requested?
Yes
Show how each applicant included in the application will support themselves in Australia to meet living, tuition and school costs. Select any that apply.
Other financial support
Give details:
Student parents will be sponsoring the entire fees & study duration of stay in Australia. They have annual income approx. 11lacs also they have fixed deposit approx. 24lacs.
Under the heading ‘Declarations’, the applicant provided the following answers (in bold):
The applicants declare that they:
Have provided complete and correct information in every detail on this form, and on any attachments to it.
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may be subsequently cancelled.
Yes
The delegate noted that the applicant attached the following documents in the Funds.pdf
·Fixed deposit summary from [Bank 1], [Account Number 1], Name: [Mr A] son of [Mr B] (sole owner), with principal amount of INR 2,480,000 as at 18 February 2022 and maturity amount of INR 2,606,702.00, with maturity date of 19 Feb 2023.
·Asset certification from [Chartered accountants], for [the applicant] S/o [Mr A], confirming a total net worth of INR 3,52,48,100, AUD 6,45,806, signed by C.A. [Mr C] (Partner) – dated 20 May 2022.
·Valuation report of residential house situated at [address] Distt. Kaithal, [Haryana], from [Consulting Architect], Owner, [Mr A] S/o [Mr B] – dated 20 May 2022.
The NOICC as recorded in the Department decision notes that the Department on 27 June 2022 initiated verification checks with the DEU. On 28 October 2022, the DEU provided information in relation to the documents detailed above which confirmed they are not genuine documents. The DEU said that the documents the applicant provided in support of their Student visa application had evidence of production irregularities or intentional alteration/manipulation to the generation of the documents. The DEU advised that the only reasonable proposition is that the originating document is counterfeit or fraudulently altered. The DEU expressed the opinion the non-original document is a fraudulent generation.
Based upon this information the delegate outlined in the NOICC that the applicant had provided incorrect answers and not complied with s 101(b) in the Student visa application lodged on 24 May 2022 as he provided incorrect information that he had access to funds for his intended stay in Australia and details as to the access to funds as outlined in Funding to Stay. The delegate concluded that the applicant did not have access to sufficient funds as claimed in their Student visa application and the details of that funding was incorrect.
The delegate also considered based on the information from the DEU that the applicant had not complied with s 103 as the documents submitted in the funds.pdf as outlined above with the application are bogus, within the meaning of S 5(1)(b) in that they are counterfeit or have been altered by a person who does not have the authority to do so.
In response to the NOICC the applicant submitted that the information provided in his application is correct and he has genuine access to funds provided by his family and that he has been supported since his arrival with funds from his family. He claimed his father had to withdraw the funds from the fixed deposit account prior to the maturity date due to unforeseen circumstances. He claimed his mother and uncle are providing consistent financial support during his stay in Australia. He claimed he therefore satisfied the requirements of cl 500.214. He claimed he is committed to completing his education in Australia and that he has consistently met all tuition fee and course progression obligations. He submitted that cancellation of his visa would disrupt his education and have an adverse effect on his future.
He also provided the following documents.
- Affidavit from the applicant’s `father, [Mr A] s/o [Mr B] confirming he withdrew funds from the fixed deposit prior to maturity and the applicant had access to financial support from family members dated 23 August 2023.
- Letter from [Bank 1] with transaction history confirming the fixed deposit [Account Number 1] was withdrawn prematurely on 30 July 2022 dated 16 August 2023.
- Affidavit from the applicant’s uncle, [Mr D], s/o [Mr B] confirming they are bearing the costs of the applicant’s stay in Australia and have sufficient available funds dated 22 August 2023.
- Balance certificate from [Bank 2], [Account Numbers 2-5]
held by [Mr D] confirming a total account balance of INR 2,797,935.85 at close of business on 21 August 2023.
Certificate III in [Subject 1] dated 22 August 2023.
- Letter from [Bank 1], [Account Number 6] held by [Mr E] wife of [Mr A] (mother of the applicant) confirming a savings account balance of INR 527,690.31 at close of business 21 August 2023, signed by [F] and dated 22 August 2023.
- Course progress report from [Institute 1] confirming the applicant’s enrolment in the
- Statement of account from [Institute 1] outlining course fee and enrolment payments between 17 November 2022 and 16 August 2023 dated 22 August 2023.
- Declaration from the applicant dated 24 August 2023.
- Transfer of funds screenshot to [Account Number 7] of the applicant for $5000AUD from [Mr D], HR, India dated 17 March 2023.
He also provided his passport and that of his father and uncle, confirming they are as named above.
On 31 August 2023 the delegate cancelled the applicant’s Student visa under s 109 on the basis that the applicant had not complied with s 101(b) and s 103 of the Act as he had provided incorrect information and bogus documents to the Department on the basis of the information outlined above. The delegate considered the applicant’s response to the NOICC and was not satisfied that this addressed the verification checks that were undertaken by the DEU that determined the only reasonable proposition is that the originating document is counterfeit or fraudulently altered. The delegate noted the applicant provided a letter purportedly issued by [Bank 1] dated 16 August 2023 confirming the fixed deposit withdrawal in response to the NOICC. However, the delegate noted the letter was not signed and did not contain any identifying particulars of the issuer, which would be expected from such a letter. The delegate gave greater consideration to the verification checks undertaken by the Department’s DEU. The delegate also considered the discretionary criteria.
At hearing the Tribunal outlined in detail the issues before the applicant as outlined above, including the outcome of the verification check undertaken by the Department’s DEU, and that it may find he did not comply with s 101(b) in that the funds information and details of that funding provided in the application was incorrect. It also noted that it may find that he did not comply with s 103 as he presented, produced or provided bogus documents and caused to be given to the Department documents contained in the Funds.pdf file submitted with the application for the visa. It referred to s 5(1)(b) and on the basis of the information undertaken by the Department’s DEU may find that it reasonably suspects the attached documents in the funds.pdf, outlining them, are counterfeit or have been altered by a person who does not have authority to do so. It particularly referred to the Fixed Deposit summary from [Bank 1], [Account number 1], Name: [Mr A] son of [Mr B] (sole owner), with principal amount of INR 2,480,000 as at 18 February 2022 and maturity amount of INR 2,606,702.00, with maturity date of 19 Feb 2023.
The applicant stated that all the documents are genuine. He said his father held the sum as outlined in the [Bank 1] Fixed Deposit summary but soon after he applied for the visa his father had to withdraw the funds to buy land as he is a farmer. He referred to the letter dated 16 August 2023 from [Bank 1] which confirmed that the applicant’s father held the above sum in the account at time of application.
The Tribunal referred to s 5(1)(b) and that a bogus document is one where the Tribunal reasonably suspects it is counterfeit or has been altered by a person who does not have authority to do so. It referred to the evidence from the DEU which may lead it to reasonably suspect the funds document from [Bank 1] submitted with the application is a bogus document within the meaning of s 5(1)(b). It noted the Department’s concerns with the genuine nature of the letter dated 16 August 2023 purportedly from [Bank 1] and outlined its own concerns with this letter and questioned whether it is genuine. It raised as of concern that country information refers to the prevalence of document fraud in India[1].
[1] DFAT Country Information Report India dated 29 September 2023 at 5.41.
The applicant again reiterated that the information and the documents are genuine, and he has not provided incorrect information. The applicant’s representative while accepting there was a high level of document fraud in India, argued that the documents are genuine and therefore correct information was provided in the application. He questioned the methodology of the DEU to come to its determination. He argued more weight should be placed on the 16 August 2023 letter from the bank showing that the original Fixed Deposit summary submitted with the application is genuine and that the evidence from the DEU is hearsay. He submitted that there is no advice as to the methodology the DEU undertook to come to that decision.
The Tribunal then raised the discretionary with the applicant and the evidence provided is considered below.
Consideration
The Tribunal has considered all of the submissions and documents he has submitted as outlined above, however, for the reasons that follow the Tribunal is of the view that the applicant provided incorrect information in the application that his parents will be sponsoring the entire fees and study during his stay in Australia as they have a fixed deposit of approximately 24lacs. Further, for the reasons outlined below, it reasonably suspects the Fixed Deposit summary from [Bank 1], [Account Number 1], Name: [Mr A] son of [Mr B] (sole owner), with principal amount of INR 2,480,000 as at 18 February 2022 and maturity amount of INR 2,606,702.00, with maturity date of 19 Feb 2023 is a bogus document as defined in s 5(1)(b) of the Act, as it reasonably suspects it is counterfeit, being an imitation designed to pass as an original; a forgery.
Firstly, the Tribunal places significant weight on the evidence as outlined in the s 107 notice that on 28 October 2022, the DEU having examined the documents in the funds.pdf which included the Fixed Deposit summary from [Bank 1] advised that the document is counterfeit or fraudulently altered. For the reasons outlined above the DEU expressed the opinion the non-original document is a fraudulent generation. While the Tribunal does not have before it evidence of the methodology used by the Department’s DEU to make this finding or the nature of the forensic examination undertaken by the DEU, the Tribunal accepts it has expertise in document examination.
At hearing and in his response to the NOICC, the applicant advised that the information was correct at the time of application and the Fixed Deposit document and other documents in the funds.pdf are genuine. He advised that his father subsequently withdrew the funds for unforeseen reasons. He and his representatives referred to the letter from [Bank 1] with transaction history confirming the fixed deposit, [Account Number 1] was withdrawn prematurely on 30 July 2022 dated 16 August 2023. His representative submitted that the Tribunal should place more weight on this subsequent letter from [Bank 1] than on information from the DEU.

However, the Tribunal has concerns as to the genuine nature of this subsequent letter from [Bank 1] as the letter dated 16 August 2023 notes the address of the branch as Ground Floor, [Colony – spelling 1, [Road], Near [Building], Kaithal – [Postcode], whereas the website of [Bank 1] notes the address of this branch as [Road], [Colony – spelling 2]. Kaithal – [Postcode][2]. It notes the landmark as Near [Building – Indian name] – which means [Building – English name]. The Tribunal is of the view that an official document from [Bank 1] would spell [Colony] consistently with that on its website. When combined with the Tribunal’s concerns as to the prevalence of document fraud in India, as raised with the applicant at hearing, the Tribunal places no weight on this letter as evidence the Fixed Deposit summary from [Bank 1], [Account Number 1], Name: [Mr A] son of [Mr B] (sole owner), with principal amount of INR 2,480,000 as at 18 February 2022 and maturity amount of INR 2,606,702.00, with maturity date of 19 Feb 2023 is genuine.
[2] [Reference]
The Tribunal has also considered the Affidavit from the applicant’s father dated 23 August 2023 attesting that he held 24,800000 in the above [Bank 1] Fixed deposit account but due to some circumstances he used the funds; however, places more weight on the finding of the DEU that the document is a fraudulent generation.
It has also considered the affidavit from the applicant’s uncle, his balance certificate from [Bank 2], confirming a total account balance of INR 2,797,935.85 at close of business on 21 August 2023, the letter from [Bank 1], [Account Number 6] held by [Ms E] wife of [Mr A] confirming a savings account balance of INR 527,690.31 dated 22 August 2023 and transfer of funds screenshot to [Account Number 7] of the applicant for $5000AUF from [Mr D], dated 17 March 2023. However, these documents do not address or overcome the Tribunal’s concerns that the Fixed Deposit summary from [Bank 1] referring to [Account Number 1], Name: [Mr A] son of [Mr B] (sole owner), with principal amount of INR 2,480,000 as at 18 February 2022 and maturity amount of INR 2,606,702.00, with maturity date of 19 Feb 2023 is a bogus documents as defined in s 5(1)(b) of the Act, as it reasonably suspects it is counterfeit, being an imitation designed to pass as an original; a forgery.
Specifically, the term ‘counterfeit’ is not defined in the Act or Regulations. The Macquarie Dictionary provides a definition for ‘counterfeit,’ which the Tribunal considers pertinent and applicable to the provisions of s 5(1), as follows:
adjective 1.  made to imitate, and pass for, something else; not genuine: counterfeit coin.
2.  pretended: counterfeit grief.
–noun 3.  an imitation designed to pass as an original; a forgery.
4. Archaic a copy.
5. Obsolete a likeness; portrait.
–verb (t) 6.  to make a counterfeit of; imitate fraudulently; forge.
7.  to resemble.
8.  to simulate.
–verb (i) 9.  to make counterfeits, as of money.
The Tribunal has formed the view that there is a reasonable suspicion that the Fixed deposit Summary in the name of the applicant’s father submitted with the application for the visa the subject of the s 107 notice be described as a document that has been made to imitate and pass for, something else other than a genuine representation of funds the applicant’s father held at the time
It follows that the Tribunal finds that the Fixed Deposit summary from [Bank 1], [Account Number 1], Name: [Mr A] son of [Mr B] (sole owner), with principal amount of INR 2,480,000 as at 18 February 2022 and maturity amount of INR 2,606,702.00, with maturity date of 19 Feb 2023 is a bogus documents as defined in s 5(1)(b) of the Act.
In making this finding it has considered all the documents submitted by the applicant, the evidence of the applicant at hearing and submissions by the representative; however, these do not outweigh the Tribunal’s concerns and information from the Department’s DEU which leads the Tribunal to reasonably suspect that the above document is a bogus document within the meaning of s 5(1).
The applicant did not dispute that he submitted the document with his application for the visa. It therefore finds that the applicant has caused this bogus document to be given. It follows that there has been non-compliance by the applicant with s 103 of the Act in the way described in the s 107 notice.
Based on the findings above, having considered all the evidence and submissions, that the Tribunal reasonably suspects that the Fixed Deposit summary is a bogus document within the meaning of s 5(1), it follows that the Tribunal is of the view the applicant has provided incorrect information in the application that he has access to funds and the details of those funds are that his parents will be sponsoring the entire fees and study duration of stay in Australia and they have fixed deposit of approx. 24lacs.
It has also considered the affidavit from the applicant’s uncle, his balance certificate from [Bank 2], confirming a total account balance of INR 2,797,935.85 at close of business on 21 August 2023, the letter from [Bank 1] referring to [Account Number 6] held by [Ms E] wife of [Mr A] confirming a savings account balance of INR 527,690.31 dated 22 August 2023 and transfer of funds screenshot to [Account Number 7] of the applicant for $5000AUD from [Mr D], HR, India dated 17 March 2023 and his claim he has access to funds from his family. However, these documents do not indicate that at the time of application, he had access to funds from his parents in the sum of 24 lakh.
While he has submitted information, he had access to funds from his uncle and mother; this does not overcome the Tribunal’s concern that he provided incorrect information in his application for the visa as outlined above.
The applicant did not dispute that he completed his application for the visa.
The Tribunal therefore finds that the applicant has provided incorrect information and there has been non-compliance by the applicant with s 101(b) of the Act in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. The Tribunal has considered each of the circumstances as follows.
The Tribunal raised these with the applicant at hearing and the evidence provided as well as written evidence provided is considered below.
The correct information
The applicant submitted that he provided correct information in the application that at the time of application his parents, particularly his father held approximately 24 lakh and they are financially sponsoring him. He claims he had genuine access to funds from his parents at the time of his application, but for unforeseen reasons this changed and his father had to withdraw the funds. The Tribunal has considered all the submissions and documents the applicant has submitted but has found that this was incorrect information at the time of application for the reasons outlined above.
The Tribunal does not have the correct information of funds the applicant’s parents held at the time of application and does not know whether they would show that the applicant’s parents had sufficient funds to finance the applicant’s study.
It does have information his mother held a money deposit of INR 527,690.31 dated 22 August 2023 and his uncle held a balance of INR 2,797,935.85 at close of business on 21 August 2023. These are dated after the date of application.
The Tribunal gives this consideration neutral weight.
The content of the genuine document (if any)
The applicant has submitted when this criterion was raised that the information is correct as regards to the funds he had available from his parents as indicated in the application and the documents in issue, particularly the Fixed deposit summary from [Bank 1], [Account Number 1], Name: [Mr A] son of [Mr B] (sole owner), maturity amount: INR 2,606,702.00, Maturity date: 19 Feb 2023 is genuine. The Tribunal has considered all the submissions and documents the applicant has submitted, as well as his evidence these documents are genuine and the information was correct at the time of application but has found, for the reasons outlined above, that this document is a bogus document within the meaning of s 5(1).
The Tribunal does not have the applicant’s father’s genuine bank documents at the time of application and does not know what these would show as to the applicant’s father’s fixed deposit and does not know whether they would show that the applicant’s father has sufficient funds to finance the applicant’s study. It therefore does not have them before it to consider.
The Tribunal gives this consideration neutral weight.
Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document
One of the primary criteria for the grant of the Subclass 500 (Student) visa is that an applicant meets cl 500.214, the genuine access to funds criteria, which requires an applicant to meet his costs and expenses of his intended stay in Australia. Via the Financial Capacity Instrument LIN 19/98 evidence of financial capacity can relate to money deposits held by a family member. While he has provided subsequent evidence of funds from his uncle and mother and evidence of their support regarding a money transfer, this evidence is dated after he applied for the visa and after the determination was made by the Department to grant the visa. His claim his family have provided funds to him since his arrival in Australia, is also after the delegate granted the visa in July 2022 before he arrived in Australia.
The Tribunal therefore considers that the decision to grant the visa was based on the incorrect information and on the bogus documents, particularly evidence of his father’s funds in [Bank 1] at time of application being INR 2,480,000 as at 18 February 2022 and maturity amount of INR 2,606,702.00, with maturity date of 19 Feb 2023.
The Tribunal considers that this factor significantly weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the incorrect information and bogus documents, particularly evidence of funds held by his father with [Bank 1], were provided in support of the Subclass 500 Student visa application. The applicant contends the information and documents submitted with his application for the Student visa and the subject of the s 107 notice are genuine. The Tribunal has considered all the submissions and documents the applicant has submitted, as well as his oral evidence that the information and documents are genuine but has found, for the reasons outlined above, that the information is incorrect and the documents are bogus documents within the meaning of s 5(1).
The Tribunal gives this neutral weight.
The present circumstances of the applicant
The applicant said he is not working as he is not allowed due to a condition of his visa. He said prior to this he was working in the disability sector. He is not in a relationship. He said he had to stop studying as a no study condition was placed on his visa, which occurred when his visa was cancelled. The Tribunal accepts he has been unable to study or work since August 2023 due to conditions 8207 (no study) and 8101 (no work) being placed on his visa.
In his evidence to the Tribunal at hearing the applicant referred to his study in Australia and the adverse effect that the cancellation of his visa would have on him, including his future career aim. He noted he was enrolled and studying the Certificate III in [Subject 1] leading to a Graduate Diploma of [Subject 2] when his visa was cancelled and the no study condition was placed on his visa. The Tribunal accepts such a condition was placed on his visa and accepts he has been unable to study or achieve any course progress as a result as also indicated in the PRISMS record. It draws no adverse inference or does not rely on the PRISMS record on file noting his lack of course progress since August 2023 as he had a ‘no study’ condition placed on his visa.
He said he came to Australia to study a Bachelor of [Subject 3] but changed to [Subject 1]. He said there were no exams in the Bachelor of [Subject 3] and when asked the subjects he studied he referred to [subjects 3a and 3b]. He said he moved from Adelaide to Melbourne, he was young and despondent in Adelaide and then moved to study [Subject 1].
The Tribunal raised with him via s 359AA details in the PRISMS record that he was enrolled in the Bachelor of [Subject 3] from 25 July 2022 to 23 March 2023, then a Certificate III in [Subject 4] from 7 November 2022 to 14 November 2022 and then the Certificate III in [Subject 1] from 20 February 2023. It draws no adverse inference on his lack of completion of the [Subject 3] course as it accepts the difficulty of this course and accepts he changed from [Subject 4] to [Subject 1].
He said his aim is to complete these courses to open a [Subject 1] training centre in India. As to why he needs to study the Graduate Diploma of [Subject 2] to open a training centre in [Subject 1] when it appears this course has nothing to do with the skills of [Subject 1]. He did not provide an explanation.
The Tribunal asked if he wanted to work in the [Subject 1] area to open a training centre on return why he would not work in this sector in Australia, gaining experience and he said at that time he was studying and attending the course. The Tribunal questioned whether his lack of work in the sector, undermines his claim he is in Australia to study to return to open a training centre in the [Subject 1] area.
The Tribunal asked why he could not return to India and undertake courses so he could open a [Subject 1] training centre on return. He said that the courses in India are not as good and the courses in Australia are far better, which the Tribunal accepts. He also said his father does not want him to return as many young people in Haryana are into illegal drugs and activities and he would rather him stay away from that.
The Tribunal accepts that he has been unable to study and achieve any course progress since the cancellation of the visa as he has a ‘no study’ condition placed on his Bridging visa. It accepts from the information provided in response to the NOICC he had completed 8/34 units of competency as at 22 August 2023 according to his education provider. It accepts he was achieving course progress at the time his visa was cancelled. It accepts at the time the no study condition being imposed he had paid $7,778.32 in fees out of a total of $21,000. It accepts courses are better in Australia but that he could return to India to achieve his career aim as there are courses there. It views as of concern why he was not working in the area of his claimed career dream or aim before the visa was cancelled.
It has also considered the affects on his dream and affects on his family if he cannot finish the course in Australia and that he would have to return to his home in Haryana, where drugs are prolific and there are many addicts and it is not a good environment. However, the Tribunal notes a Student visa is a temporary visa and he will have to return, albeit sooner if the decision to cancel the visa is affirmed.
The Tribunal gives this consideration weight in favour of exercising its discretion not to grant the visa.
The subsequent behaviour of the applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.
Any other instances of non-compliance by the applicant known to the Minister
The Tribunal finds there are no other instances of non-compliance by the applicant known to the Tribunal. The Tribunal gives this factor neutral weight.
The time that has elapsed since the non-compliance
The non-compliance occurred when the application was made on 24 May 2022. 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 14 August 2023 that there was evidence of non-compliance with the visa application which may result in the cancellation of the visa.
In these circumstances the Tribunal gives this neutral weight.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal which suggests that there have been breaches of law by the applicant since the non-compliance.
Any contribution made by the applicant to the community
At hearing the applicant indicated he had not contributed to the community. The Tribunal gives this consideration neutral weight.
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
The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor neutral weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the applicant being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled, the applicant would continue to hold a Bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. 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.
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.
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

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.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matters (including the degree of hardship that may be caused to the applicant and any family members)
The Tribunal has considered that he has paid $ 7,778.31 towards studying the Certificate III in [Subject 1] and has completed 8 units towards this course. It views as of concern that his reason for studying is to open a training centre in [Subject 1] when he has not worked in this area prior to the no work condition being placed on his visa. Notiwthstnaing, it accepts, while there are courses in India, the Australian courses are better and accepts he is part way though his course. It accepts the cancellation of the visa would affect his dream of achieving Australian qualifications. It notes however, he can study these courses in India, although they would not be as good or as beneficial to his future career aim. The Tribunal gives this weight in exercising its discretion not to cancel the visa.
It has also considered the concern of his family and the applicant as to the level of drugs in his home area and his father’s concern as to the applicant returning; however notes the Student visa is a temporary visa and he would have to return in any event.
It has considered his claim that he has provided correct information and genuine documents but for the reasons outlined above has not accepted this.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant had given incorrect information and bogus documents with his visa application and that he did not comply with s101 and s 103 of the Act. The Tribunal has found that there are grounds for cancelling his visa.
The Tribunal’s concern is that the decision to grant the visa was based on incorrect information and bogus documents, particularly being the applicant’s father’s fixed deposit summary indicating he held 24 lakhs as at February 2022. This would have been relevant as to whether he had genuine access to funds. It has considered his claim that he has always had financial support from his family, the evidence from his uncle and mother and that he received $5,000 from his uncle in March 2023. However, this does not alter its view that the decision to grant the visa was based on the incorrect information and bogus documents, particularly evidence of his father’s fixed deposit of approximately 24 Lakh. This factor weighs significantly 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 and incorrect information in support of an application for the visa.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Gabrielle Cullen
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)     applicants in stated circumstances; or
(c)      applicants in a stated class of people (who may be applicants in a particular place); or
(d)     applicants in a stated class of people (who may be applicants in a particular place) in stated circumstances.
(2)If the applicant 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 applicant in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the applicant 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 4283

17 September 2024

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