Adhikari (Migration) - [2021] AATA 3789

Adhikari (Migration) [2021] AATA 3789 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dheeraj Adhikari
CASE NUMBER:  2003812
HOME AFFAIRS REFERENCE(S):          BCC2019/4809567
MEMBER:Antoinette Younes
DATE:18 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 18 August 2021 at 5:55 PM

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – criminal conviction – applicant breached condition 8202 – non- enrolment – applicant gave to the Tribunal a bogus document – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 116, 359
Migration Regulations 1994 (Cth), r 2.43
CASES
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 24 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of several offences against NSW laws. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 2 June 2021 and 11 August 2021 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
SECTION 375A CERTFICATE
In the course of the hearing, the Tribunal discussed with the applicant the existence in the Departmental file of a s 375A Certificate which, as a result of not being signed, the Tribunal determined was invalid.
The Tribunal advised the applicant that the information referred to in the Certificate essentially relates to communications between the Department and the Police about the circumstances surrounding the charges, including a Facts Sheet. The applicant confirmed that he has a copy of the Facts Sheet. The Tribunal notes that the delegate’s decision record provides the relevant summary.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
Section 116(1)(g) - prescribed ground
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied that a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.
Section 116 provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(g) a prescribed ground for cancelling a visa applies to the holder.
The prescribed grounds for cancellation under s 116(1)(g) are found in reg 2.43(1)(oa) of the Regulations, which provides:
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
During the first hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.
The delegate’s decision record indicates that the Department received information from the NSW Police, that on 28 November 2019, the applicant was convicted at Newcastle Local Court of the following seven offences:
·     Unlawfully obtain goods (personal custody) - Fine $500.00.
·     Dishonestly obtain financial advantage or cause disadvantage by deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.
·     Deal with identification information to commit, facilitate commission of an indictable offence - deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.
·     Deal with identification information to commit, facilitate commission of an indictable offence - deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.
·     Deal with identification information to commit, facilitate commission of an indictable offence - deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.
·     Deal with identification information to commit, facilitate commission of an indictable offence - deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.
·     Dishonestly obtain property by deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.
The delegate’s decision record further indicates that the NSW Police provided a copy of the Facts Sheet to the Department setting out the circumstances of the offences, including the applicant’s payment of his Optus bills using another person’s credit cards. The circumstances also indicate that the applicant accessed the details of a credit card belonging to a co-worker at his place of employment and accessed the details of other people’s credit cards via the dark web.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/Notice) & RESPONSE
On 15 January 2020, the Department sent to the applicant a NOICC based on the above convictions which suggested that s 116(1)(g) is enlivened.
On 17 January 2020, the applicant responded to the NOICC as follows:
·He acknowledges that he has committed offences of a serious nature, although none of the offences is a violent offence. Prior to the commission of those offences, he was never involved in any criminal activities. The sentence that he has received is at the lower end of the scale.
·At the time of the offences, he was living alone and he had no friends to support him during difficult times. All his family is in Nepal. During that time, his mother was suffering from cancer and she was admitted to hospital. He was in desperate need for money. Although he was working at the time, this was not enough to support his family in Nepal.
·He admitted to the offending when he was arrested. He knew that he had done the wrong thing by the victim who was his colleague. He was just desperate for money and he was not thinking about the consequences of his actions. He is ashamed and he regrets his actions. He lost his job and he was in desperate need to find work. He found a cleaning job through a Nepalese national who helped him. If allowed to stay in Australia, he would not reoffend. He is now a different person and he has the support of family and friends. He also has a new job. His new employer and new friends have made a difference.
·He came to Australia in January 2018 to study. He is a good student and has done well in completing his studies. At the time of offending, he was eager to obtain financial advantage to help his mother because he had lost interest in studying. He has now changed and is ready to enrol in the course. His primary goal is to complete his studies in Australia. He has studied at the University of Newcastle and was working at the same time. He worked for Harry’s Schnitzel Joint for almost two years, but they sacked him due to the offending.
·Apart from being diagnosed with severe depression, he has no other health issues. If he were to be forced to depart Australia, his depression would be impacted and although he would be able to access medication, without his family and studies, he is uncertain of how motivated he would be. He could fall back into his old habits.
·He has no relatives in Australia. Although his parents are in Nepal, they have been employed in other countries. His parents are now both retired with no financial support. They also have critical health conditions. In Nepal, he does not have a place to work and he does not know his way around. His family have warned him that if he does “not step up, that is it”.
In support of the application for review, the applicant provided to the Tribunal a letter on 29 February 2020 referring to, among other things, “some mistake in the final decision of Department of home affairs…”, namely the comment that he had completed a Bachelor’s Degree in Information Technology, which is not correct. He has not been able to study due to what was happening, including his parents’ ill-health. There is still one semester to complete. Moreover, due to his parents’ ill-health, they had to use money intended for his stay in Australia. He is now focused on his life and future. He is doing well. He has applied for the same course but is hesitating to enrol due to the visa cancellation. The visa cancellation would have a significant impact on his life and currently he does not have a “minimum degree required to get a job”. The applicant also provided copies of medical records referring to his mother’s health and treatment in Nepal, and a letter of offer dated 23 March 2021 from SBTA (Sydney Business and Travel Academy) in the General English Course commencing on 23 September 2019 until 15 November 2019.
The applicant agreed that he has been convicted of the above seven offences. The Tribunal advised the applicant that the Tribunal considered the offences to be serious. The applicant apologised for his behaviour and said he did not intend to do anything wrong.
There is no dispute that the applicant has been convicted of offences against laws in NSW. Therefore s 116(1)(g) is enlivened in that there is a prescribed ground for cancelling the applicant’s visa, as contemplated by reg 2.43(1)(oa).
For those reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
·The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
The applicant arrived in Australia in January 2018 to undertake studies in IT. He stated that he has not completed the bachelor’s degree and that there is one semester left. He told the Tribunal that the University of Newcastle cancelled his enrolment as a result of the cancellation of his visa. He stated that he has obtained advice to enrol in other courses, but he was unable to do so as the educational institutions would not accept his enrolment due to the visa cancellation.
The applicant stated that he undertook an English course because he was advised to undertake studies. The applicant gave evidence that he would like an opportunity to complete his studies in Australia. He stated that he has completed 25 subjects of the bachelor’s degree in IT and only has one subject remaining.
The applicant provided to the Tribunal a letter of offer dated 23 March 2021 from SBTA in the General English Course to commence on 23 September 2019 until 15 November 2019. He said it was the only offer he could get given the visa cancellation. During the first hearing, he said he paid $250 as an application charge. The Tribunal subsequently wrote to the applicant requesting clarification about the letter of offer, namely the reference to the offer being made in March 2021 but in relation to a course in 2019. The applicant did not respond to that request. The Tribunal also wrote to SBTA seeking confirmation about the letter and no response was received.
Section 359A letter and response
The Tribunal sent to the applicant a s 359A letter, stating, among other things:
You provided to the Tribunal a letter of offer dated 23 March 2021 from SBTA (The Sydney Business and Travel Academy) in the General English Course to commence on 23 September 2019 until 15 November 2019. The Tribunal wrote to you requesting clarification about the letter of offer, namely the reference to the offer being made in March 2021 in relation to a course in 2019. You did not respond to that request. The Tribunal also wrote to SBTA seeking confirmation about the letter and no response was received. The Tribunal is concerned about this letter as it could be a ‘bogus’ document…
On 5 July 2021, the applicant responded to the Tribunal, stating as follows:
I only provided the Offer Letter I was offered by an agent to which I met online after a quick google search. For the Offer Letter I was charged AUD $250. And I never told I am currently studying English as much as I call. What I recall saying is I can only get the offer letter for the English course only as I currently do not hold a valid Student Visa. I did provide you with a letter of offer from SBTA in General English Course because the agent I was in contact provided me the letter of offer. I have absolutely no idea about the letter of offer being original or ‘bogus’ at this point of time because the agent I was in contact with has stopped responding to my e-mails and the contact number he has provided to me; now I cannot get through as it is currently un available…I can provide you the agents number and e-mail if required and also provide you the Bank Statement as a proof that I paid AUD $250 to get the service and Offer Letter from the agent…As I can no longer get in touch with my previous agent I did contacted with ESI Global which is an Education and Migration Consultant and they are willing to provide me the Offer Letter and Enrolment for the final subject of My Bachelor’s Degree.
The Tribunal invited the applicant to a further hearing on 11 August 2021, specifically to discuss the letter from SBTA. The applicant told the Tribunal that he contacted SIGlobal and spoke to an “Indian guy” whose name he does not know. He said the “Indian guy” told him to provide documents to the Tribunal and sent him the SBTA letter, which the applicant provided to the Tribunal. The Tribunal asked the applicant if he read the letter prior to sending it to the Tribunal. He replied that he did not check the letter and that at the time he just wanted to get the document. The Tribunal expressed doubts about this version of events. The applicant acknowledged that he should have checked the document and he agreed that this issue is serious. He also agreed that the letter contains incorrect information and he confirmed that he does not have a letter of offer from SBTA but stated that he could get a letter of offer.
The Tribunal considers the provision of incorrect information to be serious. The letter of offer, dated 23 March 2021 from SBTA, refers to a course in General English to commence on “23 September 2019 until 15 November 2019”; a provider cannot now offer a course that took place from 23 September 2019 until 15 November 2019. In the course of the second hearing, the applicant agreed that the letter contains incorrect information and he confirmed that he does not have an offer, but he could get one. The applicant’s explanations that he did not know of the incorrect information in the letter as he had obtained it from an agent are problematic and do not persuade the Tribunal.
The Tribunal accepts that the applicant travelled to Australia to undertake studies in IT and that he has completed a substantial number of subjects, consistent with his purpose for travelling to Australia. Although the Tribunal has doubts, the Tribunal accepts as plausible that the applicant is staying in Australia because he wants to complete his studies. The applicant confirmed that he is not currently enrolled in any course but that he could get enrolment. During the first hearing, the Tribunal raised with the applicant concerns about the nature of the offences, which include the use of IT skills in a way that has had negative consequences. The Tribunal indicated that it appears that the IT skills he has acquired have been used in a manner that is ‘unintended’ by the course, with which the applicant agreed. He also agreed that the University of Newcastle would be concerned about one of their IT students using their skills to commit IT related offences.
The Tribunal appreciates that the cancellation scheme is not intended to be punitive, but it is about, among other things, maintaining the integrity of the student migration program. The student program is intended to enhance the skills of visa holders so that they gain wider access to employment and career enhancement, as well as making a positive contribution to the community. The Tribunal has considered the applicant’s evidence that he only has one semester left to finish his degree. It is difficult to see how the applicant’s IT studies in Australia have made a positive contribution; he has used his IT skills to unlawfully access the details of other people’s credit cards via the dark web. Within that context, the Tribunal is satisfied that the applicant has no compelling need to remain in Australia.
The Tribunal gives significant weight to this consideration in favour of cancellation.
·The extent of compliance with visa conditions
The Tribunal sent to the applicant a s 359A letter as follows:
The Tribunal has obtained PRISMS records on 7 June 2021 (please see attached copy). The records show that you have had 5 enrolments cancelled and that you have finished a course in General English and a Bachelor in IT (course number 923839). The Tribunal understands and you gave evidence that you have not completed the Bachelor in IT course and that there remains one subject to complete. Consequently, there appears to be an error in the PRISMS records. The Tribunal is concerned about the number of COE cancellations, three of which appear to have occurred prior to the issuing of the NOITCC on 15 January 2020, which could suggest unsatisfactory course progress, that you might not be a genuine student and that you travelled to Australia for reasons other than to study.
On 5 July 2021, the applicant responded to the Tribunal as follows:
·The CoE for the Master of Information Technology (MIT) was cancelled after the cancellation of the student visa.
·He continued to study until his arrest and afterwards “everything went downhill and I could not concentrate on any one particular thing”. He attached the Verification of Enrolment from the University of Newcastle where he was enrolled until June 2019. The reason why he was enrolled part-time in Semester 3 was due to his mother’s hospitalisation, which impacted on his studies.
·The Bachelor of IT (course number 923839) is the first year course, which includes the first and second semesters. The Bachelor of IT (course number B037C667) was cancelled because he was not enrolled as a full-time student; “I vaguely remember that I did talk with my Student Supervisor at University of Newcastle but I cannot recall the exact process and things that has had happened during that time”. The Bachelor of IT (course number 9108A390) that was cancelled is dated the same as the BIT (course number 92383B39) showing as finished, which “is quiet confusing for me”.

The Tribunal is persuaded by the explanations that his mother’s health impacted on his studies and that the CoE for the Master of Information Technology (MIT) was cancelled due to the visa cancellation. The Tribunal has decided not to draw adverse inferences on the basis of the enrolment cancellations and the Tribunal does not make a finding that the applicant has breached visa condition(s) on this basis.
However, and as discussed by the Tribunal during the first hearing, the delegate’s decision record contains information that there is evidence of breach of condition 8202. The Tribunal asked the applicant about the period of non-enrolment since the completion of the general English course in December 2019. The applicant said he was not enrolled due to the visa cancellation. The Tribunal reminded the applicant that the visa was cancelled in February 2020 and that the NOICC was issued on 15 January 2020, so the non-enrolment occurred prior to that time, which means that there is evidence that he did not comply with condition 8202.
On the evidence, the Tribunal finds that the applicant breached condition 8202.
The Tribunal gives weight to this consideration in favour of cancellation.
·Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant is now 25 years old. He is married and his wife is in Nepal. He has no close family in Australia. He applied for the student visa as an adult, aged around 21 years. He attempted to sponsor his wife to Australia, but the application was refused. As mentioned in the delegate’s decision record, the applicant declared that he had not visited other countries in the past 10 years, so it is difficult to accept his contention that he does not know his way around Nepal.
The applicant advised the Tribunal that he is currently working, and he was not sure if he had permission to work. The applicant has claimed he does not have a minimum degree to get a job in Nepal and that his family has warned him that if he does not step up, that is it.
The Tribunal asked the applicant about the diagnosis of depression. The applicant advised that he does not remember the name of the doctor who made the diagnosis but that the doctor worked at a clinic in Mayfield. He stated that the diagnosis was made around September or October 2019.
The Tribunal asked the applicant about any treatment he received in relation to the diagnosis and he stated that he took pills for about two months in 2019 and saw the doctor about three to four times, the last time being in 2019. He stated that as advised by the doctor, he has joined a group. He also attends Bible studies in Church. The Tribunal asked and the applicant confirmed that he is now well.
The Tribunal acknowledges that the cancellation of the applicant’s visa has the potential to cause the applicant further and/or worsening of mental health issues, and could result in hardship including psychological, financial, employment and emotional.
The Tribunal has carefully considered the degree of hardship and in the circumstances, the Tribunal gives some weight to this consideration in the applicant’s favour.
·Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances in which the cancellation arose were as a result of the applicant being convicted of several offences. As outlined above, the Tribunal takes the view that the offences are serious.
The applicant has acknowledged the seriousness of the offending although stating that none of the offences is violent. He noted that prior to the commission of the offences, he was never involved in any criminal activities and that the sentence he has received is at the lower end of the scale. He explained that at the time of the offences, he was living alone, he had no friends to support him during difficult times, all his family is in Nepal, his mother was suffering from cancer, and he was in desperate need for money. He indicated that he admitted to the offending when he was arrested, he knew that he had done the wrong thing by the victim who was his colleague and that he was not thinking about the consequences of his actions.
The applicant expressed shame and regrets for his actions. He claimed that he would not reoffend if allowed to stay and that he is now a different person who has the support of family and friends. He mentioned that he came to Australia to study and that he is a good student, with a primary goal to complete his studies in Australia. He further indicated that if forced to depart Australia, his depression and motivation would be impacted, and he may not be able to access medication. He claimed that in Nepal, he does not have a place to work and he does not know his way around, which is difficult to accept given that he lived most of his life in Nepal.
The applicant has pleaded guilty as charged. During the hearing, he reiterated his circumstances. He explained to the Tribunal that his mother has suffered from cancer, as well as COVID-19. He confirmed that both of his parents are now in good health. He stated that he did not intend to do any wrongdoing.
In accordance with s 359AA, the Tribunal discussed with the applicant information contained in the Facts Sheet including unlawfully using others’ credit card details to purchase an item for $442 as well as Uber Eats. The applicant confirmed that the $442 (not the $250 amount claimed by the applicant) was for the purchase of a watch. He said he refunded the money back. He said he just wants time, six months, to complete his Master’s degree.
As advised during the hearing, the Tribunal is of the view that the purchase of a watch and the use of Uber Eats are arguably not necessities, contrary to the applicant’s contention that he committed the offences because he was desperate.
The Tribunal has noted the applicant’s explanations. The Court’s finding is that the applicant had committed the offences with which he was charged. It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures, and are not for review by an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point…
Although there are explanations for the applicant’s conduct, the Tribunal is satisfied that the applicant’s behaviour was not beyond his control. Moreover, it is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings and conclusions. The Tribunal is of the view that it is reasonable to assume that the Court took all relevant matters into account.
The Tribunal gives this consideration significant weight in favour of cancellation.
·Past and present behaviour of the visa holder towards the Department
The applicant responded to the matters raised in the NOICC.
The Tribunal gives this aspect weight in favour of the applicant.
·Whether there would be consequential cancellations under s 140
There is no evidence of consequential cancellation under s 140.
The Tribunal gives this consideration neutral weight.
·Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. The applicant would also be impacted by s 48 of the Act, which means that he could face difficulties in applying for certain visas in Australia. He will also be subject to PIC 4013.
The Tribunal considers that, in the applicant’s case, potential detention, removal from Australia, the impacts of s 48 and the PIC 4013 bar are intended legislative consequences.
The Tribunal gives this consideration neutral weight.
·Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence before the Tribunal that in case of cancellation, there would be breach of Australia’s international obligations, including non-refoulement.
The Tribunal gives this aspect neutral weight.
·If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The student visa is not a permanent visa and it would have expired in August 2020. The Tribunal has dealt with the applicant’s circumstances under separate considerations.
·Any other relevant matters
There is an issue relating to the provision to the Tribunal of a bogus document. The letter of offer dated 23 March 2021 from SBTA refers to a course in General English to commence on “23 September 2019 until 15 November 2019”; it is not possible for a provider to now offer a course that took place from 23 September 2019 until 15 November 2019. The applicant has acknowledged that the letter does contain incorrect information and he provided explanations as outlined above. The Tribunal has serious doubts that the applicant did not know that the details in the letter are incorrect and found his explanations unconvincing.
The terms ‘bogus document’ and ‘information that is false or misleading’ are used in the Act and the Regulations in the contexts of being criteria for the grant of a range of visas, as well as the basis for cancellation of visas under ss 109 and 116 of the Act. The phrase ‘bogus document’ is defined in s 5(1) of the Act.[1] Under s 5(1), a bogus document is one that the Minister reasonably suspects:
·purports to have been, but was not, issued in respect of the person; or
·is counterfeit or has been altered by a person who does not have authority to do so; or
·was obtained because of a false or misleading statement, whether made knowingly.[2]
[1] Section 5(1) as amended by Migration Amendment (Protection and Other Measures) Act2015 (Cth) (No 35 of 2015). Section 97 was repealed by that Act from 18 April 2015 and replaced by the identical definition in s 5(1).
[2] In AIB16 v MIBP [2017] FCAFC 163.
What amounts to a ‘bogus document’ is a question of fact for the Tribunal to determine.[3] The relevant test is whether the Tribunal reasonably suspects the document is a document that falls within one of the three limbs as set out above, not whether one or more of the three limbs is satisfied as a matter of fact.[4] A reasonable suspicion in this context requires objective circumstances upon which the reasonable suspicion of the decision-maker is founded.[5]
[3] Palikhe v MIBP [2014] FCCA 1875 at [30]–[32] and [37]–[40].
[4] See for example Sun v MIBP [2015] FCCA 2479 at [45] where the Court stated that the primary issue in terms of a person’s authority to alter documents under paragraph (b) of the definition of ‘bogus document’ is whether the decision maker reasonably suspects there was a lack of authority, not whether that authority was lacking as a matter of fact.
[5] Sun v MIBP [2016] FCAFC 52 at [86], citing George v Rockett (1990) 170 CLR 104 at 115–116, see also Logan J at [21]; cf Rani v MIBP [2015] FCCA 455 at [18], stating the evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend, applying George v Rockett (1990) 170 CLR 104 at 112–113.
On the evidence, the Tribunal is satisfied that the applicant gave to the Tribunal a bogus document, namely the letter of offer dated 23 March 2021 from SBTA, in that it is counterfeit or has been altered by a person who does not have authority to do so. The Tribunal gives this aspect significant weight in favour of cancellation.
CONCLUDING REMARKS
The Tribunal has carefully considered the material before it independently and cumulatively. The Tribunal appreciates that the task of the exercise of discretion is not a numerical and/or formulaic process but rather a balancing consideration of all relevant aspects, the balance of which in this case weighs in the favour of cancellation. The Tribunal is satisfied that those considerations favourable to cancellation outweigh those in favour of the applicant.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Antoinette Younes

Senior Member