Anttal (Migration)

Anttal (Migration) [2023] AATA 3228 (14 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurbinder Anttal
REPRESENTATIVE:  Mr Navneet Singh (MARN: 1573935)
CASE NUMBER:  2209476
HOME AFFAIRS REFERENCE(S):          BCC2022/380194
MEMBER:Rachel Westaway
DATE:14 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 August 2023 at 5:44pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-appearance before the Tribunal – ground for cancellation – incorrect information in previous visa application – previous identity – known by another name – previously refused an application for a Partner visa – consideration of discretion – grant of visa based on incorrect information – circumstances in which the non-compliance occurred – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 362B
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 June 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with section 101(b) of the Migration Act 1958 (the Act). 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 was represented in relation to the review.
On 24 July 2023 the Tribunal sent the applicant an Invitation to Attend a Hearing letter (by email) to his authorised recipient and Migration Representative which advised that a hearing had been listed for 14 August 2023 at 2.00 pm (VIC time). The Invitation informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The Invitation advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The Invitation also requested the applicant provide all documents on which he intended to rely to support his case by 7 August 2023.
The applicant did not respond to the Invitation to Attend a Hearing.
The applicant did not respond to the letter dated 24 July 2023 and did not provide any documents by 7 August 2023 or at any time prior to the scheduled hearing.
On 7 August 2023 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review. There is no evidence to suggest that the applicant did not receive this message.
On 11 August 2023 the Tribunal sent the applicant a further SMS hearing reminder to the phone number provided in the Application for review. There is nothing before the Tribunal to suggest that this message was not received.
The applicant failed to appear at the hearing with his representative and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.
The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, 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.
Background
The applicant is a 28-year-old male from India.
The applicant was granted a TU-500 visa on 19 August 2021.
Tribunal Application
The applicant lodged their application for review on 29 June 2022. They provided the Department of Home Affairs decision record and notification letter, Indian Passport along with their application for review.
Department Decision
On 21 June 2022 the Department notified the applicant that his visa was being cancelled.
The Department found that the correct information was that the applicant was known by another name, being Vishvjeet.
On 19 May 2017, Vishvjeet had his combined application for a Partner (subclass 820/subclass 801) refused as the Partner delegate was not satisfied he met the definition of spouse or de facto partner under section 5For 5CB of the Act and therefore he did not meet the relevant criteria at time of decision. Vishvjeet lodged a review of the refusal decision with the AAT who affirmed the Department’s decision on 07 September 2018. On 09 October 2018, Vishvjeet departed Australia.
Once overseas the applicant changed his name and acquired a new Indian passport. On 23 December 2021 the applicant arrived in Australia as the holder of a Student under his current identity, Gurbinder ANTTAL.
The Department found that the applicant intentionally utilised an alias, acquired a new travel document and provided incorrect information in his Student visa application.
The Department therefore found that the applicant had provided an incorrect answer in his application for a Student visa, specifically in relation to his previous identity.
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 101(b) of the Migration Act 1958 in respect to the following:
On 10 August 2021, the visa holder lodged an application for a Student (subclass 500) visa. At page two of the electronic visa application, the form asked, “Enter the following details as they appear in the applicant's personal passport.” The visa holder provided the following answers in response to the question:
Family name: Anttal
Given names: Gurbinder
Sex: Male
Date of birth: 09 January 1995
Passport number: U1991048
Country of passport: India
Nationality of passport holder: India
Date of issue: 29 November 2019
Date of expiry: 29 November 2029
Place of Issue: Chandigarh
At page three of the electronic visa application, the form asked, “Is this applicant currently, or have they ever been known by any other names?” The visa holder answered “No” to this question.
On page nine of the electronic visa application, the form asked “Has the applicant, or any person included in this application, held or currently hold a visa to Australia or any other country?” The visa holder answered “No” to this question.
On page 10 of the electronic visa application, the form asked, “Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?” In which the visa holder answered by stating “No”.
On page 13 of the electronic visa application under the heading “Declarations,” the visa holder provided the following answers in response to each declaration:
Warning: Giving false or misleading information is a serious offence.
The applicants declare that they: Have read and understood the information provided to them in this application. Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. Yes
On 13 May 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.
On 5 June 2022 the applicant’s representative responded to the NOICC.
The applicant provided the following reasons to the Department as to why the visa should not be cancelled:
·     The applicant’s overseas agent is responsible for providing the incorrect information on his Student application.
·     The applicant stated he changed his name due to safety reasons;
·     The applicant stated he had to leave India because his life was in danger;
·     The applicant stated he came to Australia because he had previously lived here and felt safe and secure here;
·     The applicant refers to comments made in the Administrative Appeals Tribunal (AAT) decision, BOY19 v Minister for Immigration and Border Protection specifically: “The moral deficiency (if any) associated with a lie that is told by a person believing that the lie is necessary in order to save the person from abhorrent and unjustified threats to their safety is entirely different to the moral deficiency associated with a lie that is told for the purposes of personal enrichment.”.
·     The applicant stated that if his visa is cancelled, he will have no choice but to leave Australia which will compromise his safety;
·     The applicant maintained that if his visa is cancelled it will have an adverse effect on him and his family; and
·     The applicant stated he has complied with his visa conditions and never overstayed his visa.
On 7 February 2022, a Departmental Forensic Facial Image Examiner undertook a facial comparison check between an image the visa holder provided to the Department in association with his Student visa application, and a photograph of another person named Vishvjeet (born 18 November 1994). The Forensic Facial Image Examiner was of the opinion the persons depicted in these images represent the same individual. The information before the Tribunal and contained in the delegate’s decision provided by the applicant states that Vishvjeet, born 18 November 1994 had, on the 19 May 2017, had his combined application for a Partner (subclass 820/subclass 801) refused as the Partner delegate was not satisfied he met the definition of spouse or de facto partner under section 5F or 5CB of the Act and therefore he did not meet the relevant criteria at time of decision. The Migration Review Tribunal (MRT) affirmed the Department’s decision on 7 September 2018 and he departed Australia on 9 October 2018.
Based on the applicant’s concession that incorrect information was provided through his overseas agent and he confirmed that he changed his name the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response to the s 107 notice and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations).
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadji (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has taken into consideration reg 2.41 prescribed circumstances as well as any other relevant facts and matters, including the applicant’s responses to the s 107 notice when considering the discretion.
Prescribed circumstances
The correct information
The Tribunal finds that the correct information at the time of application was that the applicant had been known by another name (Vishvjeet, date of birth 18 November 1994) that he had previously held a visa to Australia and that he had previously had a partner visa application refused. This finding is based on the facial recognition information provided by the Department and the applicant’s confirmation that he had changed his name. The Department had previously refused an application for a subclass 820/801 visa under the name of Vishvjeet, date of birth 18 November 1994. This is an onshore visa application and as such the applicant would have had to have held a visa to Australia in order to apply for this visa.
The correct information was not provided. This is a significant issue which weighs in favour of cancellation.
The content of the genuine document (if any)
This is not relevant in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information
The applicant must meet Public Interest Criterion (PIC) 4020 in order to be granted a student visa. This requires the applicant to have not provided false information or a bogus document in a material particular, in relation to the visa application. PIC 4020 states in part:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
Regulation 500.212, states
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history;
Based on the answers provided in the Student visa application, the delegate assessed the visa holder as having met regulation 500.212 and PIC 4020.
The Tribunal finds that the applicant was granted the Student visa based partly on the incorrect information in his application without the benefit of knowledge pertaining to his previous identity and immigration history.
This is a significant issue which weighs in favour of cancellation.
The circumstances in which the non-compliance occurred
The applicant’s contention is that he was concerned for his safety in India and his life was in danger and he needed to change his name and leave. No supporting evidence regarding the applicant’s safety concerns was provided.
The applicant also contended that his overseas agent is responsible for providing incorrect information.
The Tribunal has no information before it to consider the applicant’s safety concerns in India and also notes that it is the applicant’s responsibility to ensure all information in his application is correct. Further, if the applicant had concerns pertaining to his safety he had the ability to apply for protection and there is nothing before the Tribunal to indicate he has. It shows a blatant disregard for Australian immigration laws and the Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.
The present circumstances of the visa holder
The applicant stated to the Department that if the visa is cancelled it will have an adverse effect on him and his family. The applicant did not elaborate.
The applicant has been in Australia since 23 December 2021 however no information has been provided regarding ties to the community.
Further, as outlined in the Delegate’s decision record provided to the Tribunal by the applicant, he has completed his course of study early on 26 April 2022 and as such the purpose of the visa is no longer relevant.
As the applicant failed to attend the hearing the Tribunal has no information regarding his present circumstances such as employment, any relationships he has in Australia or his financial situation. Accordingly, the Tribunal gives this factor no weight in favour of its discretion to cancel the visa or in favour against cancellation of the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal notes that the applicant responded to the NOICC in a timely manner. However, he has not responded to the Tribunal in spite of having a Migration Representative who has also received correspondence from the Tribunal on his behalf.
The applicant had every opportunity to notify the Department prior to or after the grant of his visa of the incorrect information and did not do so until he received the NOICC.
The Tribunal gives this consideration a little weight in favour of cancelling the visa..
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal notes the delegate's finding that there was no evidence of any other non-compliance by the applicant known to the Department. The Tribunal accepts that there have been no other known instances of non-compliance by the visa holder and gives this factor some weight in favour of its discretion to not cancel the visa.
The time that has elapsed since the non-compliance
The Tribunal accepts that it is now approximately 2 years since the applicant applied for his Student visa on 10 August 2021. The Tribunal considers that this a reasonable period of time but not significant . It accords this factor a little weight in favour of not cancelling his visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal showing the applicant has been convicted of any other breaches of the law or sanctions imposed.
The Tribunal gives this some weight in favour of it not exercising its discretion to cancel the visa.
Any contribution made by the holder to the community
There is no evidence before the Tribunal showing the applicant has made any contribution to the community.
The Tribunal gives this factor no weight for or against cancelling the visa.
Other considerations
As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109.
Whether there would be consequential cancellations under s 140
The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled. Accordingly, the Tribunal gives this factor no weight in favour of its discretion to cancel the visa or in favour against cancellation of the visa.
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

If the applicant’s visa is cancelled, he will be an unlawful non-citizen and liable for detention under s 189 of the Act and removal under s 198 of the Act. Under s 197C of the Act, for the purposes of removal under s 198 it is irrelevant whether Australia has non-refoulement obligations or whether there has been an assessment of Australia’s non-refoulement obligations.
The applicant may be subject to s 48 of the Act preventing him from applying for further visas, he may not be permitted to work if granted a temporary visa for a specified period and he may be held in immigration detention.
Whilst these are all serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation.
Whether any 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 applicant is a citizen of India and has made no claim for a protection visa however he has stated that his life is in danger in India. He has provided no details regarding these claims and has not lodged a protection visa application since his arrival. As the applicant did not attend the hearing, the Tribunal is unable to ascertain these claims. As such there is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations. There is no suggestion that the interests of any children in Australia may be adversely affected by the visa cancellation.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
In his response to the NOICC the applicant referred to the adverse effect of a cancellation of the visa on him and his family. As noted, the applicant did not attend the hearing and providing no further evidence to the Tribunal. The Tribunal accepts that a visa cancellation would cause emotional hardship and there may be a likely separation of the applicant from any friends he may have in Australia. However, the Tribunal also notes that the applicant has completed his study early which was the purpose of his student visa and as such the reasons for remaining in Australia are no longer present.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101(b) of the Act.
The Tribunal acknowledges that 2 years have passed since the non-compliance. The Tribunal accepts that at the time of the delegate’s decision there been no other known instances of non-compliance. The Tribunal accepts that there are no other known breaches of the law. These are factors that suggest that the visa should not be cancelled.
Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was made without the correct information because the applicant knowingly provided incorrect information in his visa application in order to remain in Australia.
As the applicant failed to attend the hearing the Tribunal is not aware of any contribution to the community he may have made since the delegate’s decision.
There are no consequential cancellations. The Tribunal accepts that if the applicant’s visa is cancelled, and unless he is granted another visa, he may be subject to detention, although he may be eligible to apply for other visas.
The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation whilst acknowledging the applicant has expressed a concern regarding his safety should he return to India, there has been no evidence presented to support this.
As the applicant failed to attend the hearing the Tribunal is not aware of any hardship that may be caused to the applicant if the visa is cancelled.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Rachel Westaway
Senior Member

[2023] AATA 3228

14 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice