Bal (Migration)

Bal (Migration) [2019] AATA 6101 (16 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Preetpal Gurucharansingh Bal
CASE NUMBER:  1906862
HOME AFFAIRS REFERENCE(S):          BCC2018/5672248
MEMBER:Genevieve Cleary
DATE:16 September 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 September 2019 at 9:55pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – Advanced Diploma of Leadership and Management – not enrolled in registered course – enrolment cancelled – family violence – marriage breakdown – emotional issues – issues with university documents – issues with agent – lack of incentives to remain in Australia – circumstances beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362A, 359AA
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The visa was granted on 16 July 2018. The delegate cancelled the visa on the basis that the applicant has not been enrolled in a registered course since 24 September 2018. The issue in the present case is whether that ground for cancelation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 1 July 2019 and 26 August 2019 to give evidence and present arguments.
The applicant was represented in relation to the hearing in July 2019 by her registered migration agent, however, by the time of the resumed hearing in August 2019 the applicant was not so represented.
The course of the 2 hearings and the documents provided
Prior to the hearing on 1 July 2019 the applicant provided to the Tribunal:
·The decision record of the delegate of the Department.
On the morning of the hearing on 1 July 2019 the applicant provided to the Tribunal:
·A letter of offer from Global College Australasia dated 26.6.19 for an Advanced Diploma of Leadership and Management with an associated Confirmation of Enrolment.
During the hearing, the applicant provided to the Tribunal:
·A copy of an email dated 23 August 2018 from Murdoch University to the applicant.
On 26 June 2019 the applicant requested copies of written material relevant to her visa application and review pursuant to s362A of the Act. The applicant had not received that material prior to the 1 July hearing. At the start of the 1 July hearing the applicant was asked whether she would like an adjournment prior to her giving evidence so that she could await the outcome of her request. Through her representative she said that she did not, however if, after she had given her evidence, she felt that she needed that material to complete her submissions, she would seek an adjournment then. On that basis the hearing commenced.
It became clear in that hearing that a real issue was whether the applicant had presented forged documents to Murdoch University, and that she had not attended a meeting at the University as requested by the University, without excuse. It was my view that each of these factors would weigh heavily against her in considering my discretion. As a result, the hearing was adjourned, and the applicant was asked to provide to the Tribunal, if she could:
a.All of the email chains with Brenda Lee of Murdoch University or any other officer of Murdoch University concerning the allegations made by the University and the arrangements made to attend any meeting with them to discuss those allegations, the relevant dates being from 10 August 2018 to 26 August 2018;
b.Any documents she had received relating to the MBA course she commenced at Murdoch University;
c.Online verification of the Bachelor of Business Administration enrolment at Punjab Technical University, with either a link or screen shot;
d.A copy of the Bachelor of Business certificate or degree.
The above listed material was to be provided to the Tribunal within 14 days after the applicant received the materials she had requested pursuant to s362A of the Act.
The applicant offered to supply an updated Certificate of Enrolment with a future date, however I said that would not be necessary. I accepted that she was prepared to enrol in a course and had the intention to study, and I would take that into account in her favour when weighing my discretion.
The Tribunal received from the applicant on 22 July 2019, and within time:
·Emails between her and the International Admissions Officer’s office, Murdoch University, dated:
o16.8.19 (4.50 pm –applicant to the University)
o16.8.19 (5.04pm – University to the applicant)
o23.8.18 (5.01pm – University to the applicant)
o24.8.18 (Discussion thread from the University confirming cancelation of enrolment);
·Character certificate from I.K. Gujral Punjab Technical University Jalandhar (PTU) dated 26.11.18;
·Migration certificate from I.K. Gujral Punjab Technical University Jalandhar dated 20.11.17 which appears to have a “PTU” watermark;
·Bachelor of Business Administration from I.K. Gujral Punjab Technical University Kapurthala dated 11.6.18, saying that the Bachelor was awarded to the applicant after passing examinations in May 2017 with a “PTU” watermark and an orange “PTU” border;
·Results/cum detailed marks cards from I.K. Gujral Punjab Technical University Jalandhar and Punjab Technical University dated 14.4.15, 17.8.15, 11.4.16, 17.8.16, 10.4.17 and 21.8.17;
·Confirmation of an Uber ride to the University on 17.8.18.
The Tribunal also made enquiries of Murdoch University, and received from Murdoch University on 1 August 2019:
·A copy of an email dated 10.8.18 from Murdoch University, Perth, to Arjun Singh, Business Development Manager (South Asia) enclosing “mark sheets”.
·     A copy of an email dated 10.8.18 from Arjun Singh, Business Development Manager (South Asia) to “Student’s section” at ctgroup, India, requesting verification of a “degree certificate”.
·     A copy of a response to the above email, 10 minutes later, from ‘ctgroup, India’ saying that the documents relied upon by the applicant in her application to Murdoch University were fake, and “No such student with registration no. exists in the said college. Even, course mentioned (BBA) is not being run the said college.”
·     A copy of an email from Arjun Singh to Brenda Lee at Murdoch University dated 14.8.18 attaching the correspondence from ‘ctgroup.’
·     An explanation to the Tribunal of why they rejected the applicant’s documents in 2018:
o The border of the award certificate was inconsistent
o The background print of the certificate was inconsistent
o The font, and naming order was inconsistent
o The signatures of the Registrar, Vice-Chancellor and Chancellor were inconsistent
o In addition, her Class XII certificate provided as part of her application was questionable as well, however the University did not proceed further to contact the Education Board regarding that document.
·     A description of the course of emails between the University and the applicant in August 2018, as:
o On the 14 August 2018, the first correspondence was sent to Ms Bal drawing to her attention the anomalies we identified in her documents, and was provided 3 working days to come forward to explain/discuss.
o Ms Bal responded to that communication on the same day asking where to meet
o An agreement was then made for her to attend a meeting on the 15 August at the Student Centre however Ms Bal did not attend, following which another email was sent on the 15^th querying her non-attendance.
o On the 16 August, Ms Bal responded claiming her documents were genuine. A response to Ms Bal was provided on the same day giving her another opportunity to meet on the 17 August.
o The first meeting took place on the 17^th, where details of her academic transcripts were discussed.
14.      A hearing took place in the Tribunal on 26 August 2019. At the conclusion of the hearing the applicant was given more time to provide a number of documents that she wished to provide, including documents that the Tribunal had requested on 1 July 2019, but that she had not supplied. The applicant provided to the Tribunal, within time:
a.A ‘statement in support’ in the form of an email from the applicant dated 27.6.19 (despite the date, the Tribunal has not previously been given this document);
b.Statements also dated 27.6.19 purporting to be from witnesses:
i.Balwinder Kaur, and
ii.Lovedeep Singh (despite the date, the Tribunal has not previously been given these documents);
c.An acceptance of offer form signed on 28 June 2019 from Global College Australasia (the Tribunal has already been given this document);
d.A conformation of offer letter from Murdoch University dated 27.3.18;
e.A confirmation of enrolment 9A6A1430 for the Master of Business Administration at Murdoch University;
f.Photo which is inscribed “My husband got married to someone else without divorce” and social media messages;
g.A document entitled “Summary of Account as on 1-10-2018’, inscribed with “Proof my dad gave cash to Indian agent For getting admission” and “After Murdoch cancelled admission” and the same document a second time inscribed “Bank statement – (My dad transferred money to Indian Agent for my visa), with a second page;
h.A photo of a similar document as the one above;
i.Emails inscribed “Proof I attended my classes”;
j.Emails from Murdoch University:
i.one undated, which is an email form Brenda Lee informing the applicant that her enrolment had been cancelled. Despite the fact that it is hand inscribed “asked for a meeting” the email does not ask the applicant for a meeting, but does refer to the meeting they had,
ii.one which is the same as the first however shows the date of 23.8.18 (the Tribunal already has this email, and has already discussed it at length with the applicant), inscribed “First email from Murdoch” which is not correct, given the date,
iii.one dated 16.8.18 hand inscribed “For meeting” (the Tribunal already has this email, and had already discussed it at length with the applicant),
iv.one undated, telling her her enrolment has been cancelled (the Tribunal already has this email, and has already discussed it at length with the applicant).
k.A copy of a discussion thread between Murdoch University and the applicant, although only showing one message which confirms that her enrolment was cancelled, dated 24.8.18 (already previously provided by the applicant to the Tribunal);
l.A copy of the Bachelor of Business Administration from I.K. Gujral Punjab Technical University Kapurthala dated 11.6.18, saying that the Bachelor was awarded to the applicant after passing examinations in May 2017 with a “PTU” watermark and an orange “PTU” border (the Tribunal already has this document, and has already discussed it at length with the applicant),
m.A document entitled “My statement” explaining that the applicant does not in fact have the original of the above document, despite her saying that she did at the second hearing, because her husband took all her documents when he left her;
n.An almost illegible screen shot of a ‘Results cum detailed Marks Card’ from Punjab Technical University in her name dated 14.4.15, showing, at the top of the document, the web address “ptuexam.com,” the significance of this being a screen shot is to show that it came from the PTU online portal;
o.A screen shot of air tickets inscribed “Ticket my husband went back’.
15.      In relation to the above list, I note that neither the University nor the applicant have provided the Tribunal with:
·The email sent to the applicant on the 14 August 2018;
·The response from the applicant, asking where to meet;
·The email arranging the time to meet on 15 August;
·The 15 August 2018 email querying her non-attendance on 15 August.
This is despite the Tribunal requesting the applicant provide to the Tribunal all the emails between her and the University relating to the meetings that were arranged and the cancelation.
16.     The Tribunal has also had regard to the Department file.
17.      For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
18. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
19.Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
20.      In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The visa was cancelled on 28 September 2018. At the hearing on 1 July 2019 the applicant agreed that her enrolment had been cancelled on that date, and that she had not re-enrolled.
21.      On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
22.      Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 cancelation powers.’
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
23.     The applicant was married on 25 July 2017, and she and her husband came to Australia on 27 July 2018. They stayed in her husband’s friend’s home after they arrived. She came to complete her Masters of Business Administration and he came to work, on her visa. She was enrolled in a Masters of Business Administration at Murdoch University. After completion of this course the applicant intended to return to India to assist her father, who is a mechanical sub contractor. He works on large civil works. After completing her MBA she wanted to manage his business, “guiding him on making a profit in relation to management.” This included assisting him with accounting and whatever it took to make a profit. She believed she could manage his labourers - he has 370 people working for him, but it fluctuates depending on available work.
24.     When asked, she reiterated that that was all she was going to study, and once she completed the MBA she would return and ‘continue’ in her father’s business. Despite originally enrolling in the MBA, the applicant is now provisionally enrolled in an Advanced Diploma of Leadership and Management. The applicant explained that this was because a provider would not register her at the masters level without a valid visa. She said that if the cancelation is set aside she will nevertheless complete the Advanced Diploma and then start the MBA. She feels the Advanced Diploma course will help her because it covers some subjects that the MBA does not, and that will benefit her future. Her father will pay the fees for the Advanced Diploma. The Tribunal accepts that the applicant has a desire to study and there should be some weight given to that factor, even though she is now enrolled in a course which she did not appear to have any intention to study when she arrived.
25.     At first the applicant said that she had had some experience in her father’s business before she left for Australia, however she later clarified that that had generally been at home talking about it. At the moment her brother and uncle assist him, taking care of the management side. The applicant has at least some need to return to India after she completes her studies, and I give this consideration a little weight in her favour.
26.     After completing high school the applicant said she completed her Bachelor of Business Administration at IK Gujral at Punjab Technical University, India.   This course commenced in November 2014. The university was 2km from a hostel in which she lived, 50km from her grandparents and around 1600 km from her home town.   The course ended in May 2017. It was a full time course. She did not work at that time. The course cost approximately 35-40,000 Rupees per semester. Her father paid the fees.
27.     After she completed her course she returned to her home town for 1 and a half months. She then got married.
28.     It was an arranged marriage. Her husband had just finished his MBA when they married and worked in a bank. He was in Punjab. Once married she lived with him there. They both planned to come to Australia. While at first the applicant said that they thought it would be a good option for them to further their studies in Australia but then return and work with her father, she then clarified that her husband did not come to Australia to actually study, he came just to support her.
29.     The Bachelor of Business Administration she completed in India covered marketing and business, organisation behaviour, HR, computing, management, business ethics, advanced computing, Business Law I and II and risk management. Her intention in coming to Australia was to further her studies in that area. The course should have finished in 2020.
30.     The applicant is now not in a relationship in Australia, and other than some friends, does not appear to have anything creating an incentive to remain here once her studies are completed. She has only worked for one month, as a cleaner. I give this consideration a little weight in her favour.
31.     There is no evidence of a compelling need for the applicant to travel to or remain in Australia other than to study, although neither is there an overly compelling need for her to return to India. weighing those competing factors, the Tribunal gives them some weight in her favour.
Circumstances in which ground of cancelation arose. If cancelation 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 cancelation arose were beyond the visa holder’s control
The applicant’s marriage
32.     Before the applicant and her husband came to Australia she and her husband had some difficulties. She thought that their move to Australia may assist them. However, in July 2018, very soon after they arrived, she found out that he was being unfaithful through text messages. He was already controlling, she said, and did not allow her to go out. She confronted him over the woman he was texting, and he denied any wrongdoing. She later checked his telephone and social media and saw that he was speaking to another female. She spoke to her parents and in-laws. Her in-laws refused to believe that their son would do such things, but her parents believed her. After hearing that she had contacted their relatives the applicant said her husband slapped her twice and pushed her against a wall. He was angry and threatened her. In her letter to the Tribunal dated 27 June 2019, but only provided on 2 September 2019, the applicant says that her husband forced her to do other things that she did not wish to do, and she was eventually broken and suffering. He returned to India on 6 August 2018 and said that he would not support her and threatened her.
33.     His threats were simply that something bad would happen to her, and that her parents may die. She said that he is connected to politicians’ families, and she believed that he could make such things happen.
34.     When they arrived, the couple stayed with friends of the applicant, however once he left the friends told her to leave; the applicant believes that this was because her husband told them to make her leave. A friend she had made at the University allowed her to stay with her.
35.     The discovery that her husband was being unfaithful over text, his leaving and her being homeless caused her trauma, and she did not sit her upcoming exams, although she did continue to go to her classes. However, in August 2018 she received an email from the university advising her that there was a problem with her enrolment documents. The applicant strongly suspects that her husband has meddled in her relationship with the University.
36.     She said that after she had spoken to Murdoch University and was aware of their issues with her documents she contacted her agent in India (the same agent she had used to come to Australia) and he said not to worry, he would obtain a new Confirmation of Enrolment. She asked her father to pay another $10,000 for this, which he did. After 2 months the Confirmation had not come, and the agent eventually told her that she had to wait. She also then found out that he was being influenced by her husband. She found this out because some time later her parents told her that they had seen her husband talking to the agent. Despite the fact that she used that agent to come to Australia, she did not ask him what was wrong with her documents, or how it could be that Murdoch were questioning her degree.
37.     While she was dealing with the issue about her documents she then received a message on social media telling her that her husband had married someone else. She says that she then became very depressed, and found it difficult to deal with what was happening. The applicant had thought of returning home once her enrolment was cancelled, however she wanted to complete her degree; she wanted to stay and “prove herself.” After he left she worked for one month at a cleaning job, however at that stage she was not feeling well enough to work, so she quit. Her family and friends have been supporting her.
38.     She has continued to deal with the Indian agent, and he has never provided her with a Confirmation of Enrolment, and he has not returned her money, despite her asking. She is communicating with him by telephone so has no record of their communications.
The documents and the applicant’s dealings with the University
39.     The Tribunal asked the applicant whether she had any documents from the original degree she obtained in India. She said she did, but she did not have them “right now.” Her representative thought that they should be on ‘the file’ but that if not, he could send them to the Tribunal.   The Tribunal clarified that there were none on the Tribunal or Department file, and the only documents relating to her enrolment was the prospective enrolment for Global College Australasia.   Given the applicant was aware that the cancelation came about because of a question over her documents, it concerned the Tribunal that the applicant had not brought the documents with her or ensured that the Tribunal had them.
40.     In accordance with the procedures set out in s359AAof the Act, at the August hearing I told the applicant that the Department file showed that the Department contacted Murdoch University in February 2019 about her enrolment, and that the University set out a list of dates for the Department. I told the applicant that if the information relating to the fraudulent documents and enrolment was true, then it was information that would be part of the reason for affirming the delegate’s decision to cancel. It was clear by this stage of the hearing that it was most likely that another adjournment or at least time to provide more documents and further submissions would be required in any event. I told her that the dates and actions listed on the Department file suggested that:
a.On 10 August 2018, Brenda Lee, the manager for international admissions, sent an email with the applicant’s documents to Murdoch University’s offshore agent asking him to verify her enrolment with the University in India;
b.On 14 August 2018 the agent responded saying that the Indian University had confirmed that the documents were fraudulent, they did not have her registered as a student and that her University did not offer the Bachelor of Business Administration;
c.On 14 August, Brenda Lee contacted the applicant and asked her to attend a meeting on 15 August, but that she did not attend;
d.On 15 August 2018 the University wrote to the applicant questioning why she did not attend, and that the student did not attend that meeting and then did not attend classes after that.
41.     The applicant agreed that she did not attend the meeting arranged for her for 15 August. She explained that she “took one day extra, because she was not sure” (about what she did not explain) but met them “the next day.” In fact she later agreed that it was not the next day, but the 17^th that she finally went to the University and spoke with Brenda Lee.
42.     She said that she went to the university and sat down with them. They told her that they had looked at her documents and that the documents were no good, and they could not find her degree.
43.     Central to the University’s decision to cancel the applicant’s enrolment was whether the documents presented by the applicant were fake, and, in support of their decision that they were, the University points to 3 factors:
a.That their impression of the documents was that they were irregular;
b.That their agent in India received information from the University that the documents are not from the Punjab Technical University and that there was no enrolment of a person by that name, and that course was not offered at that time, and
c.The applicant’s attempt at avoiding the issue by not attending an interview as arranged.
44.     As these questions are central to the decision to cancel the enrolment, and therefore directly lead to the decision of the Department to cancel the Student visa, the applicant was given more time to address each of these matters, as has been described above.
45.     After both hearings, and considering all the documents that have been provided, the Tribunal finds as follows:
The irregularities of the documents
46.     In accordance with the procedures set out in s359AAof the Act, the Tribunal read to the applicant the list of items the University was concerned with in relation to the documents provided by the applicant to them, that list being contained in the email to the Tribunal from Murdoch University dated 1.8.2019.
47.     I did not include in the list the final point in relation to the Class XII certificate, as I do not have that document, and it did not appear to influence the decision made by the University. I have therefore not given any weight to any suggestion that there may have been an irregularity in that document.
48.     I explained to the applicant that if I agreed with the list of irregularities, or found my own, I would come to the same conclusion as the University, that the documents may not be genuine, and that would be part of the reason that I would affirm the decision to cancel her Student visa. I identified the documents that I believed the University was referring to, and the applicant agreed they were the documents she had given to the University, namely the Bachelor of Business Administration certificate dated 11 June 2018 and the ‘Results cum Detailed Marks Cards’ identified above.
49.     The Tribunal asked the applicant whether she was made aware by the University of the list of concerns. She said she was not, and all they talked about at the meeting on 17 August was the subjects she undertook as part of the degree. It is noted that the email to the Tribunal from the University says that “details of her academic transcripts were discussed.” It is unclear whether this means that the all documents themselves were discussed, or whether it was just the information contained in the ‘transcripts’ which I would interpret as the course details and marks in the ‘Results cum Detailed Marks Cards.’ I therefore accept the applicant’s recollection that it was the subjects she undertook which were discussed rather than the specific concerning aspects of the veracity of the documents themselves, although it is clear from the emails between the applicant and the University that she was well aware that the veracity of the documents was in issue.
50.     Regarding the Bachelor of Business Administration certificate, the border on the copy on the Tribunal’s file is faded in certain parts, as is the watermark. I pointed this out to the applicant, and she was shown both a printed (black and white) copy, and the scanned copy on a computer screen in the hearing room.
51.     Regarding the remainder of the listed irregularities, the only document the Tribunal was provided with the registrar, vice-chancellor and chancellors’ signatures on them was the certificate, so a comparison to other documents, as the University undertook, was not possible. The University did not supply to the Tribunal copies of any comparative documents they referred to, where the same officer has purported to sign different documents, they appear, to the untrained eye, to be the same, and where each of the documents is signed by different officers, I have nothing to compare them with. I therefore cannot make a finding on whether there are any inconsistencies in signatures on any of the documents, and the Tribunal has no regard to such a suggestion.
52.     Similarly, the Tribunal cannot make comparisons in relation to any differences in font or naming order, and I therefore cannot make a finding on whether there are any inconsistencies in those items on any of the documents, and the Tribunal has no regard to such a suggestion.
53.     The Tribunal also put to the applicant a number of other issues relating to the documents:
a.All of the documents supplied by the applicant seem to variously refer to the Indian University as the ‘I.K. Gujral Punjab Technical University Jalandhar,’ the ‘I.K. Gujral Punjab Technical University Jalandhar formerly known as the Punjab Technical University,’ ‘the Punjab Technical University,’ and ‘IKGPTU.’
b.The ‘Migration Certificate’ supplied by the applicant is dated 20.11.2017, and the ‘Bonafide-cum-Character Certificate’ is dated 26.11.2018, both dates being subsequent to the applicant’s completion of her course, and the latter being when she was already in Australia.
54.     The applicant explained:
a.The University is made up of a number of colleges, and then the examinations are handled by a separate examination board. The University changed its name in 2015, and so the certificates and other documentation is different from year to year. The Punjab Technical University (PTU) is part of the examination board group called the CTGroup, and each of the colleges and its administration has a different name and sometimes style.
b.She asked the University for the Bonafide-cum-Character Certificate after Murdoch University challenged her on the veracity of her documents, hence the later date.
c.Her husband took many of her original documents when he left. Many of the documents she supplied to the University and the Tribunal were downloaded from the PTU portal, rather than copied from the originals. The portal documents come out in PDF format and, depending on what they are, often do not have the full border or watermark.
d.In the 26 August hearing, that she only has one document of all of those she has sent to the Tribunal that is in its original form, that being the certificate awarding the Bachelor of Business Administration. She collected this directly from the Punjab Technical University. She did not think to bring that original to the Tribunal hearing, despite her agreeing that she was aware, from the July hearing, that the veracity of the documents was in issue. She also said that she had given the original to her representative, but kept one herself. Her agent no longer represents her.
e.The certificate looks different in its original form compared to the printed and electronic copies on the Tribunal file. She said that the border was a consistent colour in the original, as was the watermark.
55.     She agreed she would bring the original of the Degree certificate to the Tribunal within 7 days of the August hearing. She was also told that she may take the opportunity to provide any further documents or submissions on the documents, should she wish to say anything further about them.
56.     The applicant has not produced the original of the certificate, despite her telling the Tribunal she had it. The documents provided on 2 September contain another copy. Also in the 2 September documents is a document entitled “My statement.” In that the applicant says “As u asked mam to give original copy of certificate, I can’t provide you that because I don’t have original one as my husband took all certificates with him.” This is in direct contradiction to what she told the Tribunal at the 26 August hearing.
57.     There is one document, however, which does suggest that there is some sincerity in what the applicant told the Tribunal. On 2 September she provided a screen shot of her certificate on a phone.   It is significant because although it is barely readable, it appears to be a copy of one of the ‘Results cum Detailed Marks Card’ previously provided, on a portal whose internet address is ‘ptuexam.’ When one searches that address, you are taken to the entry page of a portal for the Punjab Technical University, now called the I.K. Gujral Punjab Technical University. Therefore, it appears that there is some evidence that she had, at some stage, access to a portal run by the Punjab Technical University, and the portal has documents on it that are in her name.
58.     At the August hearing the applicant confirmed that despite being asked, she had not sent to the Tribunal the original email from Murdoch University asking her to come to the meeting on 15 August.
The applicant’s dealings with Murdoch University
59.     As has been expressed above, at first, the applicant said that she waited a day, and missed the arranged meeting, on 15 August. She could not explain why she decided to wait, other than it appears that she was receiving advice from friends and an agent in India who took her family’s money and did not deliver what was promised. At the hearing on 26 August the applicant said that it was because she was perhaps ill when the first meeting had been arranged that she did not attend. The inconsistencies in the explanation, and the fact that, having been told that her whole study program was at stake, the applicant appears to have chosen not to attend that meeting, are troubling.
60.     However, the applicant did attend on the 17^th. Whatever occurred in the meeting between Ms Lee and the applicant, the University were ultimately not satisfied that the documents were genuine. The Tribunal does not have any details of what occurred in the meeting, and I cannot speculate. Neither am I bound by a decision made by the University.
The applicant’s explanations
61.     The applicant felt that her husband had contacts with the main administration group in her college, and that he knew a lot of people there. His schooling was in his village school, not close to her university. He did his MBA at BIS College in Punjab. He did not go to the same University as she did, so he does not have a connection from his attendance there. She has no evidence, but believes he is connected to politics and “could do anything there.” His grandfather and whole family are connected to politicians and his grandfather was the village leader and in the same party as the local ruling party. She believes that whoever the rulers are in his village they could talk to the college and give them money. Her husband has many friends, they are all politicians and they can do anything they want to do. She could not explain it further than that.
62.     She also said she believes her husband talked to the college and that he paid them money to say that she had never studied there.

A Notice of Intention to Consider Cancelation of the visa was sent to the applicant on 1 March 2019. The applicant did not respond or provide any material to the Department. The applicant told the Tribunal that she recalls getting the NOICC but her agent did not respond because she did not have a Confirmation of Enrolment. She wanted to tell them about what had happened to her but she was “totally depressed” and she did not have a doctor’s certificate, and she could not prove anything. Her agent in India told her that she would need medical certificates and a Confirmation of Enrolment. Even a friend told her to get the new Confirmation of Enrolment from her agent before she spoke to the Department, so she waited for her agent to send it to her, but it never came. In relation to the allegation of fraud, her friend told her “It was not the right time” to speak to the Department about it, and would not be until she had a new Confirmation of Enrolment.
64.     She did not attend the meeting organised for her on 15 August 2018 at the University. She did not respond to the NOICC. When requested to provide documents to the Tribunal, she provided some, but not others. These factors weigh against the Tribunal being satisfied that she is being forthright about how the reasons for the cancelation came about. However, also weighing heavily on my discretion is the question of whether the cancelation was as a result of something the applicant did, or was within her control. I have come to the conclusion that I cannot be satisfied that the reasons for the cancelation were within her control.
65.     I am not an expert in fraudulent documents. While I partly agree with the University that the documents do not appear to be professional and up to the standard one would expect of a university, the applicant explained that the documents are from an online portal, printed from a computer. The applicant also produced a ‘Character Certificate’ dated after the university cancelled her enrolment, which appears to verify that she did attend the Indian university, and graduate from there.
66.     While they appear to be poor copies, overall the documents are consistent in the signatures, bearing in mind that differently titled officers have signed different documents. The watermarks are not consistent between documents, however they are different types of documents, and I have no other originals of such documents with which I can compare the applicant’s.
67.     Therefore, I cannot be satisfied that the documents were fraudulent, despite Murdoch University’s agent telling them they were.
68.     Neither, however, do I accept the applicant’s explanation that her husband interfered with the registration records of the Indian university such that when the Australian university, an agency he had no control over, contacted their agent, another person he presumably had no control over, who then contacted someone in the university’s examination section, either her registration had been wiped, or the person providing the information in the examination section was lying. The applicant’s explanation that he was politically connected and most likely had friends and influence over the university was too vague to be a reliable explanation.
69.     It seems unlikely that the university would then find and acknowledge her registration when she asked for verification in November 2018, unless that document too is a forgery, as is the screen shot of her marks certificate on the online portal. As I am unable to be satisfied that those documents are forged, for the same reasons I am unable to find other documents are fraudulent, I am left with an absence of any possible finding other than that that verification document and the screen shot are genuine, and the applicant did complete her Bachelor of Business Administration at the Punjab Technical University, despite Murdoch University being told she did not.
70.     On that basis, I am satisfied that Murdoch University’s cancelation of the applicant’s enrolment was not in her control, whatever the reason was the agent was told that she had not been registered and that the course she said she had completed had not been offered at that time, and I give that significant weight in her favour.
71.     I acknowledge the applicant’s evidence of the manner in which her husband treated her. The applicant has not included her husband on her application for review, despite the fact that he arrived with her as a secondary visa holder. That provides some confirmation that they are no longer together. It does not appear that the applicant’s husband has applied for any other right to remain in Australia. That provides some confirmation that he has left her and returned to India. I accept what the applicant says about him being controlling and while I am not satisfied that I can accept that he interfered in the process of Murdoch University using its agent to check the applicant’s registration at PTU, I accept that his leaving, and what lead to it, must have been traumatic for the applicant such that once her enrolment was cancelled it would have been more difficult for her to regroup and organise her affairs. I am satisfied also, therefore, that the applicant suffered some form of abuse at the hands of her husband, although to what extent I cannot say.
72.     The applicant says that she suspected that her husband told Murdoch University that she had provided them with forged documents. Given that I am not satisfied that the documents provided were forged, it is open for the Tribunal to find that any such report may be an example of controlling or abusive behaviour, and also suggests that what lead to the cancelation was out of the applicant’s control. This weighs in her favour, and in favour of her being able to remain and study.
The extent of compliance with visa conditions
73.     The applicant told the Tribunal that she has not applied for any other visas either in Australia or for entry elsewhere. There is no other information before the Tribunal to suggest that the applicant has breached other conditions of her visa, or any other visa.
74.     The applicant was in breach of the condition requiring enrolment in a registered course. The breach commenced on 24 September 2018 until her visa was cancelled on 20 March 2019. The breach is of a relatively lengthy period, and therefore significant.
75.     The applicant told the Tribunal that she has worked briefly while in Australia and has worked 20 hours per week; there is nothing before the Tribunal to suggest otherwise, and I accept that she has, other than the lack of enrolment, complied with her visa conditions. Her compliance in relation to those conditions is in her favour. While I acknowledge that the breach of condition 8202(2) is significant, weighed with the reasons for the breach, the Tribunal finds that the breach is outweighed by those other factors.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
76.     The applicant’s father paid the fees for the MBA. Her father has also paid the fees for the Advanced Diploma, which she has provisionally enrolled in pending the outcome of this review.
77.     If the visa remains cancelled the applicant said she will have no future, because she has spent so much money. Without a degree she says her father cannot help her. With the degree she will have the language and skills to assist her father, and she believes it will bring money and profit to him. She told the Tribunal that in her view the masters will bring her a bright future; it will make her a senior manager, whereas with just the Bachelor degree she will merely be an accountant, a task which she says is not required by her father. Without the Australian qualification she would not be able to work in her father’s business.
78.     She has two friends in Australia but no relatives. She has not tied herself to the community in Australia, and is not in a relationship here. She will therefore not suffer any hardship regarding relationships if she leaves Australia.
79.     The Tribunal accepts that any visa cancelation would cause some stress to a student and her family. The Tribunal also accepts that the cancelation of a visa is disappointing and that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study. The Tribunal accepts that the cancelation may mean she cannot work in her father’s business, at least at the level everyone expects of her. The Tribunal gives these considerations a little weight towards the visa not being cancelled.
Past and present behaviour of the visa holder towards the department
80.     According to the Decision Record of the Department there was no evidence that the applicant had been uncooperative towards the Department. I give this some little weight in her favour. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.
81.     However, as has been stated elsewhere, she did not attend the meeting organised for her on 15 August 2018 at the University, with differing reasons as to why. She did not respond to the NOICC. When requested to provide documents to the Tribunal, she provided some, but not others, with differing reasons as to why.   While this behaviour is greater than just her behaviour towards the Department, her reticence to provide any agency with any information weighs against a finding that she is being forthright about what lead to the reasons for the cancelation. This factor weighs against her, and in favour of the visa being cancelled, although its effect is lessened in relation to her attitude towards Murdoch University by the fact that her husband had also just left her when they contacted her.
Whether there would be consequential cancelations under s.140
82.     Cancelation of the applicant’s visa will result in the applicant’s husband’s visa being cancelled. According to the applicant, they are no longer together, and the applicant has left Australia. Therefore, cancelation would not result in the separation of the applicant’s family unit and I give this consideration no weight.
Whether there are mandatory legal consequences, such as whether cancelation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancelation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
83.     If the current visa is cancelled, this will result in the following:
a. The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b. The applicant will have limited options to apply for further visas in Australia;
c. The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where she will not be eligible to have any temporary visa application approved if she applies for a visa that requires Public Interest Requirement 4013 to be met.
84.     I give little weight to this consideration in favour of the applicant because:
·       These are the intended consequences of the legislation when a visa is cancelled under these grounds;
·       It reflects the seriousness with which the Department takes this type of cancelation ground;
·       The applicant will be eligible to apply for a bridging visa while she makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that she does not co-operate in applying for a bridging visa.
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 cancelation
85.     The applicant said she had come here to study, and she would like to complete the Masters course before she returns to India. The applicant did not indicate any reason or fear of return to India for either her or her husband. I find there is no information to support that any international obligation would be breached and give this factor no weight.
86.     There are no children from her marriage.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
87.     This is not relevant and I give it no weight.
Any other relevant matters.
88.     I find that there are no other relevant matters to consider.
89.     Considering the circumstances as a whole, while there are a number of factors and considerations which weigh against the applicant, and in favour of her visa being cancelled, the fact that I cannot be satisfied that she forged the University documents, with the fact that I am satisfied that she was subjected to some form of at least control from her husband weigh most heavily on my discretion towards accepting that the reasons for the cancelation were beyond her control, and towards setting aside the decision under review. As a result the Tribunal concludes that the visa should not be cancelled.
DECISION
90.     The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Genevieve Cleary
Member
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder must be enrolled in a full-time course of study or training if the holder is:
(a)a Defence student; or
(b)a Foreign Affairs student; or
(c) a secondary exchange student.
(2)A holder not covered by subclause (1):
(a)must be enrolled in a full‑time registered course; and
(b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2019] AATA 6101

16 September 2019

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