Banipal Singh (Migration)

[2023] AATA 787

Banipal Singh (Migration) [2023] AATA 787 (2 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Banipal Singh

REPRESENTATIVE:  Mr Gurvinderjeet Singh Parmar (MARN: 1808842)

CASE NUMBER:  2205539

HOME AFFAIRS REFERENCE(S):          BCC2022/318289

MEMBER:Christine Kannis

DATE:2 April 2023

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 02 April 2023 at 9:45am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information and bogus documents provided in application – funding for stay – parents and grandparents supporting travel, tuition fees and living costs – father’s tax returns – verification checks showed no records exist – further documents, statements, submissions and access to father’s tax department portal provided to tribunal – re-verified by DFAT post – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 101(b), 103, 109(1), 359AA, 375A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant did not comply with s 101(b) and s 103 of the Act.  The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal by MS Teams video on 28 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review.

5. 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

6. 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.

7. 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.

8. 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. In making this determination the Tribunal notes that the Department sent the applicant an email advising that it needed to send him important correspondence about his Student (subclass 500) visa granted on 15 January 2021 and requested that he provide his current address and email address. On 9 March 2022, the applicant replied by email and provided his current address and email address. The s 107 notice dated 10 March 2022 was sent to the applicant at these addresses.

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

9. 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.

10. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) and s 103 of the Act in the following respects:

    Alleged non-compliance with s 101(b)

11. Section 101 provides that visa applications are to be correct, and paragraph (b) specifically requires that no incorrect answers are given or provided.

12. The non-compliance identified as non-compliance with section 101(b) was:  

    • In the section entitled Funding for Stay the applicant responded to questions as follows:

    Q: Do all applicants in this application confirm that they each have access to sufficient funds to support themselves for the total period of stay in Australia and understand that further evidence of funds may also be requested?

    A:        Yes

    Q: Show how each applicant included in the application will support themselves in Australia to meet living, tuition and school costs.

    A:        Other financial support

    Give details: THE APPLICANT'S PARENTS AND GRANDPARENTS ARE

    SUPPORTING FOR HIS TUITION FEES AND ALL LIVING COSTS.

    • In the section entitled Declarations the applicant responded Yes to the following statements (in part):

    Warning:  Giving false or misleading information is a serious offence.

    The applicants declare that they:

    Have provided complete and correct information in every detail on this form, and on any attachments to it.

    Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.

    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.

    Alleged non-compliance with s 103

13. Section 103 provides that bogus documents are not to be given. The phrase ‘bogus document’ is defined in s 5(1) of the Act.

14. A ‘bogus document’ is defined in s 5 of the Act as a document the Minister reasonably suspects is a document that:

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

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

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

15. In support of the application for the Student visa, the applicant submitted the following documents of his father’s (Jaspal Singh) finances as evidence of the claimed financial support:

    ·Indian Income Tax Return Acknowledgment for the Assessment Year 2020-21 for Jaspal Singh from Income Tax Department with e-filing Acknowledgement Number 732332290201120, submitted electronically on 20 November 2020 at 12:18:13.

    ·Indian Income Tax Return Verification Form for the Assessment Year 2019-20 for Jaspal Singh from Income Tax Department with e-filing Acknowledgement Number 778878500080819, submitted electronically on 08 August 2019 at 18:20:13.

16. On 25 January 2022, an integrity check was conducted by the Department’s New Delhi Post. Verification checks with the Income Tax Department in India revealed that no records exist for the e-filing acknowledgement numbers for years 2020-21 (732332290201120) and 2019-20 (778878500080819).

    Response to the s 107 notice

17. On 11 March 2022, the applicant responded to the s 107 notice and provided the following information:

    • Both Tax Return documents provided are valid and authentic Income tax returns which are reflected on website incometaxindia.gov.au
    • He provided his log in details for the e-filing portal of the Income Tax Department
    • His accountant can verify the genuineness of the documents

18. In his response to the s 107 notice, the applicant said there is no misleading or corrupt information. He said:  

    
    Under the Migration Act 1958, I declare that I have complied to all visa conditions,
    Hence, my visa should not be cancelled, as I am a genuine student and I have not provided any misleading or incorrect information to the Department of Home Affairs. The supporting evidence has been attached herein. My Accountant has also confirmed that the documents are genuine, For further information you can contact him at [phone].

19. When responding  to the s 107 notice, the applicant provided documents in support of his claims. The documents provided were:

    ·Indian Income Tax Return Acknowledgment for the Assessment Year 2020-21 for Jaspal Singh from Income Tax Department with e-filing Acknowledgement Number 732332290201120, submitted electronically on 20 November 2020 at 12:18:13.

    ·Indian Income Tax Return Verification Form for the Assessment Year 2019-20 for Jaspal Singh from Income Tax Department with e-filing Acknowledgement Number 778878500080819, submitted electronically on 08 August 2019 at 18:20:13.

    ·Intimation u/s 143(1) of the Income Tax Act, 1961 received from Income Tax Department, Government of India for Assessment  Year 2019-20

    ·Certified Copy of Government of India Unique Identification Identity Card of Jaspal Singh, Issued 03/11/2020 Number 8488 4907 0734 VID 9184 5382 1329 3516.

    ·Certified copy of Government of India Income Tax Department identity card of Jaspal Singh, Permanent Account Number CQDPS4631J

    ·Screenshot showing Income Tax Return Status “Processed with no demand/refund”, but with no identity details to which account this information belongs to.

    ·Screenshot View Filed Returns from Income Tax Department Government of India showing lodged returns for account Jaspal Singh

20. The delegate did not consider the additional documents provided by the applicant disproved  the non-compliance and gave more consideration to the information provided by New Delhi Post in relation to the documents provided with the visa application.

    Evidence provided prior to the hearing

21. The following documents were provided prior to the hearing:

    ·Letter dated 20 March 2023 from Munish Kumar Bansal, Advocate & Sales Tax Income Tax Consultant, in which he stated that Jaspal Singh is his client and he has lodged his tax returns for him since 2016

    ·Affidavit made by Jaspal Singh on 20 March 2023 in which he deposes that the applicant is his son and that he provided ITRs 732332290201120 and 778878500080891 for his son’s student visa application. He said the ITRs were legally lodged by a registered accountant and no alteration had been made to them. Mr Singh provided his log in and password details to enable access to the income tax department page

    ·e- Filing View Filed Returns for Jaspal Singh which showed details of filed returns for several income years including the years 2019-20 and 2020-21. The Acknowledgement Nos for these years were 778878500080891 and 732332290201120   

    ·Indian Income Tax Return Acknowledgment for the Assessment Year 2019-20 for Jaspal Singh Acknowledgement Number 778878500080891

    ·Income Tax Return Acknowledgment for the Assessment Year 2020-21 for Jaspal Singh with Acknowledgement Number 732332290201120

    ·Intimation u/s 143(1) of the Income Tax Act, 1961 received from Income Tax Department, Government of India for Assessment Year 2019-20.

    ·Written submission from representative in which the following information was provided :

    oThe applicant denies any submission of any fraudulent documentation to any department.

    oThe applicant is a 22 year old  young man who came to Australia to seek better future for him and his family.

    oOn meeting the representative, the applicant was scared and very upset and believed that his future is ruined and became emotional.

    oThe applicant thoroughly checked the application and nothing was written incorrectly. No document was altered and the original documents can be found on the Income Tax portal by logging on to the tax portal ‐ /log in by using the Username***** Password: ****

    oAffirming the decision will result in financial loss to the family and the applicant and will leave his career in jeopardy. His family will be depressed as they have invested money and faith in their child who will be coming back to India without any qualification. This will affect the applicant’s mental state as he is very close to his family.

    oThe applicant will not be able to make any further application for any visa to Australia as this cancellation will make his immigration history poor and any other country will also be hesitant to give the visa due to this issue.

    Section 375A certificates

22. The Department file contained 2 certificates issued under s 375A of the Act. If a certificate is validly issued under s 375A of the Act, the Tribunal must do all that is necessary to ensure the document or information the subject of the certificate is not disclosed to any person.  To be valid, a s 375A certificate must specify a public interest reason for non-disclosure, the information must meet the description of being against the public interest to disclose and the certificate must be signed.

23. The certificate dated 2 May 2022 stated that disclosure of the information would be contrary to public interest because: Disclosure of the information would: (a) it would prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance; and (b) disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

24. The certificate dated 23 March 2023 stated that disclosure of the information would be contrary to public interest because disclosure of the information would: (a) disclose, or enable a person to ascertain the existence or identity of, a confidential source of information; and  (b) disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

25. The Tribunal decided the certificates contain valid grounds of public interest immunity not to disclose the information. The Tribunal asked the applicant whether he wished to comment on the validity of the certificate. After a brief adjournment to discuss the certificates with his representative, the applicant said the certificates were not valid because he did not know the nature of the protected information. The Tribunal confirmed that the certificates contained valid grounds of public interest immunity not to disclose the information and were signed and informed the applicant that it found the certificates to be valid.

26. At the hearing the Tribunal advised that while it accepted the public interest was not served by the actual release of the folios protected by the s 375A certificates, it considered that in the interests of procedural fairness the applicant had a right to be informed of the ‘gist’ of the information and that it would put the information to him for him comment or response.

27. Utilising the procedure under s 359AA of the Act,  the Tribunal put to the applicant that the information protected by the certificate dated 2 May 2022 included information related to an investigation into the Indian Student visa fraud and an Australian education provider and in course of the investigation several Student visa holders who provided fraudulent documents  in the student visa applications were identified. The information and documents protected also included the Department’s internal documents relating to the verification of the applicant’s father’s tax documentation submitted with the visa application and the applicant’s response to the s 107 notice. The applicant made no comment other than to say he had provided correct information and genuine documents with his application.

28. The Tribunal put to the applicant that the certificate dated 23 March 2023 covered information in relation to the Department’s methods of investigation including the Department’s integrity check following his response to the s 107 notice (see below). The applicant made no comment.

    Information on the Department’s file

29. Following the applicant’s response to the s 107 notice and the provision of further documents, the Department requested the following:

    Given the new evidence provided by the client, appreciate if post can revisit this integrity check based on the new supporting docs from the client and confirm if the documents are still considered to be non-genuine as per original assessment.

    Tax Holder name; JASPAL INGH -7/04/1974

30. The response received was:

    In regards to the referral, we have looked into this application to re-verify the ITRs, however there have been made changes to the ITR verification procedures by the Govt, hence we are unable to re-verify these documents.

31. Prior to the hearing, the Tribunal logged on to the applicant’s father’s information on the India Tax Department portal. The Tribunal accessed the details by using the User name and Password provided by the representative. The Tribunal was able to access View Filed Returns which showed in relation to the Assessment Year 2019-20 an Acknowledgment No  778878500080891, and in relation to the Assessment Year 2020-21 an Acknowledgment No  732332290201120. In addition, in relation to the Assessment Year 2020-21 the information  showed that an income of 332,910  which was consistent with the income on the Indian Income Tax Return Acknowledgment provided by the applicant with his Application for a Student Visa.

    Evidence at hearing

32. The applicant told the Tribunal that he provided correct information and genuine documents with his visa application. He asked the Tribunal to access his father’s details on the tax department portal using the Username and Password he had provided.

33. The applicant told the Tribunal that his father’s tax returns are filed by an accountant. The Tribunal noted that the View Filed Returns page indicates that the tax returns are filed by Self. The representative explained that the filing was done by the accountant however his details are not included because he used the applicant’s father’s Username and Password. He likened it to a migration agent lodging a visa application for an applicant using their ImmiAccount details. The Tribunal accepted this explanation.

34. The applicant told the Tribunal that his family paid for the visa application fees, his airfare to Australia and his living expenses in Australia. He has recently obtained employment and is now able to contribute to his living expenses however if his visa is not cancelled, he will resume study and his family will financially support him.

    Information provided by the Department following the hearing

35. Prior to the hearing, the Tribunal requested the New Delhi Post to re-verify the Income Tax Returns Acknowledgement for the Assessment Years 2019-2020 and 2020-21 for Jaspar Singh.  Following the hearing, the Department advised:

    The below advice that we were unable to re-verify was because the ITR department made changes to their website in 2022 which resulted in us being unable to verify ITRs online because it asks for the registered mobile number of the person: e-Filing Home Page, Income Tax Department, Government of India.

    However we have another link within the same site which we can use – the e-portal income tax website. When conducting a verification via this link, the acknowledgment numbers came out as genuine …..

    Conclusion on non-compliance

36. On the evidence before it, the Tribunal finds that the following documents provided in support of the applicant’s Application for a Student a Student Visa are not bogus documents:

    ·Indian Income Tax Return Acknowledgment for the Assessment Year 2020-21 for Jaspal Singh from Income Tax Department with e-filing Acknowledgement Number 732332290201120, submitted electronically on 20 November 2020 at 12:18:13.

    ·Indian Income Tax Return Verification Form for the Assessment Year 2019-20 for Jaspal Singh from Income Tax Department with e-filing Acknowledgement Number 778878500080819, submitted electronically on 08 August 2019 at 18:20:13.

1. In making this determination the Tribunal places weight on the Department’s response to the request to revisit the integrity check (see paragraph 30 hereof), the information accessed by the Tribunal using the Username and Password for the applicant’s father’s details on the tax department portal and the information provided by the Department following the hearing (see paragraph 35 hereof). Taking this information into account, and the written and oral evidence, the Tribunal finds it does not reasonably suspect that the documents are counterfeit or have been altered by a person who does not have authority to do so.

2. The Tribunal further finds that the applicant did not provide incorrect information in the Application for a Student Visa when he stated that his parents and grandparents will provide financial support by paying for his tuition fees and living costs. The applicant’s father’s tax details show he has the financial capacity to provide financial support to the applicant.

3. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   Christine Kannis
   Member

   
   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

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

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

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

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

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

   97Interpretation

   In this Subdivision:

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

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

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

   98Completion of visa application

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

   99Information is answer

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

   100Incorrect answers

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

   103Bogus documents not to be given etc.

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

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

   107Notice of incorrect applications

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

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

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

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

   (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

   (f)      requiring the holder:

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

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

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

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

   (b)     otherwise—14 days.

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

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

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

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

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

   108Decision about non‑compliance

   The Minister is to:

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

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

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

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

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

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

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