Brar (Migration)

[2023] AATA 3473

Brar (Migration) [2023] AATA 3473 (26 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh Brar

REPRESENTATIVE:  Ms Gurpreet Kaur Dhawan (MARN: 1803669)

CASE NUMBER:  2209366

HOME AFFAIRS REFERENCE(S):          BCC2020/2417888

MEMBER:Christine Kannis

DATE:26 August 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 August 2023 at 9:34am

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – bank statement was not genuinely issued to the applicant – Mr Singh had provided a bogus document in his visa application – applicant’s failure to review documents submitted to the Department in his name – decision to grant the visa was based partly on a bogus document – decision under review affirmed

LEGISLATION 
Migration Act 1958, ss 103, 107, 109, 359
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadji (2010) 190 FCR 248

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 103 of the Act.  The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal by MS Teams video on 8 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister,  Ms Gurpreet Kaur. 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 affirmed.

   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 on 4 March 2022, the Department sent the applicant an email advising that it needed to send him important correspondence about his visa and requested that he provide his current address and email address. On 5 March 2022, the applicant replied by email and provided his current address and email address. The s 107 notice dated 7 March 2022 was sent to the applicant at the email address he provided.

   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 breach of s 103  relates to a Subclass 600 Visitor visa the applicant lodged on 16 May 2019.  Section 107A of the Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.

11. The cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Section 111 states that ss 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.

    Alleged non-compliance with s 103

12. Section 103 provides that bogus documents are not to be given.  A ‘bogus document’ is defined in s 5 (1) 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.

    13.The non-compliance identified as non-compliance with s 103 was:

    The applicant submitted the following bogus document in support of a Visitor visa application on 16 May 2019:

    A HDFC Bank (India) statement issued on 15 May 2019, confirming that he was the holder of an account (account number ending 7698) and had a current balance of INR 14,33,504.00.

13. On the basis of the information provided in his Visitor visa application including the supporting HDFC Bank (India) statement, as well as meeting all other relevant criteria, the applicant was granted a Visitor visa on 22 May 2019.

14. On 4 September 2020, verification checks of the HDFC Bank (India) statement were undertaken by the Department’s New Delhi Office.  The outcome of the verification check was that HDFC Bank (India) confirmed the bank statement was not genuinely issued to the applicant. 

    Response to the s 107 notice

15. On 18 March 2022, the applicant responded to the s 107 notice in a written submission from his migration agent which included the following information:

    • The applicant hails from a farming town in Punjab. He is residing in Victoria and completing his Diploma in Building and Construction.
    • In 2019, the applicant approached Mr Harsatbir Singh (Mr Singh) of Exclusive Migration Group Pty Ltd to lodge a Visitor visa application so he could attend his sister’s wedding in Australia, planned for mid-2019. The visa was granted and the applicant arrived in Australia on 10 June 2019.  
    • The applicant’s mother was in Canada and wished to attend the wedding and therefore the wedding was delayed to enable her to apply for a Visitor visa.  
    • At this time, the applicant’s father was on a Visitor visa in Australia obtained through Mr Singh. He also obtained a Visitor visa extension for the applicant’s father and the applicant’s belief in him became stronger.
    • Given that his sister’s wedding was delayed, the applicant chose to study in Australia and asked Mr Singh to lodge an application for a Student visa.
    • Recently it has come to the applicant’s attention that Mr Singh did not lodge the above applications under his migration agent’s licence and they were lodged as self-registered users. Furthermore, in the application he was indicated to have a fiancée, which was not true.
    • The applicant has never seen or provided fraudulent documents to Mr Singh.
    • When he received the NOICC, the applicant contacted Mr Singh but he put his hands up saying he has no recollection of the documentation submitted as it was a 3-year-old application.
    • The applicant discovered that not only had Mr Singh provided documentation on his behalf that he was not aware of, but he also lodged the applications under the applicant’s own name and not under his registered migration agent’s number. If the IP address details are reviewed, the applicant is certain it will show they were not lodged by him and were lodged by Mr Singh.
    • The applicant has evidence of communication with Mr Singh in relation to the various visa applications lodged on his behalf, while communicating with his sister via WhatsApp.
    • Mr Singh was paid to undertake the migration work.
    • The applicant has never had a bank account with HDFC Bank. At the time of lodgement of the Visitor visa application, he had access to funds to support same and did not provide documentation that was not genuine.
    • The applicant does not engage in dishonest practices, either in his personal life, in communication with government authorities or under any circumstances.
    • The NOICC has caused the applicant immense stress, particularly the revelation that Mr Singh had not lodged the above applications under his migration licence after taking excessive funds to do so.

16. At the time of responding to the s 107 notice, the applicant provided documentation which included but was not limited to:

    • Documents, email and SMS screenshots showing communications with Mr Singh regarding various applications;
    • Punjab National Bank account particulars for account (number ending 5588) and transaction list for the applicant, dated 09 September 2013;
    • Punjab National Bank account statement (number ending 5588) for period 11 April 2019 to 10 June 2019;
    • Photograph of bank cheque showing payment of INR 1,700,000 from account (number ending 1352) to Darbara Singh & Sons on 16 May 2019 and accompanying Andhra Bank slip;
    • Income Tax Returns for 2016-2017, 2017-2018 and 2018-2019 and verification forms of the applicant, completed by Garg Atul and Associates (Chartered Accountants);
    • Five untranslated pink coloured slips, reference number ending 32121;
    • Document titled Market Committee Bagha Purana – Form J, dated 26 April 2021; and
    • Three untranslated documents, related to the 2017-2018 financial year.

    Evidence provided prior to the hearing

17. Statutory declaration dated 3 August 2023, made by the applicant in which he provided similar information to his response to the NOICC and also stated:

    ·He is the victim of fraud and did not commit the fraud.

    ·His sister looked after the visa process for him.

    ·The Department encouraged him to use a trusted Registered Migration Agent and they used Mr Singh.

    ·Mr Singh lodged his application for a tourist visa from an email which was not his (the applicant’s) email address.

    ·The Form 956 obtained through FOI shows Mr Singh’s signature but the signature purporting to be his is not his signature.

    ·He has filed a complaint against Mr Singh with OMARA.

    ·His sister told Mr Singh that he had a previous visa refusal in Canada but Mr Singh did not mention it in the visa application.

    ·His sister sent Mr Singh Andhra Bank and Punjab National Bank statements which showed he had money in both accounts and he had no reason to lie.

    ·The visa application states he was engaged when he came to Australia and this was incorrect.

    ·When he received the NOICC, he contacted Mr Singh and Mr Singh said he had no access to the documents and hung up the call. He also suggested he apply for a Protection visa.

    ·He contacted another migration agent who replied to the Department. If she had accessed FOI she would have found out about the Form 956.

    ·Before receiving the NOICC, he lodged a Temporary Graduate (Post-Study Work Subsequent Entrant) (Subclass 485) visa application which was refused due to Mr Singh’s negligence because he did not submit the correct AFP certificate.

    ·He has paid $16,002 for a Diploma of Building and Construction course and has completed a Certificate III in Painting.

18. Statutory declaration dated 12 May 2019 made by the applicant’s sister, Ms Gurpreet Kaur Brar, in which she states that she wishes the applicant to visit her in Australia and that she will personally make sure he leaves Australia prior to the expiration of his authorised stay.

19. Statutory declaration dated 3 August 2023, made by Ms Gurpreet Kaur Brar in which she stated:

    ·In 2019 she was referred to Mr Singh by a friend. Mr Singh obtained a visa and a visa extension for her father.

    ·She contacted Mr Singh about a tourist visa for the applicant and told him about the applicant’s Canada visa refusal via emails and messages. He said he liked challenging cases.

    ·Mr Singh demanded INR 8 LakH. She agreed to the payment because she wanted her brother to be at her wedding at any cost and Mr Singh said “no win no fee”. Before she went to Mr Singh she went to many agents who refused to take the case however Mr Singh gave her hope to bring the applicant to Australia. 

    ·During the visa process they provided documents via email, messages and personally.

    ·After the applicant arrived in Australia, he decided to study and she approached Mr Singh. She sent him visa related documents via email. The Student visa was granted and the applicant commenced his course in painting , building and construction. He was a genuine student and paid his fees. His course was almost finished when he received the NOICC.

    ·The applicant stopped going out and started living in his own shell. She was depressed to see him like that.

    ·She is an Enrolled Nurse and is a law abiding citizen. If the applicant was wrong she would agree with the cancellation decision but he did not provide a fraudulent document.

    ·Her parents are going through a lot. Her father’s health is deteriorating because the applicant is the only son.

    ·She has sent emails directly to the Tribunal because the delegate said there was no clarity on the documents submitted by the agent.

20. The following documents:

    ·Applicant’s passport, photos of the applicant and Indian identification documents;

    ·Indian Income Tax Return Verification Forms for Assessment Years 2016-17, 2017-18 and 2018-19 for Manpreet Singh Brar;

    ·Garg Atul and Associates Computation of Total Income of Manpreet Singh Brar for Assessment Years 2016-17 and 2017-18;

    ·Rohit Goyal Computation of Total Income of Manpreet Singh Brar for Assessment Year 2019-20;

    ·Income Tax Return Acknowledgement for Manpreet Singh Brar for the Assessment year 2019-20;

    ·HDFC Bank statement dated 2 May 2019;

    ·Punjab National Bank Account Statement in the applicant’s name for the period 2019/04/11 to 2019/06/10;

    ·Union Bank of India statement for the period 17 January 2017 to 9 March 2022  in the applicant’s father’s name;

    ·Punjab School Education Board documents for Manpreet Singh dated 7 May 2014 and 18 December 2015;

    ·Accredited Education & Training Australia Pty Ltd document signed by the applicant on 28 June 2019. The document appears to set out the conditions of studying with the provider;

    ·Accredited Education & Training Australia Pty Ltd certificate dated 28 August 2020  in the applicant’s name for Certificate III Painting and Decorating course and letter of completion advising he competed the course on 21 July 2020;

    ·Accredited Education & Training Australia Pty Ltd Statement of Attainment dated 24 July 2023 in the applicant’s name showing completion of 7 units;

    ·Email dated 31 July 2023 from Accredited Education & Training Australia Pty Ltd stating the applicant was enrolled in a Diploma of Building and Construction (Building) and confirming payment of the course fee;

    ·Screenshots of email dated May 2019  identified as having been sent to the Tribunal by the applicant’s sister;

    ·Form 956 signed by the applicant dated 13 May 2019 appointing Mr Harsatbir Singh as his migration agent;

    ·Email dated 22 August 2022 from Office of Migration Agents Registration Authority (OMARA)  to the applicant advising that his complaint had been received;

    ·Email dated 26 November 2022 from Ms Prabhjot Kaur to OMARA complaining that the agent Mr Harsatbir Singh was fraudulent because he did not upload required documents (AFP certificate) and he altered a bank statement. She said Mr Singh had provided incorrect information to the Department that the applicant was engaged; and

    ·Screenshots of 12 Google reviews of Exclusive Migration Services which were both positive and negative reviews with an overall rating of  2.9 out of 5 stars.

21. Written submission dated 2 August 2023, from the applicant’s representative which provided the following information:

    ·The applicant came to Australia on a tourist visa on 10 June 2019 and applied for Student visa which was granted on 9 August 2019.

    ·The applicant applied for a Temporary Graduate (Post-Study Work Subsequent Entrant) (Subclass 485) visa on 25 November 2021 which was denied on 5 May 2022.

    ·Ms Gurpreet Kaur contacted Mr Singh for a tourist visa for her father while he was in Australia which was granted on 2 April 2019. She discussed a tourist visa for the applicant with Mr Singh, which was applied for on 4 July 2018 and was refused . She told him the applicant had been refused a visa by Canada in 2018. She sent Mr Singh documents on WhatsApp. On 13 May 2019, Ms Kaur asked Mr Singh about the financial capacity required by the applicant, to which he said Min 5 Lack.

    ·There were enough funds in the applicant’s account at that time. The applicant was a joint holder of an Andhra Bank account (number ending in 1352) with his father. He has provided Andhra Bank (now Union Bank) and Punjab National Bank statements. A cheque was issued on 16 May 2019 for 17,000,000 INR and could only be issued because there was enough money in the account. The Andhra Bank account is still in use and the applicant has given authority to his father to operate the account.

    ·At the time of lodgement, the applicant had these accounts and had 156,628.24 INR in Punjab National Bank and 16,73,989 INR in Andhra Bank. This account is a Cash Credit Account (account in which applicant and his father transact in relation to agriculture). A Cash Credit facility allows an individual to withdraw money even if the account balance is zero or insufficient, up to a predetermined limit set by the bank.

    ·On 16 May 2019, Mr Singh lodged the tourist visa application and Ms Gurpreet Kaur paid $250 to Exclusive Migration Services (screenshot provided).  In the same screenshot Mr Singh asked her to call on WhatsApp. We believe the reason is because WhatsApp calls are protected by end-to-end encryption and only the sender and recipient can decrypt and access the content of the calls.

    ·Ms Gurpreet Kaur and Mr Singh also communicated by email. Ms Kaur has sent all the emails to Tribunal which include several documents sent to Mr Singh for the tourist visa at his email address as published on OMARA website.  They also communicated by direct messages to Mr Singh’s phone number as published on OMARA website. The communication is about documents for tourist visa.

    ·The tourist visa application was lodged from a self-registered user under an email address for the applicant which was not his email address.  We request the Tribunal to ascertain the IP address from which the visa application was lodged. This may identify possible co-conspirators and trace location and devices used.

    ·The delegate did not pay attention to the Form 956 when the visa was granted. This fraud could have stopped at the initial stage if the delegate had investigated with due diligence. The delegate should have also noticed this in the NOICC reply. The delegate said there was no clarity on the evidence. If a duty of care was imposed and a signed Form 956 would have the point of the investigation, the applicant would be in a different position today. The Form 956 was never signed by the applicant manually or electronically and he welcomes investigation on that. As per the code of conduct, a client agreement must be signed and Form 956 followed by a statement of service. However, in this case, no agreement was ever signed.

    ·The applicant has never had a fiancée, whereas there is a fiancée named Sukhdeep Kaur. 

    ·From 11 June 2019, Ms Gurpreet Kaur contacted Mr Singh as the applicant wished to change his tourist visa to Student visa. Mr Singh organised the CoEs, health insurance. On 4 July 2019, he sent HAPP ID of applicant and a Bridging Visa grant letter to Ms Kaur by WhatsApp.  

    ·When the applicant came to Australia, he met Ms Prabhjot Kaur and they commenced living as de facto partners from November 2020.

    ·On 25 November 2021, the applicant applied for a Temporary Graduate (Post- Study Work Subsequent Entrant) (Subclass 485) visa which was denied on 5 May 2022. The delegate stated that the applicant had been given 28 days to provide his AFP Immigration/Citizenship – Australia clearance and no response was received. Therefore, the delegate decided the applicant had not satisfied reg 2.03AA(2)(a).  On 6th May 2022, Ms Prabhjot Kaur emailed Mr Singh questioning why the receipt of the new AFP was not attached. Mr Singh advised he must submit the AFP of the same reference number, of which payment receipt was submitted at the time of application. This information was wrong and this jeopardized the visa application.

    ·There seems to be investigation in process as on 19 July 2023, Mr Singh’s registration showed his most recent registration as 19 September 2022.

    ·Upon discovering the fraud of Mr Singh, the applicant filed a complaint with OMARA.

    ·Students rely on agents and the applicant and there is no way he could have questioned why Mr Singh was only communicating through WhatsApp and not by email.  We agree the onus is on the applicant but if students knew the visa processes they could do it themselves.

    ·The Government and the Department advise to trust registered migration agents; however, in this case, the Department’s advice was wrong and after using a registered migration agent, the applicant is facing the same consequences as if he used an unregistered agent.  

    ·The applicant is a genuine student and has completed a Certificate III of Painting just before cancellation and he was on the edge of completing Diploma of Building and Construction.

    ·The applicant’s parents are mentally stressed as their only son’s future is at stake. His father’s health is deteriorating. The applicant is the only one in the family to look after his parents as his sister is settled in her married life. If his visa is cancelled, the applicant could lose the time and money he has invested in his studies and also lead to a significant setback in his career aspirations. With only a few months left to complete his studies, revoking his visa cancellation would allow him to fulfil his educational goals and acquire the qualifications for a successful future. If his visa is not granted, it will affect him financially and shatter him emotionally. He spent almost 2 years in Australia and would be ashamed to return without a diploma level qualification. He and his family will be shamed and bullied by society.

    ·The applicant will not be able to get a degree qualification because if he does not complete his diploma, he will not get admission to India after the gap in his study history. Also, he will not get any credit for his study.

    ·In India social pressure is enormous and people are judgemental; society in Australia is different. Often in India students commit suicide due to failure in academic studies due to social shame of themselves and their parents. The National Crimes Record Bureau data shows 10,159 students died by suicide in 2018, an increase from 9,905 in 2017, and 9,478 in 2016. According to a 2012 Lancet report, suicide rates in India are highest in the 15-29 age group. Suicides in premier institutes such as IITs hold a mirror to the education system. As per data from the Department of Higher Education, under the Ministry of Human Resource Development (MHRD), 27 students across 10 Indian Institutes of Technology (IITs) committed suicide between 2014 and 2019. A.K. Joshi, Professor and Head of Sociology, Banaras Hindu University, stated, “Academic stress is an obvious factor for students taking their own lives. After studying to a certain level when they feel they are support less or he/she can’t fulfil their own and their parents’ role expectations, a role conflict starts within the student. In this type of situation students feel they are left without any choice and so they take such an extreme step.  Source : day/article61638801.ece

1. Screenshots of emails and WhatsApp communication in relation to the communication referred to in the written submission were included in the written submission.

   Evidence provided at hearing

   Applicant’s evidence

2. The applicant told the Tribunal that he has never had a bank account with HDFC Bank (India). He said he did not provide a bogus document to Mr Singh. He told the Tribunal that his sister engaged Mr Singh. Noting that in his response to the NOICC he said he approached Mr Singh, the Tribunal requested clarification. He said it was his sister who approached Mr Singh.  

3. In response to the Tribunal asking whether he asked to review the visa application before it was submitted to the Department, the applicant said he was not sent any emails which would have enabled him to check the visa application and said his sister was the one who communicated with Mr Singh. He told the Tribunal that, as advised by the government, they used a registered migration agent and expected him to abide by the rules and regulations. The Tribunal put to the applicant that given that the visa application was an official document submitted in his name for a serious purpose, he should have asked to check the information provided to the Department. In response, he said he was not aware that Mr Singh had provided a bogus document in his visa application. 

4. The applicant told the Tribunal Mr Singh was paid a fee for his services.

5. The applicant told the Tribunal that when he received the NOICC, he contacted Mr Singh and asked him to provide the paperwork submitted to the Department. He said Mr Singh said he no longer had the paperwork and suggested he apply for a Protection visa.

6. The Tribunal asked the applicant about the HDFC Bank statement dated 2 May 2019 provided prior to hearing. The document is headed ‘Taxpayer’s Counterfoil’ and the name of the addressee is the applicant. The applicant told the Tribunal that the document shows the tax paid by him from his “CA’s” account. He said he paid his “CA” cash and his “CA” paid the tax from his own HDFC Bank account. The Tribunal accepts this evidence.

7. The Tribunal asked the applicant about his claim that he did not sign the Form 956 and noted that his signature on the Form 956 appears to be identical to his signature on his passport. In response, he said he does not know how his signature came to be on the Form 956 and he welcomes an investigation into the matter.

8. In response to the Tribunal asking about the progress of the OMARA complaint, the applicant said the outcome is still pending.

9. The Tribunal noted that the applicant claimed he was a joint account holder with his father of the Andhra Bank account however his name does not appear on the statements provided. He said he has given his father authority to use the account  with his mother. Following the hearing, an email sent by the applicant to an email address, [email protected] was provided (see paragraph 42). The email is an instruction however does not establish that the applicant was a joint account holder with his father of an Andhra Bank account.

10. When asked about the hardship that may arise from the cancellation of the Student visa, the applicant told the Tribunal that he has not been able to complete his study and this is an embarrassment for him and his parents. He said the cancellation has caused he and his sister to experience stress. He said his relationship with Ms Prabhjot Kaur ended because the cancellation caused him to withdraw from her and his family. He said he is still suffering.

11. The applicant told the Tribunal that he lives with his sister (Ms Gurpreet Kaur) and her husband. His parents have been in Australia since December 2022 and they also live with them. He said his parents will return to India at the end of the year.

12. In response to the Tribunal asking how he spends his days given he is not studying, the applicant said he has nothing to do and doesn’t feel like doing anything. He said he does things around the house and spends time with his parents. When asked how he is financially supported, the applicant told the Tribunal that he has worked as a truck driver for 20 hours per week since 2020 and has continued in that employment to the present day. He said his sister also provides financial support.

13. Noting that the evidence was that his family’s business is in farming, the Tribunal asked the applicant the reason he studied painting and decorating. In response, he said the construction business in India is booming and there will be lots of work for him when he returns.

14. In response to the Tribunal asking about whether he makes any contribution to the community, the applicant said he worked as a truck driver during the COVID-19 pandemic and he pays taxes.

    Ms Gurpreet Kaur’s evidence

15. Ms Gurpreet Kaur told the Tribunal that because Mr Singh was a registered migration agent she expected him to do his job well. When asked whether she checked the application and documents submitted on behalf of the applicant, she told the Tribunal that at the time she was a student and she was studying and working and did not have time to check. She said she trusted Mr Singh because he had successfully applied for a visa for her father.

16. Ms Gurpreet Kaur told the Tribunal her parents travelled to Australia in December 2022 to provide support to her and the applicant because they were stressed about the cancellation.

    Representative’s submissions

17. The Tribunal acknowledged the pre-hearing written submission and asked the representative if she wished to address any particular matters raised in it.

18. The representative’s oral submissions were not materially different from the pre-hearing written submission and included the following:

    ·    The delegate should have detected the fraud and identified the Form 956 and the self-lodgement indication in the visa application.

    ·    If a FOI application had been made at the time of the NOICC, the inconsistency would have been clear.

19. In response to the Tribunal noting that the applicant and Ms Gurpreet Kaur said they did not check the visa application and documents submitted on the applicant’s behalf, the representative said the migration agent also had an obligation to provide correct information and genuine documents.

    Evidence provided following the hearing

20. The following email:

    From: Manpreet Brar <[email protected]>
    Date: 21 May 2020 at 8:14:12 pm AEST
    To: [email protected]
    Subject: About account Manpreet singh S/o Barjinder singh

    
    Hi
    Dear sir/mam
    My name is Manpreet Singh S/O Barjinder Singh. We have our joint account in Andhra Bank, ACC no. 206913100001352. I just want to confirm that, I have no issues if my father use our account. My Father is owner all of our property. And one more thing, He wants to apply cheque book of your bank please allow him to apply that, as I said I have not any problem with this. Please give him all authorities to use our mutual account.
    Your sincerely.
    Manpreet Singh

21. A written submission from the applicant’s representative which provided information not materially different to information provided prior to and during the hearing and the following additional information:

    ·The financial dimension constitutes one facet of the tourist visa application process. The Genuine Temporary Entrant criterion encompasses a comprehensive spectrum, necessitating the applicant's fulfilment of every aspect within this framework.

    ·Mr Singh did not utilize his registered immigration account to lodge the application. This raises a concern regarding his commitment to the principles of professionalism and transparency. No authorized recipient is in the file, demonstrating Mr Singh’s intentions as he knew what he was doing. This raises questions about his dedication to maintaining a continuous and active engagement with the applicant’s case, potentially impacting the quality of representation provided.

    ·The agent’s google “reviews showed how worst his services are so why didn’t MARA picked this yet. He should be off the OMARA list long time ago and my client and other applicants who used his services would have better outcome”.

    ·Even individuals born and raised in Australia may need a comprehensive understanding of the intricacies of visa requirements. This underscores the complexity of the immigration process and emphasizes the critical role migration agents play in guiding applicants through the procedures, The Migration Act 1958, provides that registered migration agents must conduct themselves in accordance with a code of conduct prescribed under Migration Agent Regulation 1998.

    ·As it can be said onus lies on the student. Before we conclude, where does the onus lie? We need to understand the difference between accountability and onus. Accountability involves taking responsibility for the tasks at hand.  A Registered Migration Agent undertakes responsibility and accountability to offer immigration-related assistance in this scenario. Therefore, it raises the question of why the burden is solely placed on the applicant rather than on the entrusted professional who is responsible and accountable for delivering the legal services.

    • The decisions in Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 and Talvir Singh (Migration) [2020] AATA 3473 (17 July 2020).
    • The applicant stands to encounter a substantial financial setback, an amount to potentially cover the cost of constructing a home in India. He has paid his tuition fees and the expenses of the immigration journey including responding to the NOICC, initiating the Tribunal application and retaining our professional services.
    • If the applicant is unable to successfully conclude his studies in Australia, the substantial duration he has devoted to his education here could potentially pose obstacles in the pursuit of resuming the university pathway in India. The years invested in the Australian educational system might impede his seamless reintegration into the academic stream in India. 
    • The applicant is an excellent student and completed most of his studies. He has already paid majority component of his tuition fee (more than 80%)
    • The applicant has no significant ties to Australia apart from his sister. As his father is about to retire, he is responsible for returning to India to care for his parents.
    • The applicant has participated in the visa cancellation process, providing a response to the s.107 notice and has cooperated with the Department. There is no information before the Tribunal of the applicant behaving adversely toward the Department.
    • It's commendable that the applicant chose to contribute to their community by working during the peak of the COVID-19 pandemic when many others were staying home due to safety concerns. Working as a truck driver during that time likely involved various challenges and risks, including potential exposure to the virus, while ensuring essential goods and supplies continued to be transported.

    Conclusion on non-compliance

22. The applicant did not dispute that a bogus document was provided with his Visitor visa application. The Tribunal finds that the HDFC Bank (India) statement dated 15 May 2019 is a bogus document because the bank confirmed that the statement was not genuinely issued to the applicant. Therefore, the Tribunal reasonably suspects that the statement  is counterfeit or has been altered by a person who does not have authority to do so and finds it is a bogus document. The Tribunal finds that the statement is counterfeit within the meaning provided by paragraph (b) of section 5(1) of the Act.

23. The Tribunal accepts that an agent assisted the applicant with his visa application. However, the Tribunal is of the view that the applicant had the responsibility of checking the documents before they were submitted and an opportunity to do so, as he may have been able to withhold payment from the agent until his requirements were met. The Tribunal is also mindful that s 111 of the Act make it clear that cancellation provisions apply whether or not non-compliance deliberate or inadvertent.

24. The Tribunal declines to raise an investigation to ascertain the IP address from which the Visitor visa application was lodged. The Tribunal accepts that the visa application was indicated to have been self-lodged and that it is likely the agent lodged the visa application, however this does diminish the responsibility of the applicant to ensure that correct information and genuine documents are submitted to the Department on his behalf, particularly before payment is made to an agent.

25. For these reasons, the Tribunal finds that there was non-compliance with s 103  by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

26. 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).

27. 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 (the Regulations).

28. 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.

29. The Tribunal has taken the reg 2.41 prescribed circumstances as well as any other relevant facts and matters, including the applicant’s responses to the s 107 notice into account when considering the discretion.

    Prescribed circumstances

    The correct information

30. The correct information is that the applicant did not have INR 1,433,504 in a HDFC Bank (India) account on 15 May 2019.

31. The Tribunal gives this significant weight in favour of exercising its discretion to cancel the visa.

    The content of the genuine document (if any)

32. This consideration does not apply in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

33. For the reasons set out above, the Tribunal has concluded that the decision to grant the visa was based partly on a bogus document. It is not necessary to establish that the visa would not have been granted if a bogus document was not provided. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on the bogus document.

34. The applicant claimed to have sufficient funds in two other bank accounts at the time the visa application was lodged however this information was not before the Department at the time of decision.

35. The Tribunal gives this factor weight in favour of its discretion to cancel the visa.

    The circumstances in which the non-compliance occurred

36. The Tribunal accepts that the applicant and Ms Gurpreet Kaur used the services of Mr Singh to apply for the applicant’s Visitor visa in May 2019. The Tribunal accepts that Ms Kaur informed Mr Singh that the applicant had previously been refused a Canadian visa.  The Tribunal accepts that Mr Singh incorrectly stated that the applicant had a fiancée. The Tribunal accepts that Mr Singh may have incorrectly advised the applicant regarding the provision of an Australian Federal Police certificate in relation to a Temporary Graduate (Post-Study Work Subsequent Entrant) (Subclass 485) visa application. These matters do not diminish the applicant’s responsibility to ensure correct information and genuine documents were submitted on his behalf. 

37. The Tribunal accepts that Ms Kaur communicated with Mr Singh by email, messaging, WhatsApp calls and in person and provided documents to him. The Tribunal does not make any adverse finding regarding the mode of WhatsApp communication.

38. Despite the lack of definitive evidence that the applicant and his father were joint Andhra Bank account holders, the Tribunal accepts his evidence that he and his father were joint account holders of that account at the time of application. Therefore, the Tribunal accepts that Andhra Bank statements and the Punjab National Bank statements indicate that the applicant had funds to support his stay in Australia at the time of his Visitor visa application.

39. The Tribunal accepts that the applicant used a registered migration agent. The applicant contended that he did not sign the Form 956 submitted to the Department. The Tribunal makes no finding in this regard as, in its view, the applicant’s failure to request to check that the correct information and genuine documents were submitted to the Department is the central issue. The applicant contended that the delegate should have noted the inconsistency in the Form 965 and the self-registered lodgement of the visa application. At the time of the delegate’s decision, the bogus document had already been provided to the Department and therefore the identification of the inconsistency would not mean that the ground for cancellation did not exist. The Tribunal does not find any lack of due diligence on the Department’s part as contended by the representative.

40. The Tribunal accepts that the applicant lodged a complaint about Mr Singh with OMARA.

41. The Tribunal does not accept that the applicant would necessarily be facing the same consequences had he used an unregistered migration agent as that would depend on the information and documentation submitted to the Department.

42. The Tribunal accepts the submissions in relation to the reliance of students on migration agents in relation to migration matters. However, this does not mean that students are not responsible for the information and documents provided to the Department on their behalf.

43. The Tribunal accepts the applicant’s evidence that Mr Singh included an email address in the Visitor visa application that was not the email address used by him. The Tribunal is of the view that the applicant had a responsibility to check the content of the application and finds he did not take sufficient steps to ensure the application contained correct information.

44. The applicant said he and his sister entrusted his application to an agent who incorrectly lodged the application without using his migration agent licence details. His explanation for the bogus document is that he relied on an agent and he did not provide the bogus document. He said he had no reason to provide the bogus document as he had access to funds in two other bank accounts. Whilst the Tribunal accepts that Mr Singh completed the visa application, it finds the applicant’s explanation problematic. As noted, the Tribunal is of the view that the applicant had the responsibility to learn what information and documents were being submitted on his behalf. The applicant (or his sister) could have made a request to review the documents, particularly before the application was made and the agent’s fee paid. In the Tribunal’s view, it was his responsibility to do so to ensure that any information (including his email address) submitted on his behalf was correct and accurate and any documents provided in support of the application were genuine and  an agent’s assistance does not diminish his own responsibility for the content of his application and supporting documents before they were submitted. The visa application was an official document submitted for an important and serious purpose. The Tribunal finds that, given the declaration that information he provided was complete and correct information in every detail on the form and on any attachments, the applicant was negligent in his actions in not reviewing the application. The Tribunal notes that the applicant’s sister also did not ask to review the application before it was submitted, her stated reason was that she was busy. The applicant’s evidence was that there was no reason to check because they trusted the agent. The Tribunal is not satisfied that the applicant took adequate steps to check the application and supporting documents.

1. The delegate referred to being unable to verify the applicant’s claims that he did not provide the bogus document to Mr Singh. The Tribunal accepts that Mr Singh may have provided a bogus document on the applicant’s behalf without his knowledge however there is insufficient evidence on which to make a positive finding that he did so, either deliberately or inadvertently, and s 111 of the Act makes it clear that cancellation provisions apply whether or not non-compliance was deliberate or inadvertent. As noted, the Tribunal places significant weight on the applicant’s responsibility to check information submitted on his behalf, which he failed to do.

2. Regarding the post hearing submissions in relation to onus and accountability, s 98 of the Act provides that 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 and, as noted, s 111 says s 109 applies whether the non-compliance was deliberate or inadvertent.  

3. Regarding the decision in Gill v Minister for Immigration and Border Protection [2016] FCAFC 142, the Tribunal notes in that case the visa was refused on the basis of public interest criterion 4020 in that the migration agent provided false or misleading information. It was not in dispute that the appellant’s migration agent acted fraudulently. The issue was whether, because of the appellant’s indifference to his agent’s fraudulent conduct, he had to bear the responsibility for that conduct. In the present case, the visa was cancelled because a bogus document was provided and the Tribunal has not made a finding that Mr Singh acted fraudulently.

4. Regarding the decision in Talvir Singh (Migration) [2020] AATA 3473 (17 July 2020), the Tribunal notes in that case the applicant relied on misleading advice provided by a migration agent who had been deregistered at the time he provided the advice. In the present matter the applicant did not rely on misleading advice and there is nothing to indicate that Mr Singh was a deregistered migration agent at the time of the Visitor visa application.

5. The Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.

   The present circumstances of the visa holder

6. The applicant has been residing in Australia for 4 years, having arrived in June 2019. He  is residing with his sister and brother-in-law.  His parents are also in Australia however they will be returning to India at the end of the year.

7. The applicant told the Tribunal he spends his days doing things around the house and being with his parents. He said he is working 20 hours per week and is also financially supported by his sister. He said is not studying even though he has paid for the course.

8. Ms Gurpreet Kaur told the Tribunal that she and the applicant have a close relationship.

9. The Tribunal accepts that the impact of cancellation of the visa is that the applicant will be unable to resume study and that he will no longer live with his sister. The Tribunal gives this some weight against exercising its discretion to cancel 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

10. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations.

11. The post hearing submission referred to the applicant providing a response to the s.107 notice.

12. The Tribunal gives this consideration a little weight against cancelling the visa.

    Any other instances of non-compliance by the visa holder known to the Minister

13. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance.  

14. The Tribunal gives this consideration a little weight against cancelling the visa.

    The time that has elapsed since the non-compliance

15. The applicant provided the bogus document on his Visitor visa application form submitted to the Department on 16 May 2019. The Tribunal accepts that it is more than 4 years since the events of non-compliance occurred, however does not consider this to be a significant amount of time.

16. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

17. There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.  

18. The Tribunal gives this consideration a little weight against cancelling the visa.

    Any contribution made by the holder to the community

19. The applicant told the Tribunal he worked as a truck driver during the COVID-19 pandemic and he pays his taxes. The Tribunal accepts that the applicant has made contributions to the community through his employment including during the pandemic and gives this consideration some weight in favour of not cancelling the visa.

20. The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.

    Other considerations

21. 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

22. There is no one attached to the applicant’s visa and the Tribunal gives this factor no weight in its considerations.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

23. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s 189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a 3 year exclusion period unless he meets the relevant Public Interest Criterion. Whilst these are serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation. 

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

24. There are no children who would be affected by the cancellation. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

25. The applicant is a citizen of India and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations or family unity obligations. 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

26. The applicant told the Tribunal that since cancellation of the visa, he and his family have experienced stress. He said when his visa was cancelled he withdrew from his partner and family and this was the reason for the breakdown of the relationship with his partner. No evidence was provided prior to or during the hearing that the applicant sought medical assistance at any time in relation to his mental, emotional or physical health. The Tribunal notes that the applicant’s evidence at the hearing was that he was able to continue working 20 hours per week in 2020, 2021, 2022 and in 2023.

27. In the evidence provided prior to the hearing it was claimed that cancellation of the visa will mean that the applicant could lose the time and money he has invested in his studies and also lead to a setback in his career aspirations. The Tribunal accepts this evidence. It was also claimed that the applicant’s father’s health is deteriorating. This was not raised during the hearing and no medical evidence was provided to substantiate the claim.

28. In the evidence provided prior to the hearing it was claimed that the applicant and his family will face social shame if he returns without a diploma level qualification. The Tribunal acknowledges the value of Australian qualifications in India, and accepts that the applicant and his family may suffer some stigma.

29. The pre-hearing written submission referred to the social pressure in India and said often in India students commit suicide due to failure in academic studies due to social shame of themselves and their parents. Statistics were provided in support of the submission. There was no evidence, medical or otherwise, to suggest that the applicant is at risk of suicide. 

30. The Tribunal accepts that the applicant completed a Certificate III Painting and Decorating on 21 July 2020 and at the time of cancellation he was undertaking study in a Diploma of Building and Construction. In the evidence provided prior to the hearing it was claimed the applicant will not be able to get a degree qualification if he does not complete his diploma as he will not get admission to India after the gap in his study history. Also, he will not get any credit for his study. The post hearing submission contended that if the applicant is unable to complete studies in Australia, the time he has devoted to his education here might impede his reintegration into the academic stream in India.  No evidence was provided to substantiate this contention.

31. The post hearing submission claimed the applicant financial setback could be enough to potentially cover the cost of constructing a home in India and in support referred to the costs incurred in relation to his study and the migration process.           

32. The Tribunal accepts that the applicant and his family will be disappointed if the visa is cancelled and may experience emotional hardship as a result. The Tribunal accepts that the applicant may suffer financial hardship as a result of the costs incurred in relation to his study in Australia. The Tribunal accepts that cancellation of the visa will mean the applicant will be unable to complete his study and return to India with a diploma qualification and his family may face social shame. 

33. The Tribunal gives this some weight against exercising its discretion to cancel the visa.

    Conclusion on the exercise of the discretion

100.   The Tribunal has considered the factors identified by the legislation and policy. 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 103 of the Act.

101.   The Tribunal accepts that hardship may be caused to the applicant and his family if the visa is cancelled. The Tribunal accepts that the applicant has no other instances of non-compliance and no criminal record. The Tribunal accepts that  the applicant has made contributions to the community through his employment including during the pandemic. These are factors that suggest that the visa should not be cancelled.

102.   The Tribunal accepts that if the applicant’svisa is cancelled, and unless he is granted another visa, he may be subject to detention, although the applicant may be eligible to apply for othervisas.

103.   The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

104.   The applicant’s non-compliance may cause him and his family some hardship, however the Tribunal considers the applicant’s provision of a bogus document is not outweighed by the considerations before it. The Tribunal places greater weight on the circumstances in which the non-compliance occurred including the applicant’s failure to review documents submitted to the Department in his name and that the decision to grant the visa was based partly on a bogus document provided to the Department.

105.   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

106.   The Tribunal affirms the decision 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.