Buttar (Migration)

Buttar (Migration) [2023] AATA 3233 (6 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Baljinder Singh Buttar
REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)
CASE NUMBER:  2204653
HOME AFFAIRS REFERENCE(S):          BCC2020/2368728
MEMBER:Gabrielle Cullen
DATE:6 July 2023
PLACE OF DECISION:  Sydney
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 06 July 2023 at 2:45pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in previous visa application – claimed employment – bogus document – GSTIN Business certificate – consideration of discretion – grant of visa based on incorrect information – indifference towards information submitted by the agent – present circumstances of the visa holder – support pregnant spouse and child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 103, 107, 107A, 109, 359AA, 375A, 376
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision 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).
The applicant is a national of India. On 26 June 2019 he made an application for a Visitor visa which was granted on 28 June 2019 and valid to 18 October 219. He arrived in Australia on 18 July 2019. On 9 September 2019 the applicant made an application for a Student (Higher Education Sector) (Subclass 500) visa as a dependent with his spouse Ms Gagandeep Kaur[1] as the primary applicant. On 23 October 2019 the visas were granted valid to 15 September 2022. He provided a birth certificate indicating he has a daughter born in Australia on 1 March 2021 and is expecting a second child on 27 August 2023 with Ms Gagandeep Kaur.
[1] See Tribunal case 2213154
On 21 February 2022, the delegate sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC) of his student visa under s.109 of the Act and informed him that a response must be provided in writing within 14 calendar days after he was taken to have received the letter.
Following a request for an extension of time to respond, which was accepted, on 22 March 2022, the applicant provided a response to the NOICC.
On 28 March 2022, the delegate cancelled the applicant’s Student visa under s.109 on the basis that he had not complied with s.101(b) and s.103 of the Act.
On 30 March 2022, the applicant applied to the Tribunal for a review of that decision.
On 12 April 2023 the Tribunal invited him to appear before the Tribunal by video link on 29 May 2023 at 9.30am to give evidence and present arguments relating to the issues arising in his case.
On 17 April 2023 the Tribunal wrote to the applicant informing him of the existence of a s.376 non-disclosure certificate issued by the Department on 5 April 2022 as well as a s.357A non-disclosure certificate issued by the Department on 24 November 2022, and what the certificates say. It advised that:
The Tribunal’s preliminary view is that the certificates contain valid grounds of public interest immunity not to disclose the information.
You are invited to comment on or make submissions on the validity of the s 376 and s375A certificates.
On 19 May 2023 the applicant’s representative responded as follows
While I acknowledge the legal provision to issue certificates under s375A and s376 of Migration Act 1958, the principle of natural justice warrants that any information that’s material to the case be put before the appellant and tested.
Unless those matters are put to us, we will not be in a position to respond effectively and provide our clients with effective and meaningful advocacy. In this particular case, the s375 certificate mentions that disclosing the information would be contrary to the public interest because the information was provided in confidence and the provider of the information has not consented to the disclosure of the information to the review applicant.
Without having the exact information, the review applicants cannot present their case before the Tribunal and the information will remain untested. It would be contrary to the principles of natural justice for the Tribunal to accept untested information and rely on it to make a decision.
However, we appreciate if the Tribunal wanted to protect the identity of the informer and we rely on the Tribunal's assurance that the Tribunal will not rely on the information protected by the Certificates to make a decision in this matter.
The applicant appeared before the Tribunal by video on 29 May 2023 to give evidence and present arguments. He was assisted with an interpreter in the Punjabi and English languages. His representative attended the hearing.
He was given until 14 June 2023 to respond further to any of the s.359AA matters raised and to provide evidence that his spouse is soon to have their second child and she has completed 75% of her Bachelor of Accounting.
The applicant responded on 8 June 2023 with evidence of his and his spouse’s active community involvement as volunteers, preparing and delivering food at the Gurdwara Sri Guru Granth Sahib, evidence his spouse is enrolled in a Bachelor of Accounting at Holmes Institute and is expected to finish the course on 15 November 2023 and evidence she has completed 21/24 units in this course and evidence the applicant’s spouse is due to give birth to their second child on 27 August 2023. There is also evidence before the Tribunal that the applicant’s spouse has already paid $54,862.50 towards the Bachelor of Professional Accounting which she has studied from 22 July 2019 to date.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa
s.375A and s.376 Certificates of Non-Disclosure
The Tribunal wrote to the applicant advising that there is a s.375A Certificate and a s.376 Certificate on the Department’s file which it considered are both valid. At the hearing the Tribunal advised that it considered the certificates to be valid. It referred to its previous letter sent to the applicant in regard to the certificates which outlined the reasons given by the Department for the certificates and attached them. When discussed at hearing the applicant concurred that the certificates are valid.
It outlined at hearing, via the process outlined in s.359AA, the gist of the information being that on 22 September 2020, an investigation by the New Delhi Post found that the Government of India Registration Certificate (also known as a GSTIN Business certificate) for Sanguru Marble and Sanitation the applicant submitted in support of his Visitor visa application was non-genuine, as the Registration number on the certificate was unable to be verified and there is no web presence of the claimed business. It also noted information in the non-disclosure certificates relates to internal correspondence as to identifying non-genuine information and documents from a range of people, including the applicant.
The applicant responded orally at hearing stating he did not ever work at or own a business called Sanguru Marble and Sanitation and the information in his Visitor visa application was false, and the attached Registration Certificate for this business is not genuine. He claimed that it was prepared and submitted with his application by his agent without his knowledge.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
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. Section 107A refers to non-compliances in respect of any previous visa held by the applicant.
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.
Did the notice comply with the requirements in s.107?
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.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and s.103. Section 107A notes that the possible non-compliance that may be specified in a s 107 notice can include non-compliances in a previous visa held by the person.
On 26 June 2019 the applicant made an application for a Visitor visa which was granted on 28 June 2019 and valid to 18 October 219. He arrived in Australia on 18 July 2019. On 9 September 2019 the applicant made an application for a Student (Higher Education Sector) (Subclass 500) visa as a dependent with his spouse Ms Gagandeep Kaur as the primary applicant. On 23 October 2019 the visas were granted valid to 15 September 2022.
The applicant provided the Tribunal with a copy of the letter Notifying him of the Cancellation of his visa under s.109. The Department decision notes that in the NOICC dated 21 February 2022, the delegate set out the particulars of the non‑compliance being that on 26 June 2019 the applicant lodged a Visitor (class FA / subclass 600) visa application and in support of the application, he completed a form ‘Application for a Visitor Short Stay Visa’. In that application he provided the following answers (in bold):
Visa applicant’s current overseas employment (page seven)
Current employment details
Employment status: Self employed
Occupation grouping: Other
Occupation: BUSINESS – MARBLE AND SANITATION
Organisation: SABGRUR MARBLE AND SANITATION
Start date with current employer: 10 Jan 2012
Declarations (pages 10 and 11)
Warning: Giving false or misleading information is a serious offence. The applicants declare that they:
Have read and understood the information provided to them in this application.
Yes
Have provided complete and correct information in every detail on this form, and on any attachments to it.
Yes
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.
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
Yes
In support of the applicant’s previous Visitor visa application, he also submitted a Government of India, Registration certificate, Registration number: 03BNKPB2717F1Z2, deemed approval 15 April 2018 for Trade name ‘Sanguru Marble & Sanitation’ issued to Baljinder Singh Buttar (Legal Name), being the applicant’s name.
The NOICC indicated that based on the information the applicant was granted a Visitor visa on 28 June 2019.
The NOICC noted that on 22 September 2020, an investigation by the New Delhi Post found that the above Government of India Registration Certificate (also known as a GSTIN Business certificate) for Sanguru Marble and Sanitation he provided in support of his Visitor visa application was non-genuine, as the Registration number on the certificate was unable to be verified and there is no web presence of the claimed business.
The NOICC noted that:
Based on the above information, I consider that you have not complied with sections 101(b) and 103 of the Act. Therefore, I consider that there may be grounds for cancellation of your Student (class TU / subclass 500) visa under section 109 of the act, partly relying upon the provisions of section 107A of the Act.
In his response to the NOICC the applicant’s previous representative provided the Department with a submission which noted that the applicant is married and his spouse is living in Australia on a full-time basis and they have a young child born on 1 March 2021 in Australia. He submitted
There is no evidence that visa applicants have has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to this visa application or any previous visa application.
Visa applicant has contacted his offshore agent who made an application on behalf of the visa applicant from India very first time and the agent recently are under investigation and are charged with certain offences regarding visa fraud matters.
Visa applicant fears that even though he has not provided the DoHA with any bogus documents however, her agent who applied his visa may have altered the documents when lodged application with DoHA to secure the positive visa outcome so could charge the applicants their fees as they were going to be paid only when visa was approved.
While PIC 4020 (1) refers to information that is false, in the sense of purposely, it is not necessary for the minister to conclude that the applicant was aware of the information was purposely untrue in order for PIC has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract operation of provision. Trivedi VMIBP [2014] FCAFC42.
Visa applicant is fully aware of the fact that DoHA has records of the visa applications made in the past and so is their outcomes. There is no suggestion in this matter that visa applicant personally has provided bogus documents in association with his visa application. We request case officer to review all the information before them and consider the fact that visa applicant’s previous behaviour towards the DoHA and his compliance with the visa held.
Visa holder has advised that it may be the agent who has given the DoHA the bogus documents but not the visa holder himself.
At the time of the student visa application, visa applicant has not supplied any documents that had any claim or association with the bogus business claim provided for the visitor visa application. This also gives an indication that visa holder has had no knowledge of the claim made by the ex-agent.
The agent’s action to provide DoHA with any bogus or misleading information or material should not be considered as the information provided by the visa applicant herself.
He referred to there being compelling circumstances to waive PIC 4020 and referred to the interest of an Australian citizen, Malkeet Singh who has a very close relationship with the applicant and will be affected should the visa application be refused based on the bogus information. He submitted that the applicant provides a great deal of emotional and moral support to an Australian person. The representative referred to the applicant working in an Australian business in a critical sector, being hospitality. He submitted the applicant’s presence is crucial for an Australian business and for an Australian citizen, and that he provides moral and emotional contribution to an Australian citizen. He submitted that the cancellation of his visa would lead to a significant determent to an Australian citizen. He noted that his child and spouse would be adversely affected as they are the holders of student visas.
He submitted the following documents
·Letter from the CEO of Dual Foods dated 3 March 2022 noting the applicant is employed as a casual with their company as a level 2 night shift employee.
·Payslips from the applicant’s employment with Dual Foods.
·Letter of support from Melkeet Singh who submits the return of the applicant would have a detrimental effect on his wellbeing as they have a very close bond. He claims they meet mostly on weekends and have assisted each other through Covid. He submits it would be very difficult for him not to have the applicant’s support and requested the Tribunal waive the PIC 4020 requirement.
The delegate noted that despite the applicant’s claim that an agent submitted the application and documents on his behalf, Department records and systems indicate that no agent acted or assisted the applicant with his Visitor visa application. He referred to s.103 and that an applicant must not cause such a document to be so given presented or provided.
He noted that Section 107A provides that failure to comply with subsection 101(b) and 103 of the Act in connection with a previous visa application may be grounds for cancellation of the visa holder’s current visa and as such providing incorrect information and a bogus document in the application for a Visitor visa granted on 28 June 2019 may result in the visa granted on 23 October 2019 being liable for cancellation.
The delegate found that the applicant had not complied with s.101(b) of the Act because he provided incorrect information in his application for his previous Visitor visa and was liable to be considered for cancellation under s.109 of the Act.
The delegate also found that the applicant had not complied with s.103 of the Act because he provided a document to the Department that was counterfeit or had been altered by a person who did not have authority to do so in his previous Visitor Visa application and therefore his student visa was liable to be considered for cancellation under s.109 of the Act.
Prior to the hearing the applicant provided to the Tribunal a response to the letter referring to the s.375A and s.376 Non-Disclosure Certificates to which the applicant’s representative responded on 19 May 2023 as outlined above.
Prior to the hearing the applicant submitted the following documents.
·Employment letter for the applicant’s spouse, Gagandeep Kaur, dated 5 Janaury 2023 supporting her visa application noting she is a personal care worker working at multiple aged care facilities and that it would be difficult to find a suitable replacement for her given the impact of Covid 19 and the skills shortage. Also included were her pay slips.
·Affidavit from the applicant’s father noting he is the owner of 4 acres of agricultural land and is a security guard. He noted the applicant looked after the agricultural land in 2018 – 1019.
·Untranslated documents as evidence of the family land business.
·Letter of support dated 26 May 2023 from the applicant’s employer, Rapid Car Parts noting the applicant has been working with them since the pandemic. Also provided were payslips as evidence of his employment.
The applicant’s representative in a submission dated 22 May 2023 submitted that the applicant’s Visitor visa application was prepared by an agent in India. He noted that the applicant was helped by his agent, Mandeep Singh, who is currently subject to investigation and has been charged with various offences relating to visa fraud. He raised that the agent without the knowledge of the applicant submitted the incorrect information and non-genuine document. He submitted that when the applicant received the NOICC he was shocked as he did not know the incorrect information and bogus document had been submitted. He also provided information relating to the discretionary criteria.

At hearing the applicant confirmed that the information provided in the application, and the registration document were false as he had never owned or worked at Sanguru Marble and Sanitation. He confirmed incorrect information as per s.101(b) and a bogus document as per s. 5(1) and s.103 had been provided and submitted with his application for the Visitor visa.
He said he approached an agent to prepare the application. He said he gave him correct information as to his employment. He said he did not know that he had provided false information in the application with regard to his employment and his ownership of Sanguru Marble and Sanitation. He said he met with the agent on one occasion.
The Tribunal raised with him via s.359AA that the application as well as Department records do not refer to an agent assisting him with his Visitor visa application. It referred to the Visitor visa application and noted that he is the authorised recipient of correspondence.
He said and confirmed he entrusted submission of the application to the agent and did not read the application form submitted. He said he met with him for one day and received the visa soon after. It raised with him that it did not appear he had taken steps to ensure the application and information provided was genuine and that he was indifferent to whether it was a genuine application.
It raised with him s.98 of the Act.
The Tribunal has considered the applicant’s contention that he engaged an agent in India to act on his behalf in relation to the Visitor visa application, to whom he paid a fee for the service, and that he was under the impression that the information and documents submitted on his behalf were those that he had provided to the agent. In essence, the applicant claims to have had no knowledge of the incorrect information provided in the visa application form or the non-genuine document that had been submitted with the application.
The Tribunal observed that the visa application form does not indicate that any agent was acting on behalf of the applicant in relation to their visa application. However, this does not necessarily undermine the applicant’s claims to have engaged an agency to act on his behalf. The visa application form was electronically generated and lodged online and could have been completed and lodged by a person other than the applicant. Furthermore, the applicant provided evidence regarding his dealings with the agency in India, including details of the agency’s name. On that evidence, the Tribunal accepts that the applicant had engaged an agent to act on his behalf in relation to the Visitor visa application.
Whether he knew or did not know of the provision of the incorrect information is not relevant because under s. 98, an applicant who does not fill in his application form is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf and under s.99 of the Act any information that the applicant gave or provided or caused to be given or provided on his behalf, to an authorised system (the online application) is taken for the purposes of s.101(b) to be an answer to a question in the applicant’s application form. Further, s.100 provides that 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.
Therefore, as the agent was acting on behalf of the applicant and the applicant instructed him to prepare and lodge the application for a student visa on his behalf, he caused him to provide the answers in the visa application that was provided through the Department’s authorised system. The information is therefore incorrect even if the applicant did not know that it was incorrect. Further, s.101 of the Act puts the onus on the applicant to fill in or complete his application form in such a way that all questions on it are answered and no incorrect answers are given or provided.
It is therefore not relevant, for the purpose of establishing whether there was non-compliance as described in the notice, whether or not the applicant had knowledge of the information that was provided on his behalf by the agent.
The applicant did not dispute or challenge the information discovered by the Department indicating that Sanguru Marble and Sanitation does not exist with the conclusion that the applicant did not work or own this company in the position and time period claimed in his application for the visa. The Tribunal finds on the evidence before it that the answers in the visa application form about the applicant having worked at and owning Sanguru Marble and Sanitation is incorrect. It follows that there has been non-compliance by the applicant with s.101(b) of the Act in the way described in the notice.
The Tribunal also finds on the evidence before it that the Registration Certificate regarding Sanguru Marble and Sanitation submitted with the application is a document that the Tribunal reasonably suspects is counterfeit. It follows that the letter provided with the visa application is a bogus document as defined in s.5(1)(b) of the Act.
The evidence before the Tribunal indicates that the applicant relied entirely on the agent, without question or concern, to prepare and lodge the visa application on his behalf. He met with the agent once and did not check what was submitted in the application and did not ‘second guess’ what he was doing. The evidence indicates that the applicant trusted his agent implicitly to take care of the application and secure him a Visitor visa. The Tribunal considers that the applicant had little concern or interest in what information or documents were being provided on his behalf so long as it achieved the desired outcome of a Visitor visa.
On the evidence before it, the Tribunal is also satisfied that the applicant had authorised the agent to act on his behalf, and had relied entirely on the agent to take care of the application without checking or verifying what was being lodged on his behalf. In the circumstances, the Tribunal considers that the applicant has provided, or caused to be provided, to an officer, authorised system or the Minister bogus documents. 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.
For the above reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. The Tribunal has considered each of the circumstances as follows.
The Tribunal raised these with the applicant at hearing and the evidence provided as well as written evidence provided is considered below.
The correct information
The correct information is that the applicant did not work or own Sanguru Marble and Sanitation in the position or period claimed. The applicant’s employment and ownership of a business would have been relevant as to whether the applicant intended to stay in Australia temporarily as required by cl.600.211. The submission of incorrect information and a bogus document would have also been relevant to the grant of the student visa as cl.500.317 requires the applicant to meet PIC 4020.
As outlined above, the Tribunal has considered the totality of the evidence and the Tribunal has found that the application for the Visitor visa was completed and submitted by an agent in India, even though there is no evidence of one in the application form. It notes that he met with the agent on one occasion, authorised the agent to act on his behalf, and relied entirely on the agent to take care of the application without checking or verifying what was being lodged on his behalf. It is of the view the applicant was indifferent as to what was placed in the application,
The integrity of the migration program relies on, amongst other things, applicants providing correct information in visa application forms and in their dealings with the relevant agencies including the Department. Sections 98 to 100 reflect the seriousness of the provision of the incorrect information even in situations where there was no intention to provide incorrect information.
The Tribunal gives this factor some weight in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The content of the genuine document (if any)
The employment Registration Certificate for Sanguru Marble and Sanitation provided with the visa application is a bogus document. The applicant confirmed this at hearing which aligns with the information provided by the Department’s Integrity Unit. A genuine document would not show that the applicant worked or owned Sanguru Marble and Sanitation as his evidence is he never worked there, never owned it and worked on the family land in India prior to his departure.
There is therefore no genuine document to consider.
The Tribunal gives this consideration neutral weight.
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
The applicant’s employment and ownership of the business Sanguru Marble and Sanitation would have been relevant as to whether the applicant intended to stay in Australia temporarily as required by cl.600.211. The submission of incorrect information and a bogus document would have also been relevant to the grant of the student visa as cl.500.317 requires the applicant to meet PIC 4020.
As outlined above, the Tribunal has considered the totality of the evidence and the Tribunal has found that the application for the student visa was completed and submitted by an agent in India, even though there is no evidence of one in the application form. It notes that he met with the agent on one occasion, authorised the agent to act on his behalf, and relied entirely on the agent to take care of the application without checking or verifying what was being lodged on his behalf. While he did not knowingly provide false evidence, he was indifferent to what was being submitted.
The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred are outlined above. Essentially, the applicant submitted in his evidence to the Tribunal that the incorrect information and bogus document were submitted without his knowledge by his agent in India.
As outlined above, the Tribunal has considered the totality of the evidence and the Tribunal has found that the application for the student visa was completed and submitted by an agent in India, even though there is no evidence of one in the application form. It notes that he met with the agent on one occasion, authorised the agent to act on his behalf, and relied entirely on the agent to take care of the application without checking or verifying what was being lodged on his behalf. While he did not knowingly provide false evidence, he was indifferent to what was being submitted.
The Tribunal gives this factor some weight in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The present circumstances of the visa holder
At hearing the Tribunal discussed in detail the applicant’s present circumstances.
The evidence indicates the applicant travelled to Australia on 9 September 2019 and made an application for a Student visa as a dependent of his spouse Ms Gagandeep Kaur as the primary applicant which was granted on 23 October 2019 valid to 15 September 2022. His spouse’s Student visa was cancelled by the Department on 1 September 2022 for providing incorrect information and bogus documents in her application for her Visitor visa made on 26 June 2019 and granted 23 October 2019. Since the applicant’s hearing the Tribunal has set aside this decision and substituted a decision not to cancel his spouse’s student visa. She applied for a further Student visa on 27 June 2022
The evidence indicates that his wife applied for the Student visa in 2019 to undertake a Bachelor of Professional Accounting. The documentary evidence indicates she has completed 87.5% of this course, some subjects with a distinction grade and has so far paid $54,862.50 to undertake this course. The evidence from her education provider, Holmes Institute is that she is expected to finish the course on 15 November 2023. The Tribunal has accepted that her purpose of staying in Australia is to complete her study and she has a compelling need to do so on the basis she has completed 87.5% of the course and paid such a considerable sum. The applicant at hearing said on completion of the course they will return to India.
The applicant has also provided evidence that he and his spouse, Gagandeep Kaur have a daughter born in Australia on 1 March 2021 and that they are expected to have a further child on 27 August 2023.
A hearing he gave evidence of the need to support his spouse and children.
The Tribunal accepts that there is a compelling need for the applicant to stay in Australia and to support his spouse, newborn child due in August, young daughter and to support his spouse to complete the Bachelor of Professional Accounting course.
It has considered his current employment and his relationship with his friend in Australia but does not place weight on these factors.
Notwithstanding for the other reasons outlined above the Tribunal considers that this factor significantly weighs in favour of the exercise of the Tribunal’s discretion not 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
Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance by the applicant known to the Tribunal.
The time that has elapsed since the non-compliance
The non-compliance occurred when the application was made for the visitor visa on 26 June 2019. The Tribunal considers that almost 4 years has passed since the non-compliance.
In these circumstances the Tribunal gives this some weight against cancellation.
Any it is breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal which suggest that there have been breaches of law by the applicant since the non-compliance.
Any contribution made by the holder to the community.
At hearing the applicant indicated he contributed to the community as a volunteer at the Sikh temple. Following the hearing he provided a letter confirming his and his spouse’s active community involvement as volunteers, preparing and delivering food at the Gurdwara Sri Guru Granth Sahib. The Tribunal gives this consideration some weight against cancelling the visa.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural 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.
Whether there would be any consequential cancellations under s.140
The applicant is married with a daughter. They are not part of this decision and the Tribunal has recently set aside the decision to cancel his spouse’s visa. There is therefore no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore. There is no restriction on which visa he can apply for once he leaves Australia. However, those are also intended and legitimate consequences of cancellation.
The Tribunal gives this consideration neutral weight in favour of cancelling the visa.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture. The applicant’s daughter is not an Australian citizen.
The Tribunal gives this consideration neutral weight in favour of cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal has carefully considered all the evidence before it and weighed up the relevant circumstances. The Tribunal considers that the applicant’s present circumstances, including the significant hardship that his family will experience if his visa is cancelled and his spouse is left to have their second child alone and look after their first child significantly weight in favour of not cancelling the visa. It is of the view the cancellation of his visa will place considerable hardship on his family and particularly on his spouse who is 87.5% though her bachelor course and has paid $50,000 to complete this course and will need his support in Australia to complete the course.

While, The Tribunal further considers that cancellation will not necessarily result in the separation of the family unit long term, because all members of the applicant’s family would be able to return to India and re-establish themselves there; it considers the hardship caused in the short term to be significant as it accepts his spouse could not complete her study and look after their daughter and newborn child alone.
Against these factors, however, are the circumstances in which the non-compliance occurred and the content of the bogus document. While the Tribunal has accepted that the applicant did not prepare the bogus document himself or provide the incorrect information, the Tribunal considers that the applicant had little concern or interest in what information or documents were being provided on his behalf so long as it achieved the desired outcome of a Visitor visa.
Having carefully considered the applicant’s circumstances individually and cumulatively, the Tribunal is satisfied that there are aspects that are significantly favourable to the applicant as outlined above
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Gabrielle Cullen
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.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
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.

[2023] AATA 3233

6 July 2023

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