Chahal (Migration)

[2023] AATA 1061

Chahal (Migration) [2023] AATA 1061 (15 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurwinder Singh Chahal

REPRESENTATIVE:  Mr Harmeet Singh Uppal (MARN: 1680557)

CASE NUMBER:  2204567

HOME AFFAIRS REFERENCE(S):          BCC2022/318645

MEMBER:Christine Kannis

DATE:15 April 2023

PLACE OF DECISION:  Perth

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

Statement made on 15 April 2023 at 6:30am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – bogus document – employment offer – financial hardship – accusation against a migration agent – all enrolments cancelled – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 189, 359
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (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  (the Act).

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

3. The applicant appeared before the Tribunal by MS Teams video on 27 March 2023 to give evidence and present arguments.

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 1 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 2 March 2022, the applicant replied by email and provided his current address and email address. The s 107 notice dated 4 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.

   Background

10. In his Application for a Student Visa lodged on 27 October 2021, on pages 8 and 9, under the heading Employment history details, the applicant provided the following information:

    Employment status: Employed

    Is this the applicant’s current employment situation: Yes

    Employer/business details

    Give detail of the employer/business:

    Organisation name: Sapphire Foods India PVT Ltd

    Industry type: Accommodation and Food Services

    Organisation Address

    Note that a street address is required. A post office address cannot be accepted an as organisation address.
    Country: India
    Address: 131, 13^th Floor, Free Press House, 215 Nairman Point
    Suburb/Town: Mumbai
    State or Province: Maharashtra
    Postal code: 400021

    Contact person details

    Give details of the contact person within the organisation.

    Family name: Kaira

    Given names: Simran

    Business phone: [phone]

    Mobil/Cell phone: [phone]

    Position details

    Position: Customer Service Associate

    Date from: 16 Oct 2017

11. In his Application for a Student Visa lodged on 27 October 2021, on pages 13 and 14, under the heading Declarations, the applicant provided the following answers:

    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 documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. Yes

12. In support of his application for the visa, the applicant submitted an Offer of Employment from Sapphire Foods India Ltd sent to Gurwinder Singh for the position of Customer Service Associate dated 16 October 2017.

13. On the basis of the above information, as well as meeting all other relevant criteria, the applicant was granted a Student visa on 5 November 2021.

14. Following the grant of the visa, verification checks were undertaken by the Department in respect of the letter from Sapphire Foods India Ltd. A representative of Sapphire Foods India Ltd was asked to verify the letter and the applicant’s employment.  The representative confirmed in writing on 8 February 2022 that the letter was not issued by the company and as such the applicant’s claim of employment there was not genuine.

15. Given the inconsistencies in the information provided by the applicant in his application and the letter from Sapphire Foods India Ltd, the non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101(b) and 103 of the Act in the following respects:

    Alleged non-compliance with s 101(b)

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

17. The non-compliance identified as non-compliance with s 101(b) was: 

    • The applicant provided incorrect answers in his Application for a Student Visa when he:

    (i)provided details on page 8 and 9 of the visa application form, under the heading Employment history details, stating he was employed by Sapphire Foods India PVT Ltd in the Accommodation and Food Services industry as a Customer Service Associate from 16 October 2017; and

    (ii)declared that the information he provided was complete and correct information in every detail on the form, and on any attachments to it under the heading Declarations.

18. Section 99 of the Act provides that any information 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 s.101, paragraphs 101(b) and 102(b) and ss. 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.

19. Section 100 of the Act 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.

20. The information was considered to be incorrect because information was received by the Department from a representative of Sapphire Foods India Pty Ltd that the applicant was not employed by the company. Therefore, the information the applicant provided that his employment with Sapphire Foods India PVT Ltd as a Customer Service Associate from 16 October 2017 was incorrect.

    Alleged non-compliance with s 103

21. 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.

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

    • The applicant submitted the following bogus document:
    • Offer of Employment from Sapphire Foods India Ltd for Customer Service Associate dated 16 October 2017.

23. The document was considered to be bogus because a verification check undertaken by the Department with a representative from Sapphire Foods India Ltd found that the letter was not issued by the company. On this basis the Department reasonably suspected the document was counterfeit or had been altered by a person who did not have authority to do so.

    Response to the s 107 notice

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

    • He was not given the details of the information or employment documents provided with his visa application. He was under the impression that only the documents provided by him were used by the agent in his visa application and was not aware of the information and documentation used by the agent.
    • He and his family were focused on obtaining the relevant documentation and information for the application and it never occurred to them that they should have been more cautious of the process followed by the agent. They trusted the agent as they had not previously experienced or come across such an incident.
    • Because many Indian migration agents are unregistered and do not follow the standards set for lodging visa applications, not all international students are aware of the right procedure for completing an application.
    • It was only when the NOICC was issued that he became aware of the situation.
    • His non-compliance was due to his vulnerability as he was young and from an agricultural background and was not familiar with the actions of the agent. He did not read the application and expected the only documents that would be part of his application would be the ones he provided to the agent. He could not control the actions of the agent as he processed the application.
    • He always wanted to study overseas and he is now settled and successfully undertaking his study.
    • He acknowledges his mistake by not reading the application before it was lodged and he is aware he should use a registered and trustworthy agent and find out the details of the visa application before it is submitted.

    ·Cancelling the visa would cause him financial, emotional and psychological hardship and ruin his career and his future as a qualified chef and a restaurant owner.

    ·His family would suffer financial loss and are concerned regarding his status in Australia.

    ·The stress from this situation “can bring him down in confidence”. Completing his studies would bring his family pride.

    Evidence provided prior to the hearing.

25. Prior to the hearing the applicant provided the following additional documents including but not limited to screenshots (referred to below), emails, Impact Redefining Success Institute of English page showing congratulations to the applicant on his study visa, undated Family details form, passport, educational documents, National ID cards and the applicant’s father’s Income Tax return.

26. A written submission from the representative was also provided. The written submission included information not materially different from the information provided in the response to the s 107 notice and the following information:

    ·In August 2021, the applicant applied for his Student visa from an overseas agency, Impact Institute of English in India. He was advised he would be enrolled in the top hospitality institute in Australia. He was asked to write a Statement of Purpose and he also provided requested documents. He was informed on 5 November 2021 that his student visa had been granted.

    ·The agent also operates a PTE and ILETS training institute in India. After the applicant received the required PTE score, the agent applied for his admission to Le Cordon Bleu institute in NSW. On 12 November 2021 the agent sent the applicant CoEs, Visa grant notice and OSHC by email.  

    ·After the visa was granted, the applicant was provided with an email address created by the agent. He was advised by his agent that the new email is for the institute to communicate with him. The email address and password were provided to enable the applicant to attend an online orientation webinar on 25 November 2021.  When the applicant received the NOICC, he tried to change the password for the email address and found the details for the recovery email and phone number were for the staff member of the overseas agent. The applicant was not aware of the visa application details entered by the agent as he did not have access to the visa application. The applicant had informed the agent of his actual activity which was helping his father with his family business (farming) after his studies.

    ·The applicant paid the agent a fee for the visa filing process. The overseas agent is not a registered migration agent. The applicant had no control over the information provided by his agent and relied on him to submit his visa application. The applicant has emails and documents sent to the agent which include his Passport, Educational documents, National ID cards, his Father’s National ID card and Income Tax return (documents provided with submission also). In a separate email he sent the Family details form to the agent. The applicant has never heard of the company Sapphire Foods India PVT Ltd provided in the employment section of his visa application.

    ·After arriving in Australia, the applicant started study at Le Cordon Bleu in January 2022 and shortly thereafter he received the NOICC. He called his parents and asked them to visit the agent and find out about the information in the visa application. His parents visited the agent and were advised that they are only subagents and that the applicant’s file was lodged by another agent. It was that second agent who had provided the Department with the employment letter and mentioned it in the visa application.

    ·After reading the NOICC, the applicant found that the information and documentation related to his employment provided in his visa application was not provided by him and was provided by his agent in India. He feels he has been cheated by this agent who provided incorrect information and bogus document to the Department.

    ·The applicant is a 22 year old Indian citizen and was not aware of the details of his Student visa application.

    ·It is a very common practice for the agents in India to not provide application details to students. There are thousands of agents in India who are not registered with any authority and do not follow the standards set by the OMARA and the Department of Home Affairs for lodging visa applications and not all international students are aware of the right procedure and steps to be followed while lodging visa applications.

    ·If the Tribunal affirms the decision, the applicant and his family will face financial, emotional and psychological hardship and the applicant’s career and his educational future will be ruined. The applicant’s  parents have spent their hard-earned money for his further study and are concerned about his future and his study in Australia.

    ·The applicant’s family have high hopes that he will complete his studies. The applicant has been thorough a lot of stress after finding out the details of the visa application and how he was cheated by the agent in India.

    Evidence provided at hearing

27. The applicant told the Tribunal that he met with an agent in India based on a referral by a relative. He said he was not aware of the visa application process and after he provided information and documents to the agent, he was reliant on the agent to use that information and the documents. He said he was not aware that the agent had provided incorrect information and a bogus document in his visa application and that this was out of his control.

28. 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 did not ask and trusted the agent. The Tribunal put it 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 of the visa application process.

29. The applicant told the Tribunal he paid the agent in India a fee for his services.

30. The applicant’s response to the s 107 notice stated that he is now settled in and is successfully undertaking his study. Utilising the s 359AA of the Act procedure, the Tribunal put to the applicant that his PRISMS record shows all his CoEs have been cancelled or are inactive and he has not successfully completed a course. PRISMS show that when he arrived in Australia he commenced study in a Certificate III course but this enrolment was cancelled on 25 March 2022 and on 25 March 2022 CoEs for Certificate III in Light Vehicle Mechanical Technology and Certificate IV in Automotive Mechanical Diagnosis courses were created. Noting the statement in the s 107 response that the applicant was settled and successfully undertaking study and the PRISMS record which showed he changed his area of study shortly after the cancellation decision, the Tribunal asked the applicant about the change and his current intended field of study. In response, the applicant said he initially studied cookery but he became a little bit confused about his career and decided to change to the automotive industry because of his farming background. He said he subsequently reverted to wanting to study cookery. The applicant said after his Student visa was cancelled, he was granted a Bridging A visa and has not been allowed to undertake study.

31. In response to the Tribunal asking the applicant how he has financially supported himself since the cancellation, he said his father earns well from farming and therefore he has been financially supported by his family.

32. In response to the Tribunal asking the applicant how he has spent his time since the cancellation, he said during the day he mostly goes to the Community Temple and undertakes Google searches about world issues and at night he goes to the playground and plays volleyball.  He said he helps prepare and serve food at the Community Temple and helps people there.

33. When asked about the hardship that may arise from the cancellation of the student visa, the applicant told the Tribunal that he and his family have suffered stress about the cancellation because he wants to resume his studies and return home and open a restaurant. The Tribunal asked the applicant whether there was any other hardship, including financial hardship, which may be caused by the cancellation. In response, the applicant said there was no other hardship and financial hardship would not arise because his father earned well from his farming business.

34. The applicant told the Tribunal that when he tried to access his visa application details after receipt of the s 107 notice, he was initially unable to do so because the email address provided had been created by the agent and the recovery email and phone number was for a staff member of the overseas agent.

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

   ·    It is a normal practice in India for an agent not to disclose the visa application details submitted to the Department.

   ·    The applicant relied on the agent because he was referred by a relative.

   ·    The applicant was young and now knows he should have checked the information and documents provided to the Department.

   ·    There is no regulatory authority in relation to agents in India.

   ·    Ninety per cent of visa holders from India do not know what information and documents are provided to the Department by an agent.

   ·    Despite his changes in his field of study, the applicant’s firm intention is now to study cookery.

   ·    The provision of incorrect information and a bogus document to the Department was outside the applicant’s control.

   Non-disclosure certificate

2. At the hearing the Tribunal told the applicant that a non-disclosure certificate had been issued by the delegate under s 376 of the Act.  The reason disclosure of the material would be contrary to public interest was stated to be that the contents of the documents would prejudice an ongoing investigation and contains the information of third parties unrelated to the proceedings. The Tribunal decided the certificate contains a valid ground of public interest immunity not to disclose the information. The Tribunal asked the applicant whether he wished to comment on the validity of the certificate. After a short discussion with his representative the applicant said he had no comment on the validity of the certificate.

3. The Tribunal noted that disclosure of the information covered by the certificate is discretionary. The Tribunal stated that it would let the applicant know the ‘gist’ of the information that was subject to the s 376 certificate.  Given the information was adverse, the Tribunal put the information to the applicant under s 359AA of the Act at the hearing. The Tribunal put to him that the information related to an investigation into the Indian Student visa fraud targeting Le Cordon Bleu ,an Australian education provider.  In the course of the investigation several student visa holders who provided fraudulent documents in Student visa applications were identified including the applicant. In response, the applicant told the Tribunal that the agent in India told him about Le Cordon Bleu. The representative told the Tribunal that the applicant did not know about the investigation.

4. The Tribunal noted that the information in the s 376 certificate which was relevant to the applicant was also contained in the delegate’s decision. Accordingly, the relevant information has been considered by the Tribunal in making its decision and the Tribunal accepts and attaches some weight to the information that several student visa holders provided fraudulent documents targeting Le Cordon Bleu.

   Conclusion on non-compliance

5. The applicant did not dispute that he provided incorrect information. On the evidence before it, the Tribunal finds that the applicant’s answers on his visa application form stating he had worked for Sapphire Foods India PVT Ltd as a Customer Service Associate from 16 October 2017 was incorrect.

6. Further non-compliance with s 101(b) of the Act was identified and particularised in the s 107 notice because the applicant answered Yes to the Declarations that he agreed to provide correct and up to date information. The information regarding his position, commencement date, salary and mode of payment was incorrect information.  The Tribunal further finds that by declaring that the information he provided was complete and correct information in every detail on the form and on any attachments to it, he provided an incorrect answer. 

7. Accordingly, the applicant has not complied with s 101(b) as described in the s 107 notice.

8. The applicant did not dispute that he provided a bogus document. The Tribunal finds that the Offer of Employment letter from Sapphire Foods India Ltd dated 16 October 2017 is a bogus document because a representative from Sapphire Foods India Ltd advised that the letter was not issued by the company. Therefore, the Tribunal reasonably suspects that the letter 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 letter is counterfeit within the meaning provided by paragraph (b) of section 5(1) of the Act.

9. Accordingly, the applicant has not complied with s 103 as described in the notice.

10. The applicant submitted that he entrusted his application to an agent and was not familiar with the content of his application. The applicant provided to the Tribunal documents showing his interactions with Impact Redefining Success Institute of English and 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 ss 98 and 100 of the Act make it clear that it is not necessary for the applicant to be personally involved in the fraud, nor even to be aware of it, for the grounds for cancellation to be established.

11. For these reasons, the Tribunal finds that there was non-compliance with s 101(b) and s 103  by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

12. 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).

13. 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).

14. 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.

15. 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

16. The correct information is that the applicant was not employed by Sapphire Foods India PVT Ltd as a Customer Service Associate from 16 October 2017 as stated by the applicant in his Application for a Student Visa.

17. In the response to the s 107 notice, the applicant said that he was previously employed in the agriculture industry and not in the hospitality industry as a Customer Service Associate.  This correct information was not provided

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

    The content of the genuine document (if any)

19. 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

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

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

    The circumstances in which the non-compliance occurred

22. The applicant’s explanation for the incorrect information and the bogus document is that he relied on an agent and therefore the provision of the information and document were out of his control. Whilst the Tribunal accepts that an agent 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 was being submitted on his behalf. The applicant could have made inquiries with the agent, particularly before the application was made and the agent’s fee paid, and he could have made a request to check the entire application before its lodgement. In the Tribunal’s view, it was his responsibility to do so to ensure that any information that was being submitted on his behalf was correct and accurate. The application was an official document submitted for a serious purpose. 

23. The representative told the Tribunal that it is common in India for visa applicants to not be aware of the information submitted to the Department and said there is no body to  regulate the conduct of offshore agents. The Tribunal accepts that is the case and as noted, accepts that the applicant had an agent who assisted him with the application, however in the Tribunal’s view, that does not diminish the applicant’s own responsibility for the content of his application.

24. The representative also told the Tribunal that the applicant was young and now knows what he should have done. The Tribunal does not accept that submission. In the Tribunal’s view, if the applicant was old enough to travel to and live in a foreign country and undertake study,  he would have sufficient life experience to ensure the accuracy of his visa application. The Tribunal accepts the applicant’s evidence that the agent created an email address and password for him but he was not aware of the visa application details entered by the agent as he did not have access to the visa application. 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 genuine information and documents.

25. For the reasons stated, the Tribunal does not accept that the provision of information and documents was outside the applicant’s control. The Tribunal finds that the applicant was negligent in his actions and recklessly indifferent in his dealings with the agent.

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

    The present circumstances of the visa holder

27. The applicant has been residing in Australia for 15 months, having arrived on 18 December 2021. The applicant told the Tribunal that after cancellation of his Student visa, he was not able to undertake study. He said he is currently living in shared accommodation with two friends. He said he spends his days at the Community Temple and undertaking Google searches and goes to the playground in the evening. He told the Tribunal he is not working and is financially supported by his family.

28. There is no evidence before the Tribunal that the applicant has any significant personal ties in Australia.

29. The Tribunal accepts that the impact of cancellation of the visa is that the applicant will be unable to resume study. 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

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

31. 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

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

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

    The time that has elapsed since the non-compliance

34. The applicant provided the bogus document and incorrect answers on his application form submitted to the Department on 27 October 2021. The Tribunal accepts that it is 16 months since the events of non-compliance occurred, however does not consider this to be a significant amount of time.

35. 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

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

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

    Any contribution made by the holder to the community

38. The applicant told the Tribunal he attends the Community Temple and helps prepare and serve food. No evidence was provided to substantiate this claim however the Tribunal accepts that the applicant makes some contribution to the community through his Community Temple work.

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

40. 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

41. 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

42. 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.

43. 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. 

44. 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.

45. 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.

46. 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

47. The applicant told the Tribunal that since cancellation of the visa, he and his family have experienced stress. When asked about whether any other hardship, including financial hardship, would be caused by cancellation of the visa, the applicant responded that the only hardship would be emotional stress.

48. 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 cancellation of the visa will mean the applicant will be unable to complete his study and return to India with a hospitality qualification. He told the Tribunal he wishes to open a restaurant in India.

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

    Conclusion on the exercise of the discretion

50. 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 101(b) and s 103 of the Act.

51. 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. These are factors that suggest that the visa should not be cancelled.

52. 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.

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

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

55. 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

56. 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.

    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.