Gagandeep Kaur (Migration)

Gagandeep Kaur (Migration) [2023] AATA 3235 (6 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Gagandeep Kaur
REPRESENTATIVE:  Mr Dildeep Singh (MARN: 1281067)
CASE NUMBER:  2213154
HOME AFFAIRS REFERENCE(S):          BCC2020/2375773
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 1:49pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in previous visa application – claimed employment – bogus document – No Objection Letter (NOC) – appointment letter – payslips – consideration of discretion – grant of visa based on incorrect information – indifference towards information submitted by the agent – present circumstances of the visa holder – course near completion – impending birth of second child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 103, 107, 107A, 109, 359AA
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 she made an application for a Visitor visa which was granted on 28 June 2019 and valid to 18 October 219. She 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 the primary applicant. On 23 October 2019 the visa was granted valid to 15 September 2022. She provided a birth certificate indicating she has a daughter born in Australia on 1 March 2021 and is expecting a second child on 27 August 2023.
On 12 July 2022, the delegate sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC) of her student visa under s.109 of the Act and informed her that a response must be provided in writing within 14 calendar days after she was taken to have received the letter.
Following a request for an extension of time to respond, which was accepted, on 22 July 2022 and 25 July 2022 the applicant provided a response to the NOICC.
On 1 September 2022, the delegate cancelled the applicant’s Student visa under s.109 on the basis that she had not complied with s.101(b) and s.103 of the Act.
On 6 September 2022, the applicant applied to the Tribunal for a review of that decision nd attached the decision of the Department.
On 1 June 2023 the Tribunal invited the applicant to appear before the Tribunal by video link on 19 June 2023 at 9.30am to give evidence and present arguments relating to the issues arising in her case.
Prior to the hearing, on 13 June 2023 the applicant provided written submissions.
The applicant appeared before the Tribunal by video on 19 June 2023 to give evidence and present arguments. She was assisted with an interpreter in the Punjabi and English languages. Her representative attended the hearing.
She was given until 27 June 2023 to respond further in writing to any of the s.359AA matters raised and to provide evidence as to the fees she has paid to undertake the Bachelor of Professional Accounting.
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
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. She arrived in Australia on 18 July 2019. On 9 September 2019 she made an application for a Student (Higher Education Sector) (Subclass 500) visa as the primary applicant. On 23 October 2019 the visa was granted valid to 15 September 2022.
The applicant provided the Tribunal with a copy of the decision Notifying her of the Cancellation of her visa under s.109. The Department decision notes that in the NOICC dated 1 September 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, she completed a form ‘Application for a Visitor Short Stay Visa’. In that application she provided the following answers (in bold):
Visa applicant’s current overseas employment (page seven)
Current employment details
Employment status: Employed
Occupation grouping: Managers
Organisation: HIRA AUTOMOBILES PVY. LTD>
Start date with current employer: 1 May 2917
Organisation address:
Country: INDIA
Address: 13-B FACTORY AREA RAJSABHA ROAD
Suburb / Town: PATIALA
State or Province: PUNJAB
Postal code: 147001
In support of her Visitor visa application, the following documents were uploaded with the application relating to her claimed employment:
·No Objection Letter (NOC) dated 18 June 2019, from Hira Automobiles (Maruti Suzuki Authorized Dealer/Showroom Outlet), located at 13-B, Factory Area, Patiala, Punjab 147001 India.
·Appointment letter dated 15 April 2017, from Hira Automobiles.
·Hira Automobiles Payslips for the pay period March 2019 – May 2019.
The NOICC and the decision indicated that based on the information the applicant was granted a Visitor visa on 28 June 2019.
The NOICC and the decision noted that on 23 September 2020, the Australian High Commission in New Delhi initiated employment verification checks with Hira Automobiles (Maruti Suzuki Authorized Dealer/Showroom Outlet), located in Punjab, India, to verify the applicant’s employment claims. On 23 September 2020, Hira Automobiles contacted the Department and advised that the visa holder had never worked at their company and confirmed the documents she provided in support of her employment in her Visitor visa application were not issued by their company.
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, 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 response to the NOICC, in a submission from her representative the visa holder did not dispute the grounds for cancellation and stated she was aware of the mistake she made.
Her representative also submitted the following reasons as to why her visa should not be cancelled
·She has been studying Bachelor of Professional Accounting at Holmes College since July 2019 and has progressed through the studies.
·Her visa cancellation may cause her a great deal of stress and anxiety for her and the child.
·She may face discrimination from family and friends and even from community upon return to the home country because of student visa cancellation.
·Visa cancellation would result in separation from her spouse that will be a detrimental for her relationship.
·People in India would treat the applicant differently once she returns home with a visa cancellation and this would affect her capacity to mingle with friends and relatives.
·Family and friends would treat her as a failure, and this would have a devastating effect on her future.
·She is currently working in Australia and helping an Australian business names Dual Foods Pty Ltd. She has been helping the Australian business during the labour shortage and visa cancellation can be determinantal to Australian business.
·She is aware of the mistakes made in the past and declares that she is going to comply with all the visa conditions and any future visas granted to her.
·She is planning to continue to study and work in Australia and continue to help an Australia business. Visa cancellation will cause great deal of difficulty for the applicant, and she will not be able to survive in Australia without work.
·She has almost finished her studies and spent a great deal of time and money progressing through studies and visa cancellation will ruin her career and she will not be able to finish her studies as a result.
·She will lose her rights to move in and outside the country and this would be unfair as she has family in India and intends to travel to reunite with loved ones outside Australia.
·She has paid almost $30,000 in tuition fees.
She provided her current academic record as to studying the Bachelor of Professional Accounting from 2019 to 2022 and completing 8 units as well as payslips from Mr Donut.
The delegate noted the applicant said she was aware of the mistake and found that she had not complied with s.101(b) of the Act because she had provided incorrect information in her application for a Visitor visa as to her previous employment at Hira Automobiles and therefore her student visa was liable to be considered for cancellation under s.109 of the Act.
Based on this information, the delegate also found that the applicant had not complied with s.103 of the Act because she provided documents to the Department that was counterfeit with regard to her claimed previous employment at Hira Automobiles and therefore her student visa was liable to be considered for cancellation under s.109 of the Act.
Prior to the hearing the applicant’s representative noted as to the non-compliance that she was not aware of the information given by her agent in the Visitor visa application. He submitted that it was out of her control as her agent in India prepared the documents and he did not provide her with a copy of the documents that were submitted with the application. She said she now regrets providing the same information in her student visa application as she feared that any changes to the information provided may have caused her student application to be refused. He also made submissions with regard to the discretionary criteria which have been considered below.
He also attached the following relevant documentation.
·Holmes Institute Notification of Results for course period 22/07/2019 to 15/07/2023 with 21/24 subjects successfully completed or 87.5% of the course completed.
·Letter confirming the applicant is enrolled in a Bachelor of Professional Accounting course from Holmes Institute dated 30 May 2023. It notes she has been studying this course from 22 July 2019 and is expected to complete the course on 15 November 2023.
·Letter confirming the applicant’s employment from Barton Care dated 13 June 2023 noting the applicant has been employed since 4 August 2022 as a personal care worker in the aged care sector. The letter notes it would be difficult to find a replacement and the cancellation of her visa would have an impact on how they conduct the business and would not be in the best interest of Australian citizens as it would be difficult to find a suitable replacement.
·Applicant’s payslips from Barton Care for the periods ending; 23 April 2023, 30 April 2023 and 7 May 2023
·OSHC Verification Letter from BUPA for the period of 15/09/2022 to 14/09/2023 pertaining to the applicant, her husband and her child.
·CoE pertaining to a Bachelor of Professional Accounting [057746J] with course dates 17/07/2023 to 15/11/2023
·CoE pertaining to a Bachelor of Professional Accounting [057746J] with course dates 10/05/2021 to 15/07/2023
·Matriculation Examination Certificate with Marks Sheet pertaining to the applicant dated 26 May 2015
·Medical certificate confirming the applicant is pregnant with an estimated date of confinement of 27 August 2023.
At hearing the applicant confirmed that the information provided in the application, and the registration document were false as she had never been employed at Hira Automobiles. She confirmed incorrect information as per s.101(b) and bogus documents as per s.103 had been provided and submitted with her application for the Visitor visa.
She said she approached an agent to prepare the application and met with him twice. She said she did not review the application or the documents submitted and her motive was to obtain a Visitor visa. She confirmed she went to the agent and gave him the power to complete the application and she did not fill it in. She said she went to the agent and said she wanted a visitor visa
She said and confirmed that she entrusted submission of the application to the agent and did not read the application form submitted. It raised with her that it did not appear she had taken steps to ensure the application and information provided was genuine and that she was indifferent to whether it was a genuine application.
It raised with her s.98 of the Act and also that it appeared the applicant has provided, or caused to be provided, to an officer, authorised system or the Minister a bogus document within the meaning of s.5(1).
It also discussed with her the discretionary criteria and where relevant this evidence is outlined below.
It is not in dispute that the applicant has never worked at Hira Automobiles and the information in the Visitor visa application is incorrect and that documents pertaining to her working at Hira Automobiles are counterfeit.
The Tribunal has considered the applicant’s contention that she engaged an agent in India to act on her behalf in relation to the Visitor visa application, to whom she paid a fee for the service. In essence, the applicant claims to have had no knowledge of the incorrect information provided in the visa application form or the non-genuine documents 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 her visa application. However, this does not necessarily undermine the applicant’s claims to have engaged an agency to act on her 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 her dealings with the agency in India and has been consistent that she used an agent in India in her response to the NOICC and submissions to the Tribunal. On that evidence, the Tribunal accepts that the applicant had engaged an agent to act on her behalf in relation to the Visitor visa application.
Whether she 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 her application form is taken to do so if she causes it to be filled in or if it is otherwise filled in on her behalf and under s.99 of the Act any information that the applicant gave or provided or caused to be given or provided on her 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 her to prepare and lodge the application for a Visitor visa on her behalf, she caused to be provided 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 her 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 her behalf by the agent.
The applicant did not dispute or challenge the information discovered by the Department indicating that she did not work at Hira Automobiles in the position and time period claimed in her 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 Hira Automobiles 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 documents submitted regarding her employment at Hira Automobiles submitted with the application are documents 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 her behalf. She met with the agent twice 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 her agent implicitly to take care of the application and secure her a Visitor visa. The Tribunal considers that the applicant had little concern or interest in what information or documents were being provided on her 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 her behalf, and had relied entirely on the agent to take care of the application without checking or verifying what was being lodged on her 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 ever work at Hira Automobiles in the position or period claimed. The applicant’s employment 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 bogus documents would have also been relevant to the grant of the student visa as cl.500.217 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. It notes that she met with the agent on two occasions, authorised the agent to act on her behalf, and relied entirely on the agent to take care of the application without checking or verifying what was being lodged on her 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 following documents regarding the applicant’s employment at Hira Automobiles are bogus documents.
·No Objection Letter (NOC) dated 18 June 2019, from Hira Automobiles (Maruti Suzuki Authorized Dealer/Showroom Outlet), located at 13-B, Factory Area, Patiala, Punjab 147001 India.
·Appointment letter dated 15 April 2017, from Hira Automobiles.
·Hira Automobiles Payslips for the pay period March 2019 – May 2019.
Th applicant confirmed this at hearing which aligns with the information provided by the Department’s Integrity Unit. Genuine documents would not show that the applicant worked at Hira Automobiles as her evidence is she never worked there.
There are therefore no genuine documents 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 at Hira Automobiles 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 bogus documents would have also been relevant to the grant of the student visa as cl.500.217 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. It notes that she met with the agent on two occasions, authorised the agent to act on her behalf, and relied entirely on the agent to take care of the application without checking or verifying what was being lodged on her behalf. It is of the view the applicant was indifferent as to what was placed in the application.
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 her evidence to the Tribunal that the incorrect information and bogus documents were submitted without her knowledge by her agent in India. As outlined above, the Tribunal has considered the evidence and although the Tribunal has some doubts, on the balance of the available evidence, the Tribunal found that the application for the Visitor visa was completed and submitted by an agent in India.
It notes that she met with the agent on two occasions, authorised the agent to act on her behalf, and relied entirely on the agent to take care of the application without checking or verifying what was being lodged on her behalf. While she did not knowingly provide false evidence, she 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 to study a Bachelor of Professional Accounting. Despite her visa being cancelled on 1 September 2022 for providing incorrect information and bogus documents, she has continued to study, achieving distinctions in some subjects and has successfully completed 87.5% of this course 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. She wishes to complete the course and return to India. The Tribunal accepts that her purpose of staying in Australia is to complete her study and that she wishes to complete the course for her future career in India. Her evidence is that she will return to India on completion of the course. The Tribunal is of the view 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 has also provided evidence she has a daughter born in Australia on 1 March 2021 and that she is pregnant with her second child due on 27 August 2023. The Tribunal also accepts that there is a compelling need for the applicant to stay in Australia to give birth to her second child in August.
The applicant has also been employed since August 2022 as a Personal Care Worker and the Tribunal has received a letter from her employer as to the difficulties it will face replacing her if her visa is cancelled. As the applicant has only been employed for under a year and she would be given time to depart, thereby giving her employer time to find a replacement it places little weight on this circumstance.
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 her 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.
There is evidence before the Tribunal that she contributes to the community as a volunteer at the Sikh temple. Following the hearing of her spouse he provided a letter confirming his and the applicant’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. 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 her to finalise her 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, she would be residing unlawfully and liable to detention and removal. The applicant however provided oral evidence to the Tribunal that she 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 she 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. While the Tribunal notes she has applied for a further student visa, 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 she had any fear of returning to India the applicant said she 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 is genuine in her wish to complete the Bachelor of Professional Accounting, having completed 87.5% of the course and paid over $50,000 to complete it. It is of the view her purpose to remain in Australia is to complete her studies. IT notes her evidence she wishes to only remain temporarily in Australia to complete the course, then return to India to obtain better employment. Together with the impending birth of her second child in August it is of the view she has a compelling need to remain in Australia temporarily. It is of the view that there would be a significant degree of hardship on the applicant, her child and unborn baby if the visa was cancelled.
Against these factors, however, are the circumstances in which the non-compliance occurred and the content of the bogus documents. While the Tribunal has accepted that the applicant did not prepare the bogus documents herself 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 her 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 3235

6 July 2023

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