Gopidi (Migration)

[2023] AATA 2698

Gopidi (Migration) [2023] AATA 2698 (19 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vineeth Reddy Gopidi

REPRESENTATIVE:  Ms Samantha Vitale (MARN: 0964981)

CASE NUMBER:  2204594

HOME AFFAIRS REFERENCE(S):          BCC2021/2361523

MEMBER:Michael Bradford

DATE:19 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2023 at 2:44pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – had provided incorrect information in his application – Certificate and Transcript were bogus documents – applicant had not been enrolled since 22 October 2020 – FTA qualification was not a registered CRICOS course – breached condition 8202 – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Introduction, overview of the applicant’s review case

1. This is an application to review 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 for non-compliance with Sec 101(b) and Sec 103 of the Act based on the provision of incorrect information and bogus documents in support of a visa application filed on 18 May 2020 (the VA). The offending material related to an Advanced Diploma of Leadership and Management (ADLM) said to have been completed by the applicant at the Fox Training Academy (FTA) in January 2020. The information is contained in the VA in the section of the form headed “Education history details” where he stated that he had completed that course during the period from February 2019 to January 2020. The documents consist of a Certificate for the course purportedly issued by FTA on 13 January 2020 and a Transcript of Results which records that he had been assessed as competent in the 12 units listed for the course.

3. The visa was cancelled on 22 March 2022 after the applicant, through his Registered Migration Agent (Ms Samantha Vitale), had responded to the Notice of Intention to Consider Cancellation (NOICC) on 15 March 2022.

4. There is no issue in this case that the NOICC complied with the relevant statutory requirements and was a valid notice. Nor does the applicant now dispute that the grounds relied on by the delegate in the Notice of Cancellation (NOC) to cancel the visa in fact existed. The delegate was uncertain as to whether the applicant had made that concession in his NOICC response but, whatever may have been the position before the cancellation, Ms Vitale made it clear that he was not contending otherwise in the review.  

5. The applicant thus accepts, for the purposes of the review, that the questioned documents are bogus and that the relevant information in the VA was incorrect. His case, insofar as it relates to the circumstances in which the non-compliances occurred, is that he engaged an education agent, namely Rizwan Muzammil from HBD Services, to advise him on how he could go about obtaining the ADLM at FTA, that Rizwan gave him certain advice, that he acted on that advice, paid him money for his services and believed at all times prior to the issue of the NOICC that he had in fact obtained a legitimate qualification from that provider, albeit one which was not a registered CRICOS course.

6. Thus, the only issue which arises for determination on the review is whether the visa should   be cancelled having regard to those and other relevant circumstances.

7. The Review Application was filed on 29 March 2022 and is within time.

   Procedural aspects in the review

8. In due course a letter was sent to the applicant via his agent inviting him to appear at a telephone hearing on 13 July 2022. In response Ms Vitale indicated that she had another case listed for hearing in the Tribunal on that date and sought a postponement of the hearing in this case to enable her to participate. I acceded to that application and arrangements were made to re-schedule the hearing for 22 July 2022.

9. On 21 July 2022, the day before the re-scheduled hearing, Ms Vitale filed a Submission together with a Statement from the applicant which is incorrectly dated 20 August 2022 (it should read 20 July) which the applicant had prepared apparently for the purpose of him being interviewed by Australian Border Force investigators, an interview which appears to have taken place earlier on that date. Although this Statement refers to four annexures only two of them were provided to the Tribunal when the document was filed.

10. The applicant appeared at the telephone hearing assisted by Ms Vitale, both of whom were situated in her city office. He gave oral evidence in English without apparent difficulty for about 1 hour, assisted at times by her, the other 30 minutes being taken up in my exchanges with her some of which related to her failure to provide in a timely fashion the applicant’s full documentary case and the difficulties which this posed for the purposes of the review.

11. In response to my oral requests additional documents were provided to me during the hearing, these being the missing annexures referred to in the applicant’s Statement and, with leave, further documentary evidence was filed after the hearing was concluded. The largely unexplained late provision of this material meant that I was unable to make an oral decision in this case at the conclusion of the hearing, as is my usual practice.

12. Given that the hearing took place almost 12 months ago I have listened to the audio tape of the oral evidence recently and have reviewed the documentary material, including the documents provided after the hearing and those in the Department’s paper file. I have also seen a PRISMS record and Movements Details for the applicant the information in which is not controversial.

13. For the following reasons I have concluded that the decision of the delegate to cancel the applicant’s visa should be affirmed.

    Credibility and reliability aspects

14. Overall, and making allowances for the constraints inherent in a telephone hearing, I was not impressed by the applicant’s oral evidence. Quite apart from his failure to satisfactorily explain to me certain critical aspects of his account, including the timing and substance of his dealings with his former agent, insofar as his demeanour goes there were numerous instances when he did not respond directly to my questions despite regular warnings from me to do so. Questions had to be repeated, at times more than once, in an endeavour to obtain from him a direct response. I did have the distinct impression that he was prevaricating at times and dissembling at other times. Changing his evidence in some respects as he went along suggested as much. Long pauses in his answers to apparently simple questions did nothing to instil confidence in what he was saying. Attempts by Ms Vitale to answer some questions which were obviously directed to him, although perhaps well intentioned, did not assist me. Adherence to a version of events which in part is very difficult if not impossible to reconcile with objective features did not convince me that he was always on the front foot regarding his dealings with his former education agent and, consequently, about the extent of his knowledge of what was being done by the agent to obtain the ADLM, prepare the VA and procure the visa.

15. In addition to those concerns there are glaring internal consistencies in his documentary case, and between that case and his oral evidence which, in some respects, are quite incredulous and reflect poorly on the merits of his application. To take an example, in his Statement (paras 6 and 10) he says that in about mid 2019 he was told by his former agent (Rizwan) that he could obtain an ADLM by means of RPL and distance learning, that Rizwan enrolled him in the course at FTA, gave him material to study at home and that, by January 2020, he had completed the course requirements in that way. In the Submission Ms Vitale contends on that evidence that he was told by the agent that he could complete the course “through RPL and distance study”. The difficulty which I have with that submission is that, according to his response to the NOICC, a document which he accepted in his oral evidence was prepared by her on his instructions and which accurately records them, he did not meet the agent until late 2019 when he was told that he could do the course “through RPL”, that this process would cost him $6,000, that he paid HBD that amount of money in cash and that the process of obtaining the qualification by those means had been completed by January 2020.

16. Leaving aside these inconsistencies, the applicant has provided (apart from evidence regarding payments made to HBD) no independent documentary evidence to establish that any one of those versions is more reliable than the other in circumstances where he has not explained how he managed to complete the course wholly or partly by RPL if he had, so far as the evidence would suggest, no prior learning in the relevant field. He says in his Statement, evidence which I accept given that PRISMS confirms it, that he was enrolled in an earlier Diploma of Leadership and Management (DLM) at the Richmond College but, on his own case, he left this course because he did not like it.

17. There is clearly no basis in the evidence for a finding that he completed any units at Richmond let alone units which would have given him legitimate expectations of completing the ADLM at FTA by means of RPL. There is no evidence to suggest that his earlier tertiary education in India in a Commerce degree could be so regarded, nor do I have any reliable evidence that he had any relevant work experience, apart from unsubstantiated information in the VA itself, by which he could realistically have hoped to satisfy RPL requirements.

18. I am, for those and other reasons, left with the impression that his documented versions of his dealings with his former agent, more particularly regarding the advice he was given as to how he could obtain the ADLM, have shifted over time in a rather clumsy attempt to reinforce his review case. Apart from the internal inconsistencies in the documented versions, the Transcript of his results in the ADLM at FTA, a document which (he says) he thought was genuine until he was notified to the contrary in the NOICC, records him as having been assessed as “competent” in each of the units in the course which it would not have done if he had obtained the qualification, wholly or partly, by means of RPL. Ordinarily, if a student obtains a credit for a unit or units in a course by means of RPL the transcript will record it as having been obtained in this way.

19. There is nothing in the way of reliable evidence to support his assertion that he honestly believed that the Certificate and Transcript were genuine documents until he was notified to the contrary in the NOICC. He says that he trusted Rizwan but this contention is impossible to reconcile with the fact that, even on his own account, he was aware, before the VA was filed, that the agent had extracted from him a lot of money to obtain an ADLM from FTA which was not a registered CRICOS course.      

20. I am thus unable to rely on much of his oral and documentary evidence unless it is inherently plausible, is consistent with the objective features, is corroborated by other reliable sources or consists of an admission against interest. More particularly, whilst I accept that he engaged Rizwan to act for him in connection with the obtaining of the ADLM at FTA and in the later preparation of the VA, I do not accept that he honestly believed he had legitimately acquired that qualification at the time the VA was lodged.

21. On my reading of the acceptable evidence, he was aware prior to the filing of the VA that the Certificate and Transcript were bogus documents and that the information in the VA concerning his completion of the ADLM was incorrect. 

    The steps which led to the cancellation of his visa, the evidence before the delegate and his findings  

22. Ordinarily, in a case which mainly requires a consideration of the second stage of the inquiry, and to that end an assessment of evidence which the applicant has led in relation to that issue but which he did not put before the delegate, I would not go into his reasons at any great length. But, as I have already noted, it is necessary for me in this case to consider what case the applicant presented to the delegate, and assess whether it might be in some respects more reliable than his more recent version, before reviewing the evidence in support of his review case.

23. Prior to the issue of the NOICC the Department was informed by the Australian Skills Quality Authority (ASQA) that the registration of Fox Security Pty Ltd (the owner of FTA) had been cancelled or suspended on 13 December 2019 effective as of 21 January 2020 and that, according to a report which Fox had provided to ASQA on 11 March 2020, there was no record of the applicant having been issued with a valid qualification by that provider.

24. The NOICC, which was not issued until 21 February 2022, correctly records that the applicant was granted the subject visa on 1 September 2020, reiterates the information from ASQA and foreshadows the possible non-compliances arising from it. The applicant was given 14 days in which to respond but this period was extended for 5 days to 15 March 2022 at the request of Ms Vitale.

25. In his response, undated but apparently sent to the delegate on or about 15 March 2022, Ms Vitale notes that the applicant came out to Australia in February 2018 to study a Master of Professional Accounting (MPA) at ATMC Federation University and commenced his studies in this course in March of that year. PRISMS confirms this. She then states that he struggled during the first semester, could not pass any units and left the course at the start of the second semester in July 2018. PRISMS indicates that his enrolment in the MPA was cancelled. She says, and I accept, that he was unsure of what to do next, felt that he had let his parents down and was referred to HBD because they were well known for assisting international students who were struggling with their education here.

26. The version put forward in the NOICC response regarding what advice he was given by Rizwan when he met him in late 2019, which is about 18 months after he had ceased studies in the MPA, was that he could complete a Diploma in Leadership and Management by means of RPL and that it would cost him $6,000. Although Ms Vitale asserts that the applicant was not aware of any fraudulent intention on the part of HBD she did not pause to explain in the NOICC response, or otherwise at the hearing, how he could reasonably expect to obtain such a qualification, let alone an ADLM, on that basis without any prior learning in the relevant field. She goes on to record that he returned to HBD in January 2020 when he was provided with the Certificate and Transcript for the ADLM.

27. HBD then prepared and ultimately filed the VA, according to the response, because it was confident of getting a good result for the applicant but there is no explanation in the response as to why this was not done until May 2020, some 5 months after he was handed the Certificate, nor why it was necessary for the applicant to obtain another visa to study a package of Leadership and Management courses consisting of a Diploma and Advanced Diploma in circumstances where he had already obtained what he understood to be a valid ADLM from FTA.

28. According to the NOICC response the applicant did not discover that the ADLM was not listed in his USI account, and consequently was not a registered CRICOS course, until he logged on to his account after he received the NOICC. It is said that he was advised by a friend at this stage to contact HBD which he says he eventually did, that he explained “the whole story” to Rizwan but was told that all RPL certificates were handled by the admissions section at HBD. Apparently, according to the response, the applicant was left to his own devices from then on.

29. The response goes on to reiterate that the applicant was never aware that the ADLM had been fraudulently procured until the NOICC was issued and he checked his USI account; that he paid for the ADLM to be processed through RPL; that he was not privy to the process and knew nothing about what was done until after the Certificate issued; that he was distraught at the prospect that it may not be a genuine qualification, and that he was a victim of a dodgy operator or an inefficient team.

30. The applicant’s assertion in the NOICC response to the effect that he was unaware that the ADLM was not a registered CRICOS course until he checked his USI account after the NOICC was issued is impossible to reconcile with the evidence in his Statement (at para 12) which is to the opposite effect, namely that Rizwan had informed of this before the VA was filed.

31. Although the NOICC response concludes with the assertion that the applicant had been studying very hard in his “current course” it did not identify what that course was, nor was any evidence provided to the delegate to substantiate that the applicant had made any academic progress since the visa was granted some 18 months earlier.

32. In the NOC the delegate summarises the effect of the response and interprets it to mean that the applicant was contending that he had obtained the ADLM in a transactional manner in that he had paid HBD for it rather than studying and completing the course in the conventional way and that HBD had prepared the VA and had lodged it on his behalf. The delegate, relying on unidentified Departmental records, rejected the second of those contentions (if not also the first), found that he did not receive any assistance from an agent in the preparation of the VA, that he had personally provided the offending information and that the non-compliances described in the NOICC had in fact occurred.

33. Although not actually expressed in the NOC it seems that the finding that the applicant was personally involved in preparing and lodging the VA was based at least partly on the fact that the VA was, according to the form, lodged by the applicant as a self-registered user. There is nothing in the VA itself, or I infer in any of the unseen supporting documents, to implicate HBD in the process which led to the grant. Be that as it may, the Tribunal must of course consider the evidence which it has relating to this issue, a matter to which I will return later in these reasons.

34. As to whether the visa should be cancelled the delegate took into consideration, as he was required to do, the applicant’s response, the relevant legislation and the guidelines set out in the Procedural Instruction on visa cancellations. He found that the correct information was that the applicant had not in fact completed the ADLM during the period from February 2019 to January 2020 and that this was to be given significant weight in favour of cancellation. Other relevant circumstances were considered none of which assisted him including the fact that the decision to grant the visa was based at least partly on the assessment that he met clause 500.212(a) and that a different assessment of this criteria may have been made had the correct information been known at the time the VA was submitted. Again, this was given significant weight in favour of cancellation.

35. As to the circumstances in which the non-compliances occurred, whilst acknowledging (for some reason not entirely clear to me) that the applicant may not have been aware of the falsity of the information at the time the VA was lodged, the delegate did not think this could ameliorate his position or otherwise alter the fact that offending material was submitted by him acting without the assistance of others. This too was given adverse weight.   

36. As to his present circumstances the delegate noted that the applicant had not provided any evidence about his current situation and that the PRISMS record revealed he had not been enrolled in a full-time registered course of study since his last enrolment was cancelled on 22 October 2020 for non-payment of fees. Despite that finding the delegate was prepared to infer that he may suffer some emotional and financial hardship from the cancellation and that it should be given a little weight against cancellation.

1. As to whether there were other instances of non-compliance, the delegate reiterated that the applicant had not been enrolled since 22 October 2020, that he consequently had not complied with mandatory condition 8202(2)(a) which the Movements record confirms had in fact been attached to his initial Student visa and to the subject visa. The delegate also noted that his claim in the NOICC response that he had been engaged in studies since the subject visa was granted (if not before) could not be reconciled with the independent records, presumably a reference to PRISMS, a record which does not support that proposition.

2. Just pausing here, leaving aside his evidence concerning the circumstances in which the non-compliances occurred, the applicant has led no evidence in the review to throw light on any of these other matters. Left unexplained, as these deficiencies are, the inference I draw is that the evidence would not have assisted his case.

3. As to the other potentially relevant matters referred to in the NOC, including whether other persons would be affected by the cancellation, whether any relevant international agreements could be breached, and whether there were other mandatory legal consequences arising, the delegate either gave them no weight because they did not arise on the evidence led or attributed a little weight to them in his favour.

4. Reading Part D of the decision it is clear to me that the delegate concluded that the reasons for cancelling the visa outweighed the reasons not to cancel it and, accordingly, the visa was cancelled.

   Evidence and other findings

5. The documentary evidence which Ms Vitale provided to the Tribunal shortly before, during and after the hearing, viewed in conjunction with the applicant’s evidence in the NOICC response, and to some limited extent the evidence in his Statement, satisfies me that in late 2019 he did retain Rizwan to advise him in connection with his studies; that he was told by Rizwan that arrangements could be made to procure an ADLM by means of RPL, information which the applicant knew was false or could not be legitimately substantiated; that he was told that it would cost the applicant a significant amount of money, perhaps as much as $6,000 in cash, to procure that qualification by those means; that the money which Rizwan wanted was paid to him in cash; that Rizwan informed him on or shortly after 13 January 2020 that his qualification was ready and could be collected; and that, later in January 2020, the applicant returned to Rizwan’s office and was provided with a copy of the Certificate and Transcript.      

6. I do not accept the applicant’s evidence in his Statement (in para 6) that Rizwan told him that he could complete the course or any part of it by distance learning, nor do I accept his evidence (in para 7) that Rizwan gave him any material to study at home, or that he studied at home. This evidence has all the hallmarks of a recent invention. There is no mention of these things in the NOICC response, it is far too vague and inherently implausible to warrant acceptance. The study material has not been identified let alone produced, nor is there any corroboration along these lines in the other documents on which he relies to prove his case.

7. Nor do I accept the evidence in his Statement (para 10) that Rizwan enrolled him in the ADLM at FTA. There is no other evidence, documentary or otherwise, to support this assertion, let alone evidence that this took place in June 2019. Again, this evidence strikes me as having been recently invented to support a case to the effect that the applicant engaged in studies in this course at home during the second half of 2019 and thus had no reason to suspect that fraud was involved in procuring the qualification. Nor do I accept that the applicant paid him any money for tuition fees referable to it, although he may well have done so for the later Leadership and Management package in which he was enrolled shortly prior to the filing of the VA in May 2020.

8. I do not accept the applicant’s oral evidence to the effect that he could not recall, at the time the NOICC response was prepared, the approximate stage in 2019 when he first sought advice from Rizwan regarding his studies here. He has not explained how he came to make such a fundamental mistake to the effect that it was not until towards the end of that year that he approached Rizwan, nor how he was able to recollect in his Statement, a document prepared some 18 months later, that this had in fact occurred much earlier in 2019, in about June of that year.

9. Nor do I accept his oral evidence that he did not collect the Certificate and Transcript from Rizwan’s office until March/April 2020, although not much seems to turn on it.

10. Although the VA itself does not suggest that an agent was involved in the preparation and on-line lodgement of the form I am satisfied by other documentary evidence, namely the text messages passing between the applicant and Rizwan, the screen shot of the handwritten note from the applicant containing details of his IMMI account apparently sent to Rizwan on 18 May 2020 shortly prior to the filing of the VA on that date, the Statutory Declarations provided by other persons confirming that funds were transferred, and associated bank receipts, that Rizwan was also retained by the applicant for that purpose, most probably in or about April 2020 when the sum of $2,800 was transferred to his Westpac account by these other persons. The applicant was by this stage obviously aware that his original Student visa was due to expire on 19 May 2020, knowledge which I infer was most probably acquired during his earlier dealings with Rizwan.

11. As noted earlier in these reasons in his Statement (para 12) the applicant says that Rizwan informed him that he would need to apply for another Student visa but would also need to do the ADLM again because the FTA qualification was not a registered CRICOS course. This advice, according to the applicant’s own case, as best I can decipher it, was given to him prior to the lodgement of the VA.

12. Despite having received advice from Rizwan to that effect, despite having paid to him significant money in cash for the ADLM at FTA, and despite having engaged in studies in that course at home, the applicant says he trusted Rizwan nonetheless and went ahead and instructed him to lodge the VA on his behalf in the honest belief that he had done nothing wrong. Whilst I can accept that the text messages corroborate the applicant when he says that Rizwan lodged the VA using his IMMI account and that he (Rizwan) inserted the applicant’s contact details in the form, the proposition that the applicant held that belief at that time strikes me as inherently implausible.  

13. There can be no doubt that the subject visa was sought to enable the applicant to study a package of two courses in Leadership and Management, namely a Diploma and Advanced Diploma, at another provider (whose identity cannot be ascertained on the evidence led) and that the funds which were transferred to Rizwan’s account on 24 April 2020 would likely have been used to fund the initial enrolment fees for these courses, or one of them. That said, I do not accept the applicant’s evidence in his Statement (para 12) that he paid Rizwan an additional $600 in cash prior to the filing of the VA. Apart from the fact there is no mention of this payment having been made or demanded in the exchanged messages, the evidence is not easy to reconcile with their dealings in connection with the VA, including the fact that on 15 September 2020 a further $1,200 was transferred to Rizwan’s account by one of the persons who had earlier provided money to him (in April 2020), ostensibly to procure the ADLM at FTA.

14. The applicant has not paused in his review case to explain why he would pay Rizwan a further $600 in cash to prepare the VA in these circumstances. On his own case Rizwan paid the filing fee using the applicant’s credit card and the other expenses were presumably met with the additional funds transferred to his account in April 2020. In any event the asserted payment of these additional funds in the form of cash to prepare the VA does not appear to me to be supportive of his case. 

15. On my findings there was never any tuition of any kind, actual or anticipated, which led to the ADLM at FTA. If there had been any such tuition it is difficult to see why the applicant would have continued to trust Rizwan as an education agent to handle the preparation and lodgement of the VA on his behalf in circumstances where he had, on his own case, studied in and paid for a course of no utility or other benefit to him.

16. I thus cannot accept that, in these circumstances, the applicant honestly believed that what Rizwan had done to procure the Certificate and Transcript from FTA did not involve wrongdoing. He had no reason on the evidence led to reasonably expect that he could obtain this advanced qualification by means of RPL as he had no prior learning in the relevant field. I reject the implicit contention that he did.

17. Whilst I am prepared to accept the evidence in the Statement (para 16) that Rizwan prepared the VA and lodged it on the applicant’s behalf I do not accept that he did not see it prior to lodgement. The text messages do not support this assertion particularly those of 14 and 15 May 2020 which reveal that the applicant was waiting outside Rizwan’s office on each of those dates.

18. It may be that the applicant went to Rizwan’s office shortly after the NOICC was served on him, as he contends in the Statement (para 26), but there is no evidence from him, oral or documentary, to explain the actual purpose of this visit. I do not accept, if this is what he is implicitly suggesting, that he went there to remonstrate with Rizwan or to clarify the legitimacy of the ADLM, nor do I accept that he (Rizwan) thought that the Certificate was incorrectly dated or that it was only during this meeting that the applicant realised something was wrong.

19. I am thus comfortably satisfied, according to the Briginshaw standard, that the applicant went ahead with this arrangement in late 2019 knowing full well that Rizwan was intending to and did fabricate the FTA qualification. Certainly, the applicant had a strong motive for so doing as it would have been abundantly clear to him by late 2019 (if not earlier) that, unless he agreed to go along with the proposal, his prospects of obtaining another Student visa could only be regarded as problematic in circumstances where he had not engaged in any productive study since arriving here in February 2018, almost 2 years earlier. I infer that either Rizwan had given him advice to that effect in or about late 2019 or he was by that stage already aware of his predicament. Either way, he had every reason to want to procure a fabricated qualification when he did and, in my view, he was actively and knowingly involved in the process which led to it.

20. This is not a case which involves a vulnerable or inexperienced applicant who was blind to the ways of an unscrupulous agent or otherwise incapable of appreciating what was being done to justify demands for the payment of exorbitant agency fees. The applicant in this case had engaged in tertiary studies in his home country, had some commercial experience before coming out here, had been in Australia for a considerable period by the time the relevant events took place, and apparently had no difficulty in making independent decisions to abandon his earlier studies.

21. He was well capable of going into this transaction with his eyes wide open. I do not accept the applicant’s oral assertions to the contrary, nor do I accept Ms Vitale’s submission that he has been a victim throughout the process.

22. I find that what Rizwan did to procure the offending material, and thus the eventual visa, was done with the applicant’s informed consent. He would almost certainly have been well aware, by the time the VA was filed in May 2020, that the material would be used for that purpose.  

23. In this case, as in most Sec 109 cancellation cases, the circumstances in which the non-compliances occurred, and more particularly whether an applicant was complicit in the provision of false or misleading material to the Department, is a very weighty consideration. Certainly, the vast bulk of the applicant’s documentary and oral evidence relates to these circumstances. He has put forward little or no evidence on the other matters which arise for consideration, including his present circumstances and whether he or other members of his family would suffer any financial or emotional hardship should the visa be cancelled.

24. Absent any meaningful evidence from the applicant on any of these other matters, I infer (as indicated earlier) that the evidence would not have assisted his case. More particularly I reject his contention that he has been studying hard and find that in fact he has not studied since his enrolments in the second Leadership and Management package were cancelled in October 2020. He has proffered no explanation for his languid academic progress since he arrived here in early 2018, now almost 5.5 years ago. Certainly, he has led no evidence in the review to contradict the delegate’s findings regarding his current enrolment status, nor has he sought to explain it.

25. I do not have any evidence that he would or might suffer some relevant hardship or prejudice if his visa is to be cancelled. He has apparently made supportive friends here, so much appears from the Statutory Declarations, but little else is known about them or his other personal and domestic circumstances.

26. I do not consider that the cancellation of his visa would in these circumstances occasion any undue hardship to the applicant.

27. I take into consideration his past co-operation with the ABF investigators in willingly participating in the interview referred to in his Statement and am mindful of the prospect that his evidence might be of some utility should criminal or other disciplinary proceedings be commenced against Rizwan, if these are not already pending. I give these matters some weight against cancellation but they do not significantly ameliorate his position.

28. As for the other matters, I agree with the relative weight which has been attached to them in the decision under review and with the way in which the delegate dealt with the legal and other consequences flowing from the cancellation. Nothing has occurred since, so far as the evidence goes, to warrant any departure from them. On any view, these other matters can assume only peripheral importance and relatively little or no weight.

29. There are no other matters which arise on the evidence.

    Summary and conclusion

30. Having considered the relevant circumstances, particularly those in which these non-compliances occurred, and after having given due weight to them, I have little difficulty in concluding that the applicant’s Student TU-500 visa should be cancelled.

    DECISION

31. The Tribunal thus affirms the decision under review.

    Michael Bradford
    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.