Gourav (Migration)

Gourav (Migration) [2024] AATA 514 (14 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gourav Gourav
REPRESENTATIVE:  Mr Manoj Kumar Nanda (MARN: 1568823)
CASE NUMBER:  2215341
HOME AFFAIRS REFERENCE:               BCC2022/317877
MEMBER:David McCulloch
DATE:14 February 2024
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 14 February 2024 at 8:47am
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant gave an incorrect answer in the visa application – applicant had provided a bogus document – past culinary employment history – agent did not inform him that incorrect information and bogus documents would be provided – applicant has successfully completed in Australia a Diploma of Business – positive study history – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
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 visa that was cancelled was granted on 26 November 2021 for a stay period until 29 May 2024.
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in a visa application, breaching s 101(b) of the Act and producing bogus documents, breaching s 103 of the Act. The issue in the present case is whether the grounds for cancellation were made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 19 December 2023 at 10am to give evidence and present arguments. The Tribunal conducted a second hearing on 5 February 2024 at 2.30pm. The applicant communicated in English in both hearings. The applicant was represented in the review by a migration agent/lawyer. The representative attended both hearings.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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.
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. The s 107 notice advised relevantly as follows:
Information provided in your visa application
On 23 November 2021, you lodged an application for a Student (subclass 500) visa and submitted the electronic form Application for a Student Visa. On page 9 of the application form, under the heading “Employment” you provided the following information:
Employment history details
Employment status: Employed
Is this the applicant’s current employment situation? Yes
Employer/business details
Give details of the employer/business
Organisation name: Hotel Mohali Residency
Industry type: Accommodation and food services
Organisation address
Country India
Address Sco-45 Kamala Market, Near Income
Tax Building, Mail Phase – 1
Suburb/Town MOHALI,
State/Province PUNJAB
Postal code 160055
Contact person details
Family name: GOYAL
Given names: Arjun
Mobile/cell phone: 0011911722033083
Position details
Position: Sous Chef
Date from: 7 November 2019
On page 14 and 15 of the application form, under the heading “Declarations’ it states ‘Warning - Giving false or misleading information is a serious offence”, you answered “yes” to the following
Declarations:
The applicants declare that they:
·Have read and understood the information provided to them in this application.
·Have provided complete and correct information in every detail on this form, and on any attachments to it.
·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.
On 23 November 2021, you also provided a letter in support of your Student visa application in the form of a Genuine Temporary Entrant (GTE) statement in which you state in part:
“Employment:
I like to move forward and joined Hotel Mohali Residency as a Sous Chef from 07^th November 2019. I am continuously working with Hotel Mohali Residency as a Sous Chef till date.
Professional Experience:
I have joined Hotel Mohali Residency on 07th November 2019 to till date as a Sous Chef. I have been learning new things about hospitality in last 4 years. Now I have decided to continue my cookery study as well as hospitality management course to upgrade my skills.
Obligations of a student visa holder:
I am aware that I must comply with my visa conditions while studying and living in Australia else my visa can be cancelled. I must also comply with Australian laws. I have made myself aware about student visa conditions and work conditions. I will make sure I report to the university and the immigration if there is any change in my circumstances.
Personal Declaration:
I have studied details on the following Dept. of Home Affairs website: Australian Student Visa Conditions and I understand that I am required to satisfy all student visa requirements relevant to my case, whilst I am in Australia. In the last I like to request you that kindly accept my application for student visa. So I can have chance to be studying at Le Cordon Bleu and complete my certificate III in commercial cookery leading certificate IV in commercial cookery leading to advance diploma in hospitality management from Le Cordon Bleu at Sydney campus.
I hereby certify that the information above, which I have supplied in support of my student visa application to assist me to demonstrate that I am a genuine student, is a true and correct account.
I understand that if any misleading or non-genuine information is found in this document, my student visa application will be refused.”
You submitted the following documents in support of your claimed employment history:
·4 November 2019 – Appointment letter from Hotel Mohali Residency offering employment as Sous Chef commencing on 7 November 2019.
·28 September 2021 – Experience letter from Hotel Mohali Residency stating that you were working at the hotel as a Sous Chef from 7 November 2019 to date.
Based on the above information, as well as meeting all other relevant criteria, you were granted a Student visa on 26 November 2021.
Subsequent information received by the Department
Following the grant of your visa, the Department’s overseas office completed integrity checks on the information and supporting documents you submitted with your application. The Department contacted Hotel Mohali Residence who confirmed that no person by your name had worked for the business. The result of these integrity checks indicate the Hotel Mohali Residency appointment letter dated 4 November 2019 and the Hotel Mohali Residency experience letter dated 28 September 2021, that you provided in support of your Student visa application are non-genuine.
Non-compliance with Section 101(b)
I consider you provided incorrect answers in your application for a Student (subclass 500) visa when you stated at page 9 that you provided your employment details with Hotel Mohali Residency in the position of Sous Chef and by declaring that the information you provided was complete and correct information in every detail on this form, and on any attachments to it on page 14 under the heading ‘Declaration’ I consider this information to be incorrect because the Department contacted Hotel Mohali Residence who confirmed that no person by your name had worked for the business. Based on the above, I consider you have never been employed by Hotel Mohali Residency.
Non-compliance with section 103
I consider you have not complied with section 103 of the Act because in support of your application for a Student visa you provided the following documents, which I consider to be bogus:
·4 November 2019 – Appointment letter from Hotel Mohali Residency offering employment as Sous Chef commencing on 7 November 2019.
·28 September 2021 – Experience letter from Hotel Mohali Residency stating that you were working at the hotel as a Sous Chef from 7 November 2019 to date.
I consider these are bogus documents within the meaning provided at paragraph (b) under section 5(1) of the Act, which states:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
As a result of the Department’s integrity checks, Hotel Mohali Residence confirmed that no person by your name had worked for the business. I therefore reasonably suspect that the documents relating to Hotel Mohali Residency to be counterfeit or to have been altered by a person who does not have authority to do so, as it was not genuinely issued in respect of your claimed employment history.
Based on the above information, I consider that you have provided incorrect answers and submitted bogus documents in your Student visa application. I consider therefore that you have not complied with sections 101(b) and 103 of the Act, and accordingly your Student visa may be liable for cancellation under section 109 of the Act.
The applicant was notified of an invitation to comment on the intention to consider the cancellation of his student visa on 26 July 2022. The applicant provided a response on 10 August 2022.
The applicant provided the following ‘Statement of Purpose’ dated 10 August 2022 in response to the notice of intention to consider cancellation (NOICC) (not corrected for spelling or grammar, headings and footings omitted):
My name is Gourav and I am born and brought up in the small town of Guhna located in Haryana. The Guhna village is located 25km away from Sonipat. I am 22 years old and an older brother to two sisters. My mother and father are hardworking dairy farmers. I completed my 10th grade back in March 2015 from the Government Senior Secondary School in Guhna (Kaithal) and my 12th grade in 2017 from the government senior secondary school Patti Afghan Kaithal. It was always my dream to join the National Défense Army so after completing my 12th grade I joined the Doon Defence Academy from May 2017 to April 2019. The motto of the academy is “Country First”, it is the top institution for making a career in the Merchant Navy and Army. We learn about ethics in living and leading a disciplined life.
While studying in the camp, one of my jobs was to volunteer to cook food for everyone. My teachers and colleagues loved my food and gave me a lot of compliments. Moreover, I enjoyed the art of cooking and decided to pursue it as a career. My parents were very supportive and connected me with two people from my village who did Chef Specialised Course. They recommended going to Australia to do my course. I researched my options and I found Australia to be the best for me in terms of affordability, course content, suitable weather conditions and extremely friendly people. I started speaking to an agent in Haryana back in 2020. The admission process was stretched as I got my admission a year later, in 2021.
The village where I live in India is a very small place and there are very few International Educational Agents in my area and my father took me to one agent whose name was Sandeep Malik who was claiming to be a best International Agent for Australia in Haryana. As my father is not very literate and without checking much about the agent profile he agreed to give my file to that agent. My agent straight away gave me 100% guarantee about my visa by looking at my mark sheets and requested me to provide all my educational documents which my father gave him on very 1st visit. I am attaching all my educational documents below which I provided to my agent. My agent demanded Rs 17,00000 @ 32,000$ AUD. My dad just wanted to give me the best education and wanted to give me good future and for all this he paid him the whole money in 2 instalments. My agent gave him me and my father very positive response but later he delayed every single process for my visa application. He even provided my offer letter in the 8th month after paying him the 2 instalment. I later on realised that the agent is not a registered education counsellor. He was getting my work done from some other person which I came to know in the 10th month of my visa process and after some more digging I came to know that even the next person was getting my visa done from someone else in Delhi. After I got my visa I came to know that it was a whole chain of fake educational agents and none of them was a registered education counsellor. The agent wasted my time and having limited knowledge about the education system in Australia, I was unaware of the operations. After I got enrolled, apparently the agent provided a fake document in my application with some work experience which I am completely unaware about till today. It was not until the message I received from immigration that I realised this fraud was committed. Moreover, after landing in Australia and attending my college I realised I had been conned by the agent, he made me pay an extra sum of money for my fees in college. I realised this after I talk to my other classmates in Australia as they paid way lesser amount to their agent than I paid and even some of my class mates didn’t pay to their agents as they paid straight to the college. My friends were paying a lower amount comparatively and this was very frustrating for me and my family as there was a lot of investment put in for my education. I tried calling the agent multiple times, my parents tried to visit his office as well back home but there was no outcome leading to this. He has disappeared in thin air after conning not only me, but I know of three other people who went though a similar experience with the same agent.
My family comprises of a generation of hardworking and honest farmers. They sent me here to get an international education and exposure so that I can use the knowledge to grow my dairy farms back home and settle in some of the biggest kitchens in India. I would never intend to commit a fraud as such, these are against the values taught to me by my parents. The agent had planted these documents for his personal gain, and he is nowhere to be found anymore. I am a victim in this case and my parents have sacrificed a lot to send me to fulfill my dream of studying in Australia. My mother and father are shocked and incredibly stressed about me being alone in a foreign country in such a situation. I never had a proper hold on the email which I provided to the immigration and I just accidently opened my email [email protected] after changing my password and came to know about all the emails which came from immigration. I would like to apologise to the Australia Immigration for replying late to their emails. I don’t know many people with whom I can share my tough experience and my situation as I believe everyone in my friends circle is too busy and people who listen to my situation laughs at me and some people are scaring me. I am feeling very alone and stressed so I thought it would be best if I tell you everything. I can even share my Australian experience with my parents and I have not even told my parents about the emails which I got from the immigration because they have very weak heart and I know they won’t bear this pressure. I request the immigration to help me in this case by not cancelling my visa because if this happens then my life would be ruined and I won’t be able to see my parents eye to eye. I investigated a lot and got only this information about the person who did all this to me. Below are the details of my Indian Education Agent details.
In addition to the Statement of Purpose, the applicant submitted the following documents to the Department as summarised by the delegate in their decision record:
·Secondary Examination from the Board of School Education Guhna issued 6 May 2015, in the name Gourav. Serial No.: AQ-075539, Enrolment No.: 14-1-KT-061-0035, Roll No.:2214501198.
·Senior Secondary Examination from the Board of School Education Guhna issued 14 August 2017, in the name Gourav. Serial No.: AQ-170970, Enrolment No.: 14-1-KT-061- 0035, Roll No.:3017659757.
·IELTS Test Report Form in the name GOURAV, Candidate ID: T7141282, Centre Number: 074895, dated 1 July 2021.
·Letter of certification from Doon Defence Academy confirming that the visa holder was a student of the academy.
·The visa holder also included a copy of the bio data and back page of his Indian passport.
In the hearing, the applicant conceded that the incorrect information and bogus documents have been provided as set out in the s 107 notice. The applicant reiterated that the agent did not inform him or his family that this incorrect information and those bogus documents would be provided.
For these 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. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     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 circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the visa holder to the community.

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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.
As indicated, the applicant is claiming in terms of the circumstances in which the ground of cancellation was made out that neither he nor his family were made aware by the Indian migration agent that incorrect information relating to employment history and supporting bogus documents were provided.
In the first hearing, the applicant indicated that initially his parents and an individual from the village who was connected with the migration agent visited the agent in a nearby city. The applicant indicated that on their return he sent to the agent relevant documents that had been requested. The applicant indicated that he never saw from the agent what was submitted as part of the visa application. The Tribunal showed the applicant in the hearing the nine-page Statement of Purpose which had been written under his name submitted as part of the visa application. The applicant indicated that he had never seen this document.
The applicant in the first hearing indicated that when he came to Australia he learnt that the costs of the migration agent were higher than normal costs incurred by other Indian colleagues. The Tribunal put to the applicant that this cost premium could be seen as consistent with the extra effort the agent may have undertaken to provide the incorrect information as to employment history supported by bogus documents. In the first hearing, the migration agent submitted that costs vary significantly between migration agents and the total cost charged by the migration agent was not out of the ballpark of costs regularly charged by Indian migration agents for students coming to Australia.
In the first hearing the applicant indicated that on arrival in Australia he was enrolled to study a Certificate III in Commercial Cookery at Le Cordon Bleu College. The applicant was thereafter enrolled in a Certificate IV in Commercial Cookery followed by an Advanced Diploma of Hospitality Management.
Government records indicate that the applicant’s enrolment in the Certificate III was cancelled on 25 March 2022 for disciplinary reasons. The applicant indicated in the hearing that the disciplinary reason was the discovery by the education provider of the incorrect information and bogus documents submitted establishing his past culinary employment history.
In the first hearing the applicant indicated that he wanted specifically to study hospitality at Le Cordon Bleu College due to the reputation. He did not want to explore hospitality study at other education providers. The applicant indicated that in the absence of him being able to study at this education provider he obtained the advice of a migration agent who recommended he study a Diploma of Business. The applicant has provided evidence of completing this course which he studied from 4 April 2022 until 2 April 2023.
The applicant is currently studying an Advanced Diploma of Civil Construction Design. This course commenced in June 2023. The applicant indicated in the first hearing that he has studied one unit in each of the two semesters undertaken in the last half of 2023. The applicant indicated that transcripts showing progress in units studied have not yet been released. The Tribunal asked the applicant to ascertain from the education provider when they will be released, and to provide the transcript once they are released.
In response the applicant provided a letter dated 4 January 2024 from Campbell Institute confirming the applicant’s enrolment in an Advanced Diploma of Civil Construction Design starting on 12 June 2023 and ending on 8 June 2025. The letter indicates the applicant has been marked competent in the unit entitled ‘Manage knowledge and information’. He is currently enrolled in three named units. The letter indicates the applicant has paid $2,850 as payment until 1 October 2023 and has $15,150 left to be paid towards full payment of the course.
The Tribunal asked the applicant in the first hearing what his intentions are if the visa is reinstated. The applicant indicated that his core goal is to study the three hospitality courses originally enrolled in at Le Cordon Bleu College. However, the applicant indicated that because he has started it he intends to complete the Advanced Diploma of Civil Construction Design which is due to be completed in June 2025.
The Tribunal queried with the applicant why he would for the next year and a half study this course which is in a subject completely unrelated to hospitality, which he indicates is his real goal. The applicant reiterated that it would be a waste of his progress in this course to date and he wants to complete the course and be able to show it on his resume.
The applicant indicated that when he finishes this course in June 2025 he will then progress to study the Certificates III and IV in Commercial Cookery and Advanced Diploma of Hospitality Management at Le Cordon Bleu College before returning to India.
The Tribunal put to the applicant that given that the education provider cancelled his enrolment based on false information provided as to culinary employment history, he may not be eligible to undertake these courses. The applicant maintained that he will be eligible despite not having claimed culinary experience.
The Tribunal gave the applicant a period following the first hearing to contact the education provider with a view to providing evidence to the Tribunal to satisfy it that the applicant would be eligible to undertake these three culinary courses notwithstanding not having the original claimed culinary experience in India.
The applicant did not provide any information in this respect.
The applicant and the representative indicated in the first hearing that it will be a significant hardship for the applicant if the visa remains cancelled in terms of not being able to complete his current study and thereafter to undertake his main goal of hospitality study in Australia. There will be shame and family disappointment if the applicant returns to India not completing his desired study and having his visa cancelled.
In the first hearing, the applicant indicated that there are no children in Australia whose interests are affected by a cancellation of his visa. The applicant indicated that he does not fear persecution or significant harm in India.
The Tribunal returned in the first hearing to the plausibility that the applicant and his family would not have been told by the migration agent in India that incorrect information as to culinary employment history would be concocted and bogus documents provided as part of the application. As indicated, that could explain the premium in the agent’s cost.
The Tribunal indicated to the applicant in the first hearing the lack of plausibility that the migration agent would provide concocted employment information and create bogus documents without the applicant and his father being made aware of this. The applicant maintained there was no knowledge.
The Tribunal indicated to the applicant the important evidence could be a statement from the applicant’s father outlining his interactions with the migration agent, attesting to and explaining the fact that he was never informed that incorrect employment information and bogus supporting documents were being provided in relation to the visa application.
In response an affidavit was provided from Ramesh (no other names provided) who indicates he is the father of the applicant. The letter refers to cookery being the applicant’s passion and his desire eventually to start his own restaurant and become a chef. After studying at the Defence Academy the applicant had a desire to study cookery overseas. The deponent supported the applicant in this. The applicant decided on Australia as the country in which he wished to study. The deponent visited the premises of a migration agent together with a friend who claimed that he knew the agent. The agent in question at the office indicated that he needed to go somewhere and for all details to be given to the person at reception. This person explained the process for obtaining a visa. Later, the deponent spoke to the agent on the telephone and instructions were given to provide relevant documents to an email address. The applicant provided these documents to the agent. Although the visa took longer than expected to obtain, in the end the agent obtained the student visa. This was a happy day for the family. After about two months from the applicant being in Australia, the applicant called his father crying and indicated that his student visa was cancelled. He indicated that the agent in India had used fraudulent documents in the applicant’s study profile. The deponent indicates that he advised the applicant that he should finish his current studies in civil construction as this course has more scope in India than cookery. The deponent indicates that the applicant wishes to be able to study hospitality after completing his current course. However, the deponent indicates that he disagrees with this action as it will take further time and money. A reference is made to the applicant completing his Diploma of Business with good grades and indicating that the applicant now has knowledge about business. If the applicant completes his current course it will be a good combination. The deponent suggests that the applicant can return to India with a degree and start his career. The deponent refers to the waste of resources on the applicant’s study in Australia if he is not able to complete his current course due to the visa being cancelled.
In the second hearing, the Tribunal discussed this affidavit from the applicant’s father which says he is not willing for the applicant to progress with hospitality studies in Australia. In the hearing the applicant confirmed that his father had indicated to him that this is the case and he will not provide support for further study in Australia. Thus, the applicant will return to India at the conclusion of his current course in mid-2025.
The Tribunal put to the applicant that is quite a change of career direction in terms of what he indicated was his main goal of hospitality in the first hearing. The applicant acknowledged this and referred to lack of support from his father.
In terms of what work the applicant would now seek on return to India, he indicated that he may start his own business based on his qualifications gained in Australia. The representative indicated a significant infrastructure boom in Australia providing opportunities for the applicant based on studies of civil construction in Australia.
The Tribunal noted to the applicant that in the first hearing he had indicated that he had passed two units in the Advanced Diploma of Civil Construction Design whereas the education provider indicates only one unit passed. In response the applicant indicates that he has completed all the work for one of the other units but is waiting for an outcome in terms of whether he has passed this unit.
The applicant indicated that in January 2024 he paid a further approximately $2,500 to the education provider to facilitate ongoing studies. Evidence of this was provided by the applicant after the second hearing.
The key discretionary factor for the Tribunal to consider are claims by the applicant that neither he nor his father knew of the bogus documents and incorrect information in relation to claimed hospitality work in India. This has been reiterated in the statement by the applicant’s father following the first hearing. The applicant in both hearings stridently maintained that he had no knowledge of the incorrect information and fraudulent documents.
As put to the applicant, the Tribunal has some plausibility concerns that the agent of their own volition would have concocted documents and made claims in relation to work experience that the applicant did not have. However, the fact that something is implausible does not mean that it did not occur.
The applicant has consistently maintained no knowledge of the provision of the incorrect information and bogus documents and this has been corroborated by the statement from his father.
Given consistent denials by the applicant and the supporting statement from his father, the Tribunal gives the applicant the benefit of the doubt and does not consider, although there is suspicion, that it can be satisfied that the applicant knew fraudulent documents and incorrect information had been provided as part of the visa application.
Significantly in the applicant’s favour in terms of exercising the discretion, is that the applicant has successfully completed in Australia a Diploma of Business and is, so far, progressing adequately in his Advanced Diploma of Civil Construction Design, and is paying for tuition for this course on schedule.
It is puzzling to a degree that the applicant in the first hearing was strident that he wished to continue in Australia with his hospitality studies after finishing his current course, but this position being reversed in the second hearing after it being indicated that the applicant’s father did not support the applicant’s further studies in hospitality when he completes his current course in civil construction design. The Tribunal might have thought that the applicant at the time of the first hearing would have had discussions with his father as to his intended study in Australia and whether his father would fund further studies in hospitality.
Having said that, it does not seem surprising to the Tribunal that the applicant’s father would baulk at supporting the applicant’s study in hospitality after the applicant progressing for approximately three years in business and construction studies.
The Tribunal accepts a not insignificant degree of hardship to the applicant if he is not able to complete the remainder of his current studies in Australia cutting short his study goals in Australia and not optimising career options on return to India.
The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of limitations on his ability to apply for many other onshore visas for a set period.
The applicant has not provided evidence that the interests of children in Australia are adversely affected by the cancellation.
The applicant has not made claims that he faces persecution or significant harm on return to India. The fact that the applicant indicates that he intends to return to India is also not consistent with the applicant holding a fear of being persecuted or suffering serious harm.
Considering that in all the circumstances the Tribunal is not in a position to reasonably be satisfied that the applicant knew of the bogus documents and incorrect information combined with the applicant’s positive study history in Australia and the Tribunal’s acceptance of a not insignificant degree of hardship to the applicant if the visa remains cancelled, the Tribunal determines not to exercise its discretion to cancel the visa.
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 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.
David McCulloch
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2024] AATA 514

14 February 2024

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