Huang (Migration) - [2020] AATA 5601

Huang (Migration) [2020] AATA 5601 (12 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Leyi Huang
CASE NUMBER:  2001293
DIBP REFERENCE(S):  BCC2019/5630958
MEMBER:Antoinette Younes
DATE:12 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 November 2020 at 10:23am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – incorrect information on Incoming Passenger Card – criminal convictions – guilty of conspiracy to defraud the United States of America authorities – paid an individual to undertake an English language test on the applicant’s behalf – consideration of discretion – direct relevance to the assessment of visa criteria – intentional non-compliance – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 99, 100, 101, 102, 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 Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with ss.101 and 102 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal by telephone on 28 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from a witness.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant was represented in relation to the review by her registered migration agent. The representative requested and was granted time to provide post-hearing submissions, but no further submissions were received.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 ss.101 and 102 of the Act.
Section 101 provides:
Visa 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.
Section 102 provides:
Passenger cards to be correct
A non-citizen must fill in his or her passenger card in such a way that:
(b) no incorrect answers are given.
In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. Relevantly, the Tribunal referred to the application for a Student (subclass 500) visa, lodged by the applicant on 15 February 2019.
The Decision record indicates that:
I.On pages 12 and 13 of the visa application form, the applicant declared “no” to the questions asking about prior conviction in any country and whether the applicant had ever been removed or deported or excluded from any country (including Australia).
II.On pages 14 and 15 of the application, the applicant declared “yes” to the following:
Warning: Giving false or misleading information is a serious offence. The applicants declare that they:
·Have read and understood the information provided to them in this application.
·Have provided complete and correct information in every detail on this form, and on any attachments to it.
·Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.
·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.
III.Based on all information provided, the applicant was granted the student visa on 19 February 2019.
IV.The applicant arrived in Australia on 25 February 2019 and 11 August 2019. On the incoming passenger cards, the applicant declared “no” to the question, “If you are NOT an Australian citizen, do you have any criminal conviction/s?”
V.Information before the Department indicates that in 2018 the applicant was convicted. She was found guilty of conspiracy to defraud the United States of America (US) authorities and deported from the US to the People’s Republic of China (PRC).
The delegate formed the view that it appears that the applicant has not complied with ss.101 and 102.
Notice of Intention to Consider Cancellation (NOITCC)
On 9 December 2019, the Department sent to the applicant a NOITCC, to which the applicant responded on 23 December 2019.
In the submissions, it was noted that:
a.The applicant accepts that there has been non-compliance as described. The applicant confirmed that the correct information is that on 2 April 2018, she was convicted of Conspiracy to Defraud the United States at the United States District Court for the District of Massachusetts (Boston, MA) and that on 3 April 2018, she was deported/removed from the US under Section 237(a)(2)(A)(i)(l) of the Immigration and Nationality Act.
b.The applicant was not aware that “she had in fact been convicted of an offence or that her departure from the United States was considered a deportation”. The applicant had no intention to mislead or provide false information. The conviction in the US would not constitute a substantial criminal record and it cannot be concluded that the visa would not have been granted had the correct information been provided.
c.The applicant travelled to the US at the age of 17 and successfully completed her secondary education. In attempting to apply to college, she sat for the TOEFL examination to gain entry to Pennsylvania State University. The applicant was living alone in the US and her parents provided support from China. She suffered depression and did not achieve the required TOEFL score. She learnt of a common practice among colleagues that students had paid an individual to sit their TOEFL in Massachusetts, Pennsylvania, New Jersey and Arizona. Her friends encouraged her to pay that person and that it was “safe and would guarantee her required grades”. The applicant paid US$3000 to Yue Wang who sat the test on the applicant’s behalf on 5 March 2016. Wang achieved 92 and the applicant gained entry to Pennsylvania State University.
d.The Boston Document and Benefit Fraud Task Force (DBFTF) commenced an investigation which discovered that Yue Wang had sat the test on the applicant’s behalf. On 4 May 2017, the applicant was arrested on charges of Conspiracy to Defraud the United States. The applicant engaged a New York attorney whom the applicant instructed that she wished to return to the PRC, and she did not want to contest the charges. The attorney advised her to plead guilty to facilitate her return to China. A plea-bargaining deal was struck on 2 April 2018 that meant that the applicant would immediately return to China. The applicant was convicted on 3 April 2018 when she was flown back to China. She was not aware that this resulted in a criminal conviction. She was under the impression that her voluntary departure meant that there was a no conviction or deportation.
e.On her return to China, the applicant suffered depression and stress. She felt humiliated and perceived herself as a failure. She saw a psychologist who noted when requested by the representative that the applicant was not aware of the conviction and has acknowledged wrongdoing.
f.The applicant is a genuine student undertaking a Bachelor of Commerce course at the University of Sydney. She is actively involved in university culture.
In support of the submissions, the applicant provided:
·Undated translation of Psychologist Consultation Report and an undated report, referring to the diagnosis of moderate depression.
·International English Language Testing System (IELTS) Test Report Form, dated 11 December 2018, with an overall score of 6.
·Transcript issued by the Pennsylvania State University, dated 16 May 2017.
·Transcript issued by John S. Burke Catholic High School, NY, dated 10 February 2015.
·Flight details for travel from the USA to the PRC on 3 April 2018.
·Letter of support dated 8 May 2017 from Sharon Frey, a member of the host family where the applicant resided until graduation in June 2016.
·Letter of support dated 12 May 2017 from a friend, Chiu Cheng.
·Undated letters of support from classmates/friends Qiulin Zhu, Xinyi Chen, and Yihan Lu.
·Letter of support dated 9 June 2017 from former lecturer Scott McAuley.
·Undated letter of support from a former lecturer Jianing Zhi.
Material provided to the Tribunal
In a Statutory Declaration dated 15 October 2020, the applicant noted:
·She has been extremely anxious and stressed about the hearing due to the possibility of returning to China before completing her degree. After “being deported” from the US, she was in a terrible state of mind. She was humiliated and returned to PRC with “nothing to show for my efforts. I only did my mistake of paying an imposter to take my English test because I so desperately wanted to be accepted into a good university and make myself and my parents proud. I did not commit fraud to steal money or hurt anyone. I did it because I know deep down how much it would mean to my family and I know they sacrificed a lot for me back then and until today”.
·She was suffering from depression and saw a psychologist. She made a second big mistake relating to the provision of incorrect information. She was not trying to hide her time in the US and she did mention that she had studied there. When answering the character questions in the student visa application for, she “simply rushed through them and answered NO because I did not understand that my criminal case in America was counted as a conviction”. Her attorney explained to her that by entering into an agreement with the police, she could return to China or be sent to jail if she were to contest the charges. She is not making excuses for her conduct.
·Her parents have set up a job for her and their colleagues are expecting her return with a degree. The incident became known in China due to news and online publications. She never wanted to read any of that material as she wanted to put the incident behind her.
·If returned to China, she would suffer serious depression and humiliation. She would feel punished again for her prior “wrong doings”. She understands the seriousness of the provision of the incorrect information which she regrets. She is a genuine student and desires to complete her studies.
In submissions of 22 October 2020 (also relying on previous submissions), the representative noted that:
·The applicant accepts the non-compliance as identified in the NOITCC of 9 December 2019.The applicant has a current CoE in the course of Bachelor of Commerce with an end date of 21 January 2022, however due to her academic progress, the applicant is due to complete it in June 2021. The applicant has paid over $80,000 in tuition fees already for this course. The applicant resides at the Sydney University Village and she is committed to her studies. The applicant suffered a year long period of mental health issues on her return to the PRC, due to the stress and remorse of her actions in the US. The applicant had genuine intentions to study in the US.
·After seven months in China, her parents finally allowed her to seek treatment which they had previously not allowed her to receive. As she sought psychologist treatment, it should be accepted that the applicant has acknowledged her actions.
·The applicant did intend to mislead the Department. She did not know her conviction was classified as a conviction. The conviction does not constitute a substantial criminal record. Weight should be given to the applicant’s age, language ability and mental health at the time of the court proceedings. The offence occurred in March 2016 and consideration should be given to the time that has elapsed.
·The applicant has complied with her visa conditions and course requirements. She is actively involved in university culture and has developed a close network of friends and colleagues since arriving in Australia.
·It is doubtful that the provision of the incorrect information would have led to a visa refusal or entry to Australia. The applicant sat a new IELTS exam in November 2018 and that should be held in a positive light.
·As shown in the letter from the parents dated 20 October 2020, they have made arrangements for her to have an internship with Guoze Investment for the position of Assistant Project Analyst. The position has been offered on the basis that the applicant completes her bachelor’s degree. Failure to complete the course will most likely lead to her losing this opportunity.
·The applicant is 24 years of age. After the incident in the US, she returned to PRC without achieving any tertiary education. If the cancellation is affirmed, the applicant would return to PRC without achieving any tertiary qualifications. This would be a significant setback in her professional and personal life. The applicant provided evidence to the Department that when she returned to China from the US, she engaged in mental health treatment given the psychological impact from her arrest, criminal proceedings and the humiliation and suffering brought upon herself and her parents.
·The applicant has matured but she might reexperience those symptoms if she were deported from Australia. The applicant’s parents have invested a significant sum of money to achieve overseas tertiary education. The money spent on her university tuition fees and living expenses in the USA and Australia would be wasted as she has not enrolled or completed any prerequisite diplomas or certificates since finishing secondary school in the US.
In support of the application for review, the applicant provided, a current CoE, academic transcript from the University of Sydney, payment of tuition fees, offer of employment in China with English translation, and letter of support from the applicant’s parents with English translation and copies of ID cards.
In the course of the hearing, the applicant gave evidence that although she was serious about providing correct information in the visa application, when she was completing the form, she had a brief look at the questions and answered “no” without a clear examination of the questions. She stated that she understood that she has made a mistake and should have examined the questions much more carefully and obtained legal and/or migration assistance. She stated that she did not understand the meaning of ‘conviction’ or ‘deportation’. She said she was advised by the US lawyer to plead guilty to facilitate her departure. She stated she did not intend to mislead.
The witness gave evidence that the applicant’s parents have high expectations of the applicant who was ‘pressured’ and made a mistake. She stated the applicant did not understand the process relating to the conviction and suffered from depression.
The Tribunal expressed concerns about the applicant’s contentions that she did not know the meaning of conviction and deportation. The Tribunal indicated that given the events in the US and the fact that the provision of information occurred on three separate occasions, it is difficult to accept that she did not know the meaning of the words or intend to provide the incorrect information. The Tribunal indicated that this would be considered further. The Tribunal advised the applicant that from a legal perspective, the ground for cancellation appears to arise, irrespective of her intention. The applicant acknowledged her error.
The Tribunal questioned the applicant about the guilty plea and confirmed that the applicant is guilty of the offences, as convicted. The applicant stated that she was depressed at the time and wanted to return to PRC. The Tribunal asked and the applicant confirmed that her current course provider is not aware of the conviction. She stated that she would very much like to complete her studies in Australia, due to finish in mid-2021 and that if she were to return to China without completing her degree, she would be assessed in PRC as having an educational level equivalent to year 9. She said she has worked very hard and that her parents have sacrificed about $500,000 on her education.
The Tribunal is mindful that to enliven ss.101 and 102, there need not be actual knowledge that the information is incorrect or intention to provide the incorrect information, although this is relevant when considering the discretionary matters.
Section 99 provides:
Information 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.

Section 100 provides:
Incorrect 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
The Tribunal has serious doubts about the applicant’s contentions that she did not understand the meaning of ‘conviction’ and ‘deportation’. It is difficult to accept that given the fact that she was charged and convicted in the US and she had a lawyer acting for her who, according to the applicant had explained to her that by entering into an agreement with the police, she could return to China or be sent to jail if she were to contest the charges. The Tribunal is of the view that it is reasonable to suggest that the lawyer would have explained all relevant matters. On her own evidence, the applicant was facing a term of imprisonment. The Tribunal finds it implausible that the applicant did not know the meaning of those words. In saying so, the Tribunal is mindful of the applicant’s age and the fact that English is not her first language.
The applicant stated that she was not ‘deported’ but left the US voluntarily. The Tribunal notes that in her Statutory Declaration of 15 October 2020, the applicant uses the word “deported”. In submissions responding to the NOITCC, the representative advised that the applicant had confirmed that the correct information is that on 2 April 2018, the applicant was convicted of Conspiracy to Defraud the United States at the United States District Court for the District of Massachusetts (Boston, MA) and that on 3 April 2018, she was deported/removed from the US under Section 237(a)(2)(A)(i)(l) of the Immigration and Nationality Act. On the evidence, the Tribunal finds that the applicant was convicted and voluntarily removed from the US. The fact that she elected to leave voluntarily does not mean she was not deported. Even if the Tribunal were to accept that she did not understand the meaning of ‘conviction’ and ‘deportation’, the fact is she did not bring to the Australian authorities’ attention any of those matters. A conviction of conspiracy is not a minor issue and in this case it goes to the core of academic integrity; to get someone else to sit for the English language test was fundamental to the applicant’s ability to get admission to Pennsylvania State University. She was applying for a student visa in Australia. Her academic history is of direct relevance.
The Tribunal has given regard to the references provided by the applicant, including the evidence of the witness, essentially relating to the applicant’s positive personal attributes. The Tribunal has given some weight to that material and has carefully considered the evidence in totality. On balance, the Tribunal is satisfied that the applicant had intentionally provided the incorrect information in the student visa application form and the passenger cards. The Tribunal did not find her explanations convincing or persuasive.
For those reasons, the Tribunal finds that there was non-compliance with ss.101 and 102 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 r.2.41 of the Regulations. Briefly, they are:
· the correct information
The correct information is that on 2 April 2018, the applicant was convicted of Conspiracy to Defraud the United States at the United States District Court for the District of Massachusetts (Boston, MA) and that on 3 April 2018, she was deported/removed from the US under Section 237(a)(2)(A)(i)(l) of the Immigration and Nationality Act.
The Tribunal gives this aspect significant weight in favour of cancellation.
· the content of the genuine document (if any)
There is no issue concerning a genuine document.
The Tribunal gives this aspect 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
In submissions it was contended that it cannot be established that had the correct information been provided, the visa would not have been granted. The representative noted that the conviction does not constitute a substantial criminal record.
The direct question before the Tribunal is not whether the conviction would constitute a substantial criminal record, although this could be relevant to the assessment of the character requirements. Given that the applicant applied for a student visa and as the conviction related to academic matters, this is of direct relevance. Had this information been available, the delegate would have engaged in more scrutiny of the application particularly the applicant’s past studies and qualifications. It cannot be said that the applicant’s getting another person to sit for an English test to gain entry to an academic institution is not relevant.
The Tribunal is satisfied that the conviction and its circumstances are directly relevant to the assessment by the delegate of the visa criteria, including the Genuine Temporary Entrant requirement. A primary applicant for a Subclass 500 visa needs to demonstrate that he or she is a genuine applicant for entry and stay as a student because:
·they intend genuinely to stay in Australia temporarily, having regard to their circumstances, their immigration history, the intentions of a parent/guardian/spouse (if the applicant is a minor), and any other relevant matter
·they intend to comply with any conditions of the visa, having regard to their record of compliance with any conditions of previously held visas and their stated intention to comply with any conditions to which the visa may be subject, and
·of any other relevant matter.[1]
[1] Cl.500.212.
The expression ‘genuinely intends to stay in Australia temporarily’ has been subject to judicial consideration in the context of the equivalent pre 1 July 2016 student visa criteria. It requires that the applicant must unqualifiedly intend his or her stay to be temporary.[2] In Saini v MIBP Judge Cameron held that an intention to remain in Australia if qualified to do so at the end of the student visa, would amount to the lack of an intention to stay temporarily, because the intention to stay temporarily would not be unqualified.[3] In upholding his Honour’s judgment, Justice Logan held that what is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.[4]
[2] Saini v MIBP [2015] FCCA 2379 at [23], upheld on appeal in Saini v MIBP [2016] FCA 858.
[3] Saini v MIBP [2015] FCCA 2379 at [23].
[4] Saini v MIBP [2016] FCA 858 at [30]. Justice Logan expressly disagreed with the contrary interpretation of this criterion in Khanna v MIBP [2015] FCCA 1971. While Khanna was overturned on appeal in MIBP v Khanna [2016] FCA 142, that judgment did not expressly address the construction of cl 572.223(1)(a).
When determining whether the genuine temporary entrant criterion is met, decision makers must have regard to Ministerial Direction No 69 Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No 69). Direction No 69 refers to a series of factors which must be considered by decision makers, set out under headings corresponding with the matters set out in cl. 500.212. Broadly speaking, these cover:
·       the applicant’s circumstances in their home country – that is
-whether the applicant has reasonable reasons for not studying in their home country
-the extent of personal ties to their home country
-the economic circumstances of the applicant
-military service commitments
-political and civil unrest
·       the applicant’s potential circumstances in Australia – that is
-the applicant’s ties with Australia
-evidence that the student visa programme is being used to circumvent the intentions of the migration programme
-whether the student visa is being used to maintain ongoing residence
-whether the primary and secondary applicants have entered ‘a relationship of concern’ for student visa purposes[5]
[5] That is, a contrived relationship.
-the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider
·       the value of the course to the applicant’s future – that is
-whether the proposed course is consistent with the applicant’s current level of education and whether it will assist the applicant’s employment prospects in the home country
-the relevance of the course to the student’s past or future employment
-remuneration the applicant could expect to receive in a country other than Australia as a result of the study
·       the applicant’s immigration history – that is
-previous visa applications for Australia and other countries
-previous travel to Australia and other countries
·       the intentions of a parent, legal guardian or spouse of the applicant (if the applicant is a minor and is a primary or secondary applicant for a subclass 500 visa)
·       any other relevant matters.
Although Direction No 69 indicates that it should not be used as a checklist, but rather that the matters it lists are intended to guide decision makers when considering the applicant’s circumstances as a whole and reaching a finding about whether they satisfy the genuine temporary entrant criterion.[6] Direction No 69 makes clear that, in addition to the factors it specifies, decision makers should take into account any other relevant information provided by the applicant or otherwise available, and consider whether further inquiries should be undertaken.[7] In this instance, the applicant’s immigration history is of direct relevance.
[6] Direction No 69, Part 2 at [1].
[7] Direction No 69, Part 2 at [2]–[3].
On the evidence, the Tribunal is satisfied that the applicant’s conviction, migration history in the US and nature of the conviction as it relates to academic conduct, are directly relevant to the assessment of the visa criteria, including the Genuine Temporary Entrant requirement. The Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on the incorrect information provided in the visa application form.
The Tribunal gives this consideration significant weight in favour of cancellation.
· the circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant provided incorrect information in the visa application and passenger cards on entry to Australia on 25 February 2019 and 11 August 2019. The applicant provided incorrect information about the conviction of Conspiracy to Defraud the United States at the United States District Court for the District of Massachusetts (Boston, MA) and that on 3 April 2018, and the deportation from the US under Section 237(a)(2)(A)(i)(l) of the Immigration and Nationality Act.
The applicant has contended that she did not understand the meaning of ‘conviction’ and ‘deportation’. For the reasons outlined above, the Tribunal has not accepted those contentions and found that the applicant has intentionally provided the incorrect information. A conviction of conspiracy in these circumstances is not a minor issue and in this case it is fundamental to academic integrity.
The applicant arranged for an imposter to sit for the English language test which was fundamental to the applicant’s ability to get admission to Pennsylvania State University. The Tribunal has carefully considered the evidence in totality and is satisfied that the applicant had intentionally provided the incorrect information in the student visa application and the passenger cards.
The applicant has provided multiple references essentially attesting to her being honest, respectful, dedicated and helpful. The Tribunal has given weight to that material however, the Tribunal gives significant weight of the conviction which she did not disclose to the Australian authorities.
The Tribunal gives this consideration significant weight in favour of cancellation.
· the present circumstances of the visa holder
The applicant is currently studying at the University of Sydney a Bachelor of Commerce course which commenced on 25 February 2019. The applicant stated that due to her progress, she will be completing the course in mid-2021. The Tribunal acknowledges that the applicant did undertake a new English test, an IELTS in December 2018 and that she obtained the required score to satisfy the English language requirement. The Tribunal further acknowledges that her progress in the Bachelor of Commerce course is satisfactory. The Tribunal has given regard to the Psychologist Report that the applicant had sought assistance in China subsequent to her deportation due to mental health issues and that it is plausible that her mental health could deteriorate in case of the visa cancellation. The Tribunal has noted the Psychologist’s comments that the applicant did not know that she had a conviction, however for the stated reasons, the Tribunal has found otherwise.
The Tribunal gives significant weight to the applicant’s circumstances in her favour particularly to the real possibility that she would not be able to complete her current course which would impact on her ability to work in the position she has been offered in China. The Tribunal appreciates that the applicant is a young person who if returned prior to the completion of her course, would be disadvantaged in China where she would be assessed at a much lower educational level. The Tribunal acknowledges that the applicant’s parents have invested significant finances in her education and that they would genuinely be disappointed. She would also be disappointed.
The Tribunal gives significant weight to this consideration in the applicant’s favour.
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence to suggest that the applicant has attempted to correct the record.
The Tribunal gives this aspect weight in favour of cancellation.
· any other instances of non-compliance by the visa holder known to the Minister
There is no evidence of any other instances of non-compliance.
The Tribunal gives this aspect weight in favour of the applicant.
· the time that has elapsed since the non-compliance
The non-compliance occurred on three occasions, the last occurred on 11 August 2019.
The applicant has claimed that she has formed friendships and connections in Australia and the Tribunal accepts this as being plausible. However, the Tribunal does not consider a period of just over 12 months to be of significance.
The Tribunal gives this aspect some weight in the applicant’s favour.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of any breaches of the law.
The Tribunal gives this aspect neutral weight.
· any contribution made by the holder to the community.
The Tribunal accepts that the applicant has contributed to the university community. She also has friends and acquaintances.
The Tribunal gives this aspect some weight in her favour.
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 are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
In case of cancellation and unless other arrangements are made, the applicant could be detained and removed from Australia, under ss.189 and 198 of the Act. She would also be impacted by s.48 of the Act and PIC 4013.
The Tribunal considers those potential consequences to be intended by the legislation and in the applicant’s case, they do not weigh in her favour.
·whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal to suggest that there would be any consequential cancellation.
The Tribunal gives this aspect neutral weight.
·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
There is no information before the Tribunal to suggest that Australia would be in breach of any of its international obligations, such as non-refoulement obligations in the event of cancellation.
The Tribunal gives this aspect neutral weight.
·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
The Tribunal appreciates that the visa cancellation could result in emotional, psychological, and potentially financial hardship as the applicant would not be able to continue her studies in Australia. The Tribunal has considered the totality of the evidence and is satisfied that the applicant is a genuine student who is progressing well in her course. The Tribunal does not see this finding to be contradictory to the Tribunal’s earlier reasoning concerning the consideration of whether the decision to grant the visa was based, wholly or partly, on the incorrect information, particularly the assessment of the Genuine Temporary Entrant requirement which is part of the visa application assessment process.
The Tribunal gives the potential hardship some weight in the applicant’s favour.
There are no other matters requiring consideration
The Tribunal has carefully considered the material before it individually and cumulatively. Although there are aspects in the applicant’s favour, there are significant consideration in favour of cancellation.
On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the NOITCC. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Antoinette Younes

Senior 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.
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.