Kamboj (Migration)

Kamboj (Migration) [2024] AATA 3382 (11 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kuber Kamboj
REPRESENTATIVE:  Mr Nishant Malik (MARN: 0640566)
CASE NUMBER:  2309894
HOME AFFAIRS REFERENCE(S):          BCC2022/5227654
MEMBER:Gabrielle Cullen
DATE:11 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 September 2024 at 8:53am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – bogus documents – educational history – false education documents – previous visa applications – separation from the applicant’s partner – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 359; Direction No.69
Migration Regulations 1994, Schedule 2, cl 500.212; Schedule 4, Public Interest Criteria 4013, 4020; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India. On 17 January 2018 the applicant applied for a Student (Higher Education Sector) (Subclass 500) visa as the primary applicant which was granted on 22 January 2018 valid to 15 March 2021. He arrived in Australia on 2 February 2018. On 1 March 2021 he made an application for a Student (Higher Education Sector) (Subclass 500) visa. On 17 May 2021 he was granted the visa valid to 28 June 2024.
On 9 May 2023, the delegate sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC or s 107 Notice) of his Student visa under s 109 of the Act and informed him that a response must be provided in writing within 14 calendar days after he was taken to have received the letter. The applicant did not respond to the NOICC.
On 8 June 2023 the delegate contacted the applicant on his mobile telephone number and in discussion the applicant consented to receiving correspondence electronically via email. The applicant agreed for the NOICC to be reissued. The Department re-issued the NOICC and dated it 8 June 2023 which was sent to the applicant via the email he provided.
The applicant did not respond to the NOICC.
On 28 June 2023, the delegate cancelled the applicant’s Student visa under s 109 on the basis that he had not complied with s 101 and s 103 of the Act as he had provided incorrect information and bogus documents to the Department as part of his first Student Visa application and provided similar incorrect information in his second Student visa application. The delegate outlined s 107A which refers to non-compliances in respect of any previous visa held by the applicant.
On 6 July 2023, the applicant applied to the Tribunal for a review of that decision and attached the notification letter regarding the decision to cancel his visa under s.109 as well as the Department decision to cancel the visa.
The applicant appeared before the Tribunal via video on 15 August 2024 to give evidence and present arguments. Ms Shaikh, the applicant’s de facto partner, also gave evidence via telephone at the request of the Tribunal. His representative attended the hearing.
Following the hearing he was given until 2 September 2024 to provide further information in response to the s 359AA matters raised and to provide documents, including evidence that support his claim that that he is living in a de facto relationship with Ms Shaikh. The applicant responded with numerous documents on 2 September 2024.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
s.375A Non- Disclosure Certificate
The Tribunal advised at hearing that there is a s 375A certificate on the Department’s file which it considered is valid. It outlined the reasons given by the Department for the certificate. The applicant accepted the Certificate was valid.
The Tribunal outlined at hearing, via the process outlined in s 359AA, the gist of the information it covered in general including an anonymous allegation the applicant used false education documents to obtain his Student visa. It also outlined information from the Department regarding the verification checks, that led the Department to find he had provided incorrect information and bogus documents regarding his education in India. This information was also outlined in the Department decision.
The applicant responded at hearing, as outlined in further detail below, that he obtained the level of education referred to in his application for the visa but not to as high a standard. He referred to the education documents he submitted prior to the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. Section 107A refers to non-compliances in respect of any previous visa held by the applicant.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s 107?
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 and s 103.
The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 28 June 2023.
The information indicates that on 17 January 2018 the applicant applied for a Student (Higher Education Sector) (Subclass 500) visa as the primary applicant. He was assessed by the delegate as meeting the criteria and the visa was granted on 22 January 2018 valid to 15 March 2021. He arrived in Australia on 2 February 2018. On 1 March 2021 he made another application for a Student (Higher Education Sector) (Subclass 500) visa. The delegate assessed the criteria and on 17 May 2021 he was granted the visa valid to 28 June 2024.
In the NOICC dated 8 June 2023, the delegate set out the particulars of the possible non‑compliance with s 101(b) and s 103 on the basis of incorrect information provided to the Department in the applications made on 17 Janaury 2018 and 1 March 2021 and bogus documents submitted in regard to the application made on 17 January 2018. It raised with the applicant that the Department reasonably suspected he provided bogus documents with his application made on 17 January 2018 within the meaning of s 5(1)(b) as the documents were counterfeit.
The Department decision notes that in the NOICC, the delegate set out the particulars of the non‑compliance being that in the application for the Student visa in 2018 he provided the following incorrect answers.
·On page seven, under the heading ‘Genuine temporary entrant’, where applicants were required to provide information to demonstrate they meet the Genuine Temporary Entrant criteria, he attached a statement of purpose in which he stated that he had completed year 10 and 12 from Government Inter College Kelakhera in year 2014 and 2016 respectively. The applicant further stated that he had a background as a commerce student, and that his proposed study of the Bachelor of Business was relevant to his educational background.
·On page eight, under the heading ‘Education’, the applicant provided the following answers (in bold):
Highest level of schooling completed:     Secondary school - Year 12 or equivalent
Corse Name:   Intermediate Examination
Institution name:  Board of School Education Uttarakhand
·On page 14 he answered yes to the following declarations
Have read and understood the information provided to them in this application.
o Have provided complete and correct information in every detail on this form, and on any attachments to it.
o 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.
o 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
The delegate noted that in the second visa application dated 1 March 2021 he provided the same answers specifically that he had completed the Senior Secondary Examination Certificate in years 10 and 12 at the Board of School Education Uttarakhand in India and that these are his highest level of schooling completed outside Australia.
With his first visa application he also uploaded with his online application documents relating to his claimed educational history as follow.
·A copy of an Intermediate Examination Certificate Cum. Marksheet No. 130044755, purportedly issued by the Board of School Education Uttarakhand on 26 May 2016, outlining subjects completed at Government Inter College Kelakhera.
·High School Examination Certificate, purportedly issued by the Board of School Education Uttarakhand on 27 May 2014, certifying that the applicant passed the High School examination held in March 2014 at Government Inter College Kelakhera.
·Marksheet No. 146188 for the High School Examination in 2014, purportedly issued by the Board of School Education Uttarakhand on 27 May 2014, certifying that the applicant completed the outlined subjects at Government Inter College Kelakhera.
The NOICC as recorded in the Department decision notes that the Department undertook verification checks with the institution, Government Inter College Kelakhera, in relation to the authenticity of the provided educational documents on 9 March 2023 and 23 March 2023. The checks concluded that these documents are not genuine and the applicant was not a student of Government Inter College Kelakhera.
Based upon the above information the delegate considered in the NOICC that the applicant had provided incorrect answers and not complied with s 101(b) in the first Student visa lodged on 17 January 2018. The delegate also noted he provided the same incorrect answers as to his education in the second Student visa he applied for on 1 March 2021. Specifically, the delegate found the applicant had provided the following incorrect information:
·details of his claimed educational history completed outside Australia in his statement of purpose; specifically, that he completed years 10 and 12 from Government Inter College Kelakhera in year 2014 and 2016 respectively; and that he had a background as a commerce student; and his proposed studies in the Bachelor of Business was relevant to his educational background. This was in response to the question ‘Give details to support the applicant's ability to meet the criteria and ensure supporting documents are attached’ on page seven, at the section of the application form titled ‘Genuine temporary entrant’.
·details of his claimed educational history completed outside Australia, on page eight, at the section of the application form titled ‘Education’. Specifically, it noted he stated that the highest level of schooling he completed outside Australia was Secondary school – Year 12 or equivalent at Board of School Education Uttarakhand in India.
Based upon the above information the delegate considered in the NOICC that the applicant had provided incorrect answers in both his first and second visa application.
The delegate found the applicant had not complied with s 103 in the first Student visa lodged on 17 January 2018 as he had provided the following bogus documents.
·Intermediate Examination Certificate Cum. Marksheet No. 130044755, purportedly issued by Board of School Education Uttarakhand on 26 May 2016
·High School Examination Certificate, purportedly issued by Board of School Education Uttarakhand on 27 May 2014
·Marksheet No. 146188 for the High School Examination in 2014, purportedly issued by Board of School Education Uttarakhand on 27 May 2014
The delegate considered that the above listed documents are bogus documents, within the meaning provided by paragraph (b) of section 5(1) of the Act which states as they are counterfeit.
No further response was received from the applicant.
On 28 June 2023 the delegate cancelled the applicant’s Student visa under s 109 on the basis that the applicant had not complied with s 101(b) and s 103 of the Act as he had provided incorrect information and bogus documents to the Department on the basis of the information outlined above and that no further information had been provided by the applicant to dispute the findings of the Department’s integrity check. The delegate noted that Section 107A provides that failure to comply with subsections 101 and 103 of the Act in connection with a previous visa application may be grounds for cancellation of the visa holder’s current visa and as such providing the incorrect information and bogus document in the application for the Student visa granted on 22 January 2018 may result in the student visa granted on 17 May 2021 being liable for cancellation. The delegate also considered the discretionary criteria.
Prior to the hearing the applicant provided the following education documents which he claimed are genuine:
·His Senior School Certificate Examination 2016 issued by the Central Board of Secondary Education indicating he attended Red Rose Convent School and achieved 73 (B2) in English, 50 (D2) in Physics and Chemistry, 38 (D1) in Mathematics and 54 (D1) in Physical Education. He also undertook Work Experience, Physical and Health Education and General Studies achieving a B2 positional grade in these three subjects. The overall result was Pass.
·Certificate issued by the Central Board of Secondary Education noting the applicant has passed the Senior School Examination of the Board in 2016 in the above named eight subjects.
·His Central Board of Secondary Education, Secondary School Examination Results (2012-2104) noting he attended Red Rose Convent School, indicating B1 and B2 grades.
At hearing the Tribunal outlined in detail the issues before the applicant as outlined above, including the outcome of the integrity check, and that it may find he did not comply with s 101(b) in that that the education information in the two previous Student visa applications was incorrect. It also noted that it may find that he did not comply with s 103 as with his first visa application he caused or provided bogus documents to the Department. It referred to s 5(1) and on the basis of the verification check raised with him that it may reasonably suspect the education documents from Government Inter College Kelakhera are counterfeit in the manner outlined in s 5(1)(b).
The applicant accepted that he had never attended Government Inter College Kelakhera and the education information provided was incorrect in both applications and the documents were not genuine and were bogus documents within the meaning of s 5(1)(b). He said in the 2018 application he was not aware that he provided the incorrect information and bogus education documents. He said he relied on an agent. He said he provided the genuine education documents, which he has recently submitted, and he was told he would be unable to obtain the visa as his grades were too low. He accepted that when he applied for the second visa, he provided the incorrect information as he was concerned if he then gave the correct information, he would not be granted the visa.
The applicant indicated that when he met with the agent to apply for the Student visa in 2018; he said he knew he was applying for a Student visa. He said they met a couple of times; he advised him he wanted to apply for a Student visa and instructed him to act on his behalf. He said he provided the correct documents and education information to him. The agent advised him he would get him the Student visa. He said he signed the application form but did not read it. He said he signed the GTE Statement but did not read it He said he did not know the incorrect information and bogus education documents had been provided. With regard to the second Student visa application; he said he knew the information was incorrect but was advised to provide the same education information as in the first application otherwise it would be refused.
The applicant’s representative indicated that compliance by agents is not strong in India and the applicant did not know. He noted that it was difficult with regard to the second application as he knew the visa would be refused if he then provided the correct information.
Consideration
The applicant did not dispute that incorrect information as outlined above was provided in both applications for the Visa and that the education documents provided were bogus within the meaning of s.5(1)(b).
With regard to the first application, whether he knew or did not know of the provision of the incorrect information in the first visa application is not relevant because under s. 98, an applicant who does not fill in his application form is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf and under s.99 of the Act any information that the applicant gave or provided or caused to be given or provided on his behalf, to an authorised system (the online application) is taken for the purposes of s.101(b) to be an answer to a question in the applicant’s application form. Further, s.100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
The evidence indicates the Agent was acting on behalf of the applicant and the applicant instructed him to prepare and lodge the application for a Student visa on his behalf and the applicant therefore caused him to provide the answers in the visa application that was provided through the Department’s authorised system. The information is therefore incorrect even if the applicant did not know that it was incorrect with regard to the first application. Further, s.101 of the Act puts the onus on the applicant to fill in or complete his application form in such a way that all questions on it are answered and no incorrect answers are given or provided.
It is therefore not relevant, for the purpose of establishing whether there was non-compliance as described in the NOICC, whether or not the applicant had knowledge of the information that was provided on his behalf by the agent.
With regard to the second application, the applicant has indicated he knew the information provided was incorrect.

The applicant did not dispute or challenge the information discovered by the Department that he never attended Government Inter College Kelakhera, never completed year 10 and 12 while at this School and did not undertake the year 12 examination while attending this school, achieving the Intermediate examination issued by the Board of School Education Uttarakhand in 2016. The Tribunal finds on the evidence before it that the answers in the visa application form and attached statement of purpose in the first application and answers in the second application about regarding his education and education achievements are incorrect. It follows that there has been non-compliance by the applicant with s.101(b) of the Act in the way described in the notice.
Based on the information provided from the Department’s verification check and the applicant’s evidence the Tribunal reasonably suspects the education documents, including Intermediate Examination Certificate Cum. Marksheet No. 130044755, purportedly issued by Board of School Education Uttarakhand on 26 May 2016, the High School Examination Certificate, purportedly issued by Board of School Education Uttarakhand on 27 May 2014 and the Marksheet No. 146188 for the High School Examination in 2014, purportedly issued by Board of School Education Uttarakhand on 27 May 2014 submitted with the first application are counterfeit and are bogus documents within the meaning of s 5(1)(b).
The Tribunal accepts the applicant’s evidence that he engaged an agency in India to act on his behalf in respect of the first visa application. The applicant’s evidence is that he was not personally involved in the preparation of bogus documents and was unaware of that. However, the applicant was sent the application and statement containing the incorrect information as to his education and application and signed the document but did not read it. The evidence before the Tribunal is that the applicant relied entirely on the agent, without concern, to prepare and lodge the visa application on his behalf. He met with the agent a couple of times and did not check what was submitted in or with the application when he signed it. The evidence indicates the applicant was advised that with his grades he was unlikely to obtain the visa and then instructed the Agent to obtain a Student visa. The Tribunal is of the view the applicant had little concern or interest in what information and documents were being provided as long as it achieved the desired outcome of a Student visa.
On the evidence before it, the Tribunal is satisfied that the applicant had authorised the agent to act on his behalf and relied entirely on the agent to take care of the application without checking or verifying what was being lodged on his behalf. In the circumstances, the Tribunal considers that the applicant has provided, or caused to be provided, to an officer, authorised system or the Minister bogus documents. For these reasons, the Tribunal finds that there was non-compliance with s 103 by the applicant in the way described in the s 107 notice.
In making this finding it has considered he has now submitted the genuine education documents but this does not alter or change the above findings.
The Tribunal therefore finds that the applicant has provided incorrect information in the first and second visa applications and caused bogus documents to be given in the first visa application. It follows that there has been non-compliance by the applicant with s 101(b) and s 103 of the Act in the way described in the s 107 notice. Section 107A refers to non-compliances in respect of any previous visa held by the applicant.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. The Tribunal has considered each of the circumstances as follows.
The Tribunal raised these with the applicant at hearing and the evidence provided as well as written evidence provided is considered below.
Submissions and evidence at hearing
The applicant did not respond to the NOICC.
At hearing the Tribunal discussed with the applicant the below discretionary criteria and the evidence provided is outlined below. He also referred to being in relationship with Ms Shaikh.
The Tribunal raised with the applicant via s 359AA the adverse information as to his study record as outlined in the PRISMS record.
Ms Shaikh also gave evidence at hearing via video, at the request of the Tribunal. She provided evidence consistent with the applicant as to her visa status and relationship with the applicant, as outlined below.
After the hearing the applicant provided the following documents.
·The Indian passport of Ms Muskaan Salim Shaikh valid to 21 December 2032.
·Numerous photos of the applicant and Ms Shaikh together.
·Receipt dated 15 August 2024 from Service NSW for the applicant and Ms Shaikh to register their relationship.
·Letter from the Department granting Ms Shaikh a Temporary Graduate (Subclass 485) visa on 19 October 2023 valid to 29 May 2028.
·Evidence of the applicant and Ms Shaikh holding a joint electricity account for their unit in Toongabbie as at 3 October 2023, 6 November 2023, 5 January 2024, 5 April 2024.
·Tenant Payment History and Tenant Agreements indicating both are joint tenants at their current and former units in Toongabbie from March 2023 to date.
·Joint bank account of the applicant and Ms Shaikh opening on 11 April 2023.
·Expression of Interest to the Department of Home Affairs for Skill Select by Ms Shaikh submitted on 16 August 2024 indicating she would be accompanied by her partner in a future application, referring to the applicant’s date of birth and indicating her relationship status as de facto.
The correct information
The applicant did not dispute or challenge the information discovered by the Department that he never attended Government Inter College Kelakhera, never completed year 10 and 12 while at this School and did not undertaking the year 12 examination while attending this school, achieving the Intermediate examination issued by the Board of School Education Uttarakhand. It is incorrect he achieved 68 in Hindi, 73 in English, 71 in Economics, 69 in Accountancy and 69 in Business Studies achieving A2 or A1 marks. It is incorrect as outlined in his application under the GTE section and in the statement that that his proposed study of the Bachelor of Business was relevant to his educational background as he had studied commerce subjects.
The correct information is that he completed his Senior School Certificate Examination 2016 certified by the Central Board of Secondary Education attending Red Rose Convent School achieving 73 in English, 50 in Physics and Chemistry, 38 in Mathematics and 54 in Physical Education, as well as B1 in Work Experience, Physical and Health Education and General Studies. The correct information was that he did not study any commerce subjects, rather the above subjects.
The applicant’s representative submitted that there was no need for the applicant to provide the incorrect information and bogus documents. He submitted that while his grades were lower than in the submitted bogus documents, he would have received the offer to study in Australia.
While the Tribunal accepts the evidence he has since submitted indicates he passed his Senior School Certificate Examination in 2016, the grades he achieved and the subjects he studied would have been relevant evidence considered when accepting that the applicant met the genuine temporary entrant criterion under cl 500.212 of Schedule 2 to the Regulations, and ultimately the grant of the first Student visa. Ministerial Direction No.69, Assessing the Genuine Temporary Entrant Criterion for Student visa and Student Guardian visa applications, applicable at that time, under 11(e), refers to previous study and qualifications in assessing this criterion. In particular, he referred to studying the Bachelor of Business as he had studied commerce subjects, which would have also been relevant but was not correct information.
The integrity of the migration programme relies on, amongst other things, applicants providing correct information in visa application forms and in their dealings with the relevant agencies including the Department.
The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The content of the genuine document (if any)
The genuine documents would have shown he completed his Senior School Certificate Examination 2016 certified by the Central Board of Secondary Education attending Red Rose Convent School achieving 73 in English, 50 in Physics and Chemistry, 38 in Mathematics and 54 in Physical Education, as well as B1 in Work Experience, Physical and Health Education and General Studies. The overall result was Pass.
This would have been relevant evidence considered when determining whether the applicant met the genuine temporary entrant criterion under cl 500.212 of Schedule 2 to the Regulations, and ultimately the grant of the Student visa. Ministerial Direction No.69, applicable at that time, Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications, under 11(e), refers to previous study and qualifications in assessing this criterion. His lower marks and what he studied would have been central to the assessment of whether he met cl 500.212, particularly as he had indicated he was studying the Bachelor of business.
The integrity of the migration program relies on, amongst other things, applicants providing genuine documents.
The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
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
One of the primary criteria for the grant of the Subclass 500 (Student) visa is that the applicant meets the genuine temporary entrant criterion, cl.500.212. Direction No.69, applicable at that time, requires the decision maker to consider the applicant’s potential circumstances in Australia. At 11(e), the Direction directs the decision maker to consider the applicant’s previous study and qualifications.
The Tribunal considers that the decision to grant the first visa was therefore based, in part, on the incorrect information and bogus documents as to the applicant’s successful completion of his Senior School Certificate Examination 2016 achieving the A1 and A2 grades in Hindi, English, Economics, Accountancy and Business Studies as well as his claim that his proposed study of the Bachelor of Business was relevant to his educational background and particularly his study of commerce subjects.
While the Tribunal accepts he achieved his Senior School Certificate Examination 2016, it does not accept his lower grades and what he studied would not have been relevant and impacted in the Department’s assessment that he met cl 500.212. Specifically, he did not study any commerce subjects which questions the relevance of enrolling in the Bachelor of Business.
The Tribunal therefore considers that the decision to grant the first visa was based in part on the incorrect information and bogus documents.
As he had since achieved a Diploma of Business it does not accept his study in India influenced the decision to meet cl 500.212 when the Department assessed whether he met cl 500.212 in the second visa application. However, not providing the correct information in the second visa application, denied the Department the opportunity to determine on the correct information whether he met Public Interest Criterion 4020.
The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the incorrect information and bogus documents were provided in support of the first Subclass 500 Student visa application and the incorrect information was included in the second Subclass 500 Student visa application. The applicant has accepted the education information provided was incorrect and the documents submitted were bogus documents.
The Tribunal has considered the claim he was unaware that incorrect information and bogus documents were submitted with the first application. The Tribunal accepts the applicant’s evidence that he engaged an agent in India to act on his behalf in respect of the first visa application. The applicant’s evidence is that he was not personally involved in the preparation of bogus documents and was unaware of that. However, the applicant was sent the application containing the incorrect information and application and signed the document but did not read it. The evidence before the Tribunal is that the applicant relied entirely on the agent, without concern, to prepare and lodge the visa application on his behalf. He met with the agent a couple of times and did not check what was submitted in the application when he signed it. The evidence indicates the applicant was advised that with his grades he was unlikely to obtain the visa and then instructed the Agent to obtain one. The Tribunal is of the view the applicant had little concern or interest in what information and documents were being provided as long as it achieved the desired outcome of a Student visa. It views him as being recklessly indifferent as to what was contained in the application.
The applicant has accepted he provided the incorrect information in the second visa application but was concerned it would be refused if he provided the correct information.
There are no factors outside the applicant’s control that led to the provision of the incorrect information and bogus documents.
The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The present circumstances of the visa holder
In his evidence to the Tribunal at hearing the applicant referred to his study in Australia and the effect that the cancellation of his visa would have on him. He noted he had successfully completed a Diploma of Business, Certificate III in Light Vehicle Mechanical Technology and Certificate III in Automotive Technology. He said he is currently enrolled in a Certificate IV in Automotive Mechanical Diagnosis. He said his aim is to complete the course and return to India to open a garage.
The Tribunal asked why he could not return to India and undertake courses there and he said that the courses in India are not as good and the courses in Australia are far better, which the Tribunal accepts.
It gives this consideration some weight in favour of exercising its discretion not to cancel the visa.
The Tribunal raised with him via s 359AA the details of his study history since his arrival and that he was granted the visa to come to Australia to study a Bachelor of Business, did not complete this course nor the Bachelor of Information Technology he subsequently studied. He referred to back injuries and having to return to India for treatment. The Tribunal noted when raising the relevance of the PRISMS record that there is no evidence he sought deferment of this course. Notwithstanding, his past poor study record the Tribunal accepts he is now achieving course progression.
The Tribunal accepts from the documentary and oral evidence before it that the applicant is currently in a relationship with Ms Muskaan Salim Shaikh, they are living together in a de facto relationship and have been doing so since 2023. It accepts on the evidence before it that they have been living together for approximately two years and have known each other for three years. It accepts that Ms Shaikh was granted a Temporary Graduate (Subclass 485) visa on 19 October 2023 valid to 29 May 2028. It accepts she has recently informed the Department, via the EOT Skill Select Pathway that she is in a relationship with the applicant and her claim she will advise the Department of the relationship with the applicant when and if she applies for a Subclass 189 visa. The applicant was not declared at the time of application for the subclass 485 visa.
It accepts that if his visa is cancelled; the applicant will depart Australia, but Ms Shaikh will remain in Australia on the subclass 485 visa. It accepts she may apply for a further visa. Once offshore, there are no restrictions on the applicant applying for a visa, however under Public Interest Criterion (PIC) 4013 he may not be granted a further visa for three years from the date of cancellation unless he meets PIC 4013(1)(b), which may be difficult. Of note PIC 4013 is not a criterion for a Subclass 485 visa, Subclass 189 visa or Subclass 309 visa.
It accepts therefore that the cancellation may result in the separation from his partner for at a minimum until 28 June 2026, as he most likely would be unable to satisfy the criteria in PIC 4013 prior to June 2026 as it is likely his partner will remain on a temporary visa, although PIC 4013 is not a criterion for the subclass 485 visa. The Tribunal accepts the separation would be lengthy, difficult emotionally, financially and mentally for the applicant. It accepts they could meet outside Australia and she could return to India for some periods. It has considered below the hardship for the applicant’s partner, Ms Shaikh.
The Tribunal gives this consideration significant weight in favour of exercising its discretion not to cancel the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal finds there are no other instances of non-compliance by the applicant known to the Tribunal. The Tribunal gives this factor neutral weight.
The time that has elapsed since the non-compliance
The non-compliance occurred when the application was made on 17 January 2018 and again with regard to incorrect information on 17 May 2021. The applicant arrived in Australia on 2 February 2018. While the Tribunal acknowledges that since this period the applicant has established himself in Australia, the Tribunal notes the applicant has been on notice, since being notified by the Department on 28 June 2023 that there was evidence of non-compliance with the visa application which may result in the cancellation of the visa.
In these circumstances the Tribunal gives his length of time in Australia of over 6 years low weight in favour of the Tribunal exercising its discretion not to cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal which suggests that there have been breaches of law by the applicant since the non-compliance.
Any contribution made by the visa holder to the community
At hearing the applicant indicated he had not contributed to the community. The Tribunal gives this consideration neutral weight.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be any consequential cancellations under s 140

The applicant claims he is in a de facto relationship, but she is not part of this application. He has no children. Therefore, there is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor neutral weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled, the applicant will continue to hold a Bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under public interest criterion (PIC) 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore. There is no restriction on which visa he can apply for once he leaves Australia. However, those are also intended and legitimate consequences of cancellation.
The Tribunal gives this consideration neutral weight.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
When asked by the Tribunal whether he had any fear of returning to India there was a long pause and then the applicant said he did not. However, later he referred to difficulties he may face on return as his partner is a Muslim and interfaith marriage and partnership is difficult in India. The Tribunal is of the view that his claims can be fully considered via a protection visa application if he fears the relevant harm on return. The Tribunal is of the view that this is the appropriate mechanism for assessing his claims if he fears return to India.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
As noted above, the Tribunal accepts from the documentary and oral evidence before it that the applicant is currently in a relationship with Ms Muskaan Salim Shaikh, they are living together in a de facto relationship and have been doing so since 2023. It accepts that Ms Shaikh was granted a Temporary Graduate (Subclass 485) visa on 19 October 2023 valid to 29 May 2028. It accepts that if his visa is cancelled; the applicant will depart Australia, but Ms Shaikh will remain in Australia on the subclass 485. It accepts she may apply for a further visa. It accepts she is currently not working and the applicant is supporting her. It accepts the hardship on her mentally, emotionally and financially would be significant if the visa was cancelled as they would likely be permanently living apart at least until June 2026, apart from visits to India or elsewhere. It gives this significant weight in favour of the Tribunal exercising its discretion not to cancel the visa.

100. It has also considered the financial, emotional and mental effects on the applicant if the visa is cancelled and that he will have to live apart from his partner for an extended period. It also gives this weight in favour of the Tribunal exercising its discretion not to cancel the visa.
101. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant had given incorrect information in his first and second Student visa applications and bogus documents with his first visa application and that he did not comply with s 101 and s 103 of the Act. The Tribunal has found that there are grounds for cancelling his visa. It views providing bogus education documents and incorrect information as to his education to be of significant concern and that this strongly weighs in favour of the Tribunal exercising its discretion to cancel the visa.
102. The Tribunal’s concern is that the decision to grant the visas, particularly the first visa was in part based on the incorrect information and bogus documents because past study and education achievements are central to the determination of whether the applicant met cl 500.212. This factor also weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
103. It has considered that the circumstances that led to the cancellation were not out of his control.
104. It has noted his evidence that it may be difficult for them on return when they marry as it is an interfaith marriage. As outlined above the Tribunal is of the view that his claims can be fully considered via a protection visa application if they would fear serious or significant harm as a result. The Tribunal is of the view that this is the appropriate mechanism for assessing this if needed. .
105. The Tribunal is satisfied that while there are aspects that are favourable to the applicant, however due to the seriousness of the breach and other factors outlined above, there are more matters and circumstances that weigh in favour of the exercise of the Tribunal’s discretion to cancel the visa. The Tribunal is mindful of the seriousness of providing bogus documents, and the incorrect information as outlined above.
106. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
107. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Gabrielle Cullen
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.

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 3382

11 September 2024

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