Kashwer (Migration)

[2022] AATA 4768

Kashwer (Migration) [2022] AATA 4768 (18 October 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Jigar Kashwer

REPRESENTATIVE:  Mr Shukla Satyaprakash (MARN: 2013945)

CASE NUMBER:  2117899

HOME AFFAIRS REFERENCE(S):           BCC2021/1060112

MEMBER:  Michael Bradford

DATE AND TIME OF

ORAL DECISION:  12 August 2022 at 2:55 pm (NSW time)

DATE OF WRITTEN RECORD:                18 October 2022

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision under review.

Statement made on 18 October 2022 at 4:02pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – applicant’s identity – name – date of birth – facial comparison – conduct of an agent – consideration of discretion – circumstances giving rise to non-compliance – knowingly complicit in agent’s conduct – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
SZJGO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393

APPLICATION FOR REVIEW

Introduction

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 November 2021 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under Sec 109 of the Migration Act 1958 (the Act).

1. At the conclusion of the hearing on 12 August 2022 the Tribunal made an oral decision to affirm the delegate’s decision and informed the applicant that written reasons would be published later.

1. On 7 September 2022 the applicant’s agent requested the Tribunal to provide written reasons for its decision and on 23 September 2022 the Department of Home Affairs made a similar request.

1. What follows are my written reasons.

Overview of the case

1. The subject visa, which had been granted to the applicant as a Subsequent Entrant on 29 July 2020, was cancelled because of non-compliance with Sec 101(b) of the Act arising from false information which he had provided to the Department in connection with that visa concerning his identity. This same information had initially been provided by him, or on his behalf, to procure the grant of a Student TU-500 visa in June 2017 after an earlier unsuccessful Student visa application in 2014. The information was also used by him to procure another Student TU-500 visa in 2019.

1. As will be seen, there is no issue in this case that the delegate was entitled to issue the notice under Sec 107 of the Act (the NOICC), nor is there any issue that the applicant had provided false information to the Department on the other occasions to procure the grant of Student visas in breach of Sec 101(b). The real, and indeed only, issue is whether the subject visa should be cancelled.

Procedural aspects, the hearing, the applicant’s credibility and other evidentiary aspects

1. The Review Application was filed on 30 November 2022 and is thus within time.

1. The applicant also filed on that date other documents in support of his case including a copy of his response to the NOICC and medical evidence relating to a consultation which the applicant had with a Psychologist on 4 November 2021 and a report from the same practitioner prepared on that date.

1. On 16 June 2022 a Hearing Invitation was sent to the applicant via his agent and arrangements were subsequently made for them to participate in a telephone hearing on 6 July 2022.

1. On that date the applicant appeared by way of telephone and informed the Tribunal through a Hindi interpreter that his agent, Mr Satyaprakash Shukla, was also intending to participate but was currently unavailable because he was in Nepal. No prior indication had been given to the Tribunal of the agent’s unavailability. The applicant informed me that his agent was returning to Australia on 9 July and, after I raised the prospect of an adjournment with him, he sought one to enable the agent to attend.

2. In these circumstances, bearing in mind the detailed response which the applicant’s agent had given to the Department for the non-compliances, and the nature of the allegations made in the response, I adjourned the hearing to a date after 9 July. A request was also made to the effect that the applicant and his agent were to be notified separately of the new hearing date.

1. On 13 July 2022 the telephone hearing was re-scheduled to resume on 12 August 2022. Pursuant to my request separate invitations were sent to the applicant and his agent by the Tribunal.

1. On 12 August 2022 the applicant appeared again on the telephone to present his case but his agent did not. The applicant said that he was not expecting the agent to participate on this occasion and that he wished to proceed with and complete the hearing without him. His oral evidence was given through a Hindi interpreter over a period of about 1 hour and 15 minutes. He appeared to have a limited understanding of spoken English.

1. In his oral evidence the applicant adhered to the version of events set out in his response to the NOICC which was broadly to the effect that he had been tricked by a migration agent in India.

1. Even making allowances for the fact that his somewhat lengthy oral evidence was given on the telephone through an interpreter, and for the fact that he was apparently nervous, at the end of it I was unconvinced that what he was telling me about the circumstances in which he procured the 2017 visa, and other events, could confidently be relied on. He was a very unsatisfactory, indeed at times frustrating, witness who despite repeated warnings from me seemed to be unwilling or unable to directly answer simple questions regarding his involvement in and knowledge of the circumstances in which that visa was procured. I did get the distinct impression as his evidence unfolded that he was more interested in telling me what he thought would advance his case rather than giving me a full and frank account of the circumstances in which he and his migration agent procured the visa.

1. I have no difficulty in concluding, as the delegate did in the decision under review, that certain aspects of the applicant’s evidence regarding these circumstances and other matters is implausible, difficult to reconcile with objective facts, including the sequence of events, or is otherwise incredulous.

1. In a case such as this one, where the applicant makes grave allegations of wrongdoing against a migration agent and an unidentified friend, neither of whom can defend them, and which involve fraud, threats of violence and extortion, the Tribunal should feel an actual persuasion that the evidence given can be accepted and that it is sufficient to make out those allegations.

1. As a corollary of this, if an applicant relies exclusively on oral assertions made through an agent to establish that he is the innocent victim of such egregious conduct, or in this case on written submissions which contain nothing more than a recital of the facts which are said to support those allegations, without providing any contemporaneous or other documentary evidence to corroborate them, and without explaining why such evidence has not been led, he runs the risk that the Tribunal will remain unconvinced that he has proved his case.

1. More particularly, I am quite unable to find that the applicant in this case was nothing more than an innocent party who was tricked into thinking that his Indian agent had acted properly when he procured the Student visa in 2017 in circumstances where another Indian migration agent had been unable to procure that same visa in 2014 a fact which, on the applicant’s own case, was known to the agent who prepared the 2017 visa application. Moreover, the applicant has led no evidence on the review to establish that his other circumstances in India

had changed in the period between 2014 and 2017 in such a way or to such an extent as to enhance his prospects of obtaining such a visa when he applied for it again in 2017.

1. Ultimately, in this case, I am not prepared to rely on the agent’s assertions in the form of his written submissions or on the applicant’s oral evidence along those same lines unless it consists of admissions adverse to his interests, is consistent with the objective features of the case or has otherwise been corroborated by reliable independent records.

1. Whilst I do accept that the agent in India was very much involved in the preparation of the 2017 visa application, I do not accept that the applicant was nothing more than an innocent victim of what the agent did to procure that visa. In my view, the inherent probabilities of this case, taken in conjunction with certain aspects of the applicant’s own account, establish that he was sufficiently aware of what needed to be done to procure the visa.

1. In any event, for reasons to be developed later, even if I were to accept the applicant’s account of those circumstances in its entirety, it would make no difference to the eventual outcome of this case. This is so because of the applicant’s own conduct in knowingly adhering to his false identity since he arrived here in July 2017.

1. Thus, at the conclusion of his oral evidence, I decided to affirm the decision under review but, as there was insufficient time remaining in which to give oral reasons immediately, indicated to the applicant that written reasons would be provided later.

Other documentary aspects

1. In addition to the applicant’s documentary case and his oral evidence the Tribunal has been provided with a paper file from the Department which contains numerous documents including a copy of three Visa Applications lodged by the applicant in 2014, 2017 and 2020, photographs of the front page taken from two Indian passports issued to him under different names at different times, a copy of a 956 Form dated 8 November 2021, a copy of the NOICC and, of course, the decision under review.

1. The Tribunal has also had access to a PRISMS record and a Movements Details record. Some of the information in these records was discussed with the applicant at the hearing and was not controversial.

Is the NOICC a valid notice and, if it is, has there been relevant non-compliance with it?

1. Sec 109(1) of the Act permits the Minister to cancel a visa if the visa holder has failed to comply with specified sections of the Act, including Sec 101. Broadly, this section requires a non-citizen to provide correct information in their visa application. Sec 107A also enables the Minister to cancel a visa if there has been a failure to comply with Sec 101 in connection with a previous visa.

1. The exercise of the cancellation power under Sec 109 is conditional on the Minister issuing a valid notice under Sec 107 of the Act and, in so doing, the Minister must provide in the notice adequate particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in Sec 107 the power to cancel the visa does not arise.

1. In this case the Tribunal is satisfied that the delegate reached the necessary state of mind to engage Sec 107 and that the NOICC complies with the relevant statutory requirements in this regard. These matters were rightly accepted by the applicant in his response to the NOICC.

2. As to the issue of whether there was non-compliance in the ways particularised in the NOICC it is of course necessary in this case to consider the content of the notice, the evidence relied upon by the Department to establish the non-compliance, the applicant’s response to that notice and the evidence he has given on the review relating to this issue. Again, in his response to the NOICC, the applicant accepted that he had failed to comply with Sec 101(b) in the ways particularised in the NOICC and nothing occurred at the hearing to suggest otherwise.

1. After referring to the relevant sections of the Act the delegate recited the applicant’s immigration and study history in Australia since he arrived here in July 2017. It was noted, among other things, that the applicant had applied for and obtained Student visas in 2017, 2019 and 2020. It was also noted, from information in a PRISMS record, that during the period from July 2017 to July 2019 he had completed a Diploma of Business by studying for a total period of about 6 weeks and that his enrolment in other courses had been cancelled.

1. The applicant did not, either in his response to the NOICC or in his review case, dispute these findings regarding his study history in Australia.

1. In relation to the Visa Application which the applicant lodged offshore on 10 June 2017 the delegate set out the information which he had provided in the form concerning his identification. This information was based on the details in the passport which he had provided to the Department as supporting evidence. This passport, it will be seen, bears an issue date of 13 June 2016 (the 2016 passport). According to the information in this Visa Application his name was Jigar Kashwer, he was born on 10 September 1997 in Karnal, India, had never been known by any other name, had no other current passport and had never been refused entry into Australia.

1. The 2016 passport of course contains a photograph of the applicant’s face. The delegate noted that he provided the same passport and gave the same details in his later Student visa applications, including the one which led to the grant of his dependant Student TU-500 visa in July 2020.

1. The delegate stated in the NOICC and in the decision under review that a facial comparison had been conducted by a Forensic Facial Image Examiner using the photograph of the applicant in the 2016 passport and that of another person whose photograph appeared in another passport which had been issued in 2010 and which, according to the passport, depicted a person named Neeraj Pal born in Karnal, India, on 27 January 1992 (the 2010 passport). According to the delegate, this comparison revealed that the persons depicted in these two photographs were in fact the same person.

1. The delegate went on to note that Neeraj Pal had applied offshore for a Student (TU-573) visa in 2014 and in support of this had provided to the Department a copy of his 2010 passport. As is noted by the delegate, as this visa was refused later in 2014 on genuine temporary entrant grounds, the applicant was thus a person who had been refused entry to Australia at that time.

1. Based on this information the delegate inferred, again in my view correctly, that the applicant had used another name and date of birth in his 2017 visa application to avoid having to disclose to the Department that he had previously been refused a visa and that, had such information been available to the delegate for the purposes of assessing that and the other more recent visa applications which he and his wife have lodged, and which led to the grant of other Student visas, it may have affected the outcome of those applications.

1. On that evidence the delegate considered that the applicant had not complied with Sec 101(b) in that he had provided incorrect answers to the questions posed in the 2017 visa

application regarding whether he had ever been known by another name, had any other current passport or had ever been refused entry to Australia. The evidence plainly revealed, and it was not otherwise in dispute, that he had provided incorrect answers to each of those questions.

1. In his response to the NOICC the applicant, through his Australian agent, accepted there had been a non-compliance with Sec 101(b) in the ways set out in the NOICC but sought to avoid responsibility for them by contending that the non-compliances arose in circumstances beyond the applicant’s control. In essence it was contended that another migration agent in India, who was identified in the response, had been retained by the applicant to prepare his 2017 visa application and that the 2016 passport had been procured by this agent using the false information without the applicant’s knowledge or consent.

1. The short answer to this contention, insofar as the issue of non-compliance is concerned, is that it does not matter. The Act, in Part 2 Division 3 Subdivision C, contains various well- known provisions which are plainly intended to ensure that an applicant is responsible for the conduct of an agent in the preparation of a visa application, whether the applicant is aware of it or not. These provisions have necessarily been given full force and effect in the decisional law; see for example SZJGO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [7]-[8].

1. Even if I were to accept the applicant’s evidence concerning the circumstances in which the visa was procured, it can make no difference to the issue of whether the delegate was correct in finding that the applicant was responsible for the non-compliance.

1. Just pausing here for a moment, even on the applicant’s own evidence, as contained in his agent’s response to the NOICC, he knew what his Indian agent had done to procure the grant of the 2017 visa before he left India to travel to Australia. He knew that false information concerning his identity had been provided to the Department or, at least, knew that a passport had been issued which contained false information concerning his identity and that the passport had been used to procure the visa. He thus had the opportunity before he left India to avoid the consequences of what the agent had done and/or the consequences of knowingly entering Australia on a false passport and remaining here on that basis since 6 July 2017, now more than 5 years ago.

1. Whatever significance the applicant’s evidence on this aspect can have at the discretionary stage, and for reasons already given it can have none, it can certainly have no bearing on the issue of whether the delegate was entitled to find, as he ultimately did, that the stated non-compliance with Sec 101(b) had been established.

1. For those reasons, the Tribunal has no difficulty in finding in this case that there was non- compliance with Sec 101(b) as described in the NOICC and as articulated in the decision under review and that, consequently, there are grounds for cancellation of the subject visa.

Should the visa be cancelled?

1. Given there has been non-compliance in the ways described in the NOICC it is necessary for the Tribunal to consider whether the visa should be cancelled under Sec 109(1) of the Act.

1. Although cancellation in this context is, as the applicant accepts, a discretionary matter for the Tribunal, in exercising the power under Sec 109(1) the Tribunal should consider the matters referred to in Sec 109(1)(b) and (c) insofar as these are relevant to this case together with any other matters which come into play, including those set out in the Department’s Procedural Advice Manual (PAM3). Thus, the matters referred to in Regulation

2.41 should be considered together with other matters such as the consequences of cancellation, international obligations and so on.

1. On any reading of the decision under review, in deciding to cancel the visa, the delegate made findings adverse to the applicant regarding the circumstances in which the 2017 visa had been procured.

1. As I indicated earlier the response to the NOICC was in the form of a detailed submission which the applicant’s agent had written, no doubt on instructions. It is unnecessary for me to recite verbatim the circumstances to which the agent refers. Certain aspects need to be mentioned.

1. The applicant accepted, in his response to the NOICC and in his oral evidence, that he had been involved in obtaining the documents required to support the 2017 visa grant but he steadfastly maintained that he was unaware, prior to meeting his Indian agent at the airport on his way to Australia, that he had been issued with a fresh passport which gave him a false identity. According to the applicant’s case, he attended a local passport office in 2016, at the request of the agent, to complete the formalities necessary to obtain a fresh passport, which apparently included the completion and signing of an application form for the issue of that document. This he had done in circumstances where his 2010 passport was not due to cease until 18 November 2020.

1. Given his evidence that he had handed the 2010 passport to the agent and had informed him of the unsuccessful application in 2014 I infer that the applicant must have known that it could be used to support the 2017 visa application.

1. The agent submits that the applicant thought that he was renewing or updating the 2010 passport but, apart from what the delegate had to say about this, it does not come to grips with the fact that the applicant had used it to support the 2014 visa application and that he was using a false name to procure a fresh one in 2016.

1. In his oral evidence the applicant denied that he signed the application form to procure the 2016 passport. He said that the agent did that for him. Why the agent would do that in these circumstances was never explained. I am satisfied that the applicant signed the form using his fictitious name and am fortified in this by the similarity of the signature which appears on the 956 Form.

1. On his own evidence, and this is confirmed in the 2017 visa application itself, the applicant had also undertaken, at the request of his Indian agent, an English test using his false identity.

1. It defies belief that the applicant could have completed the necessary formalities to do these things without knowing that he was using a fictitious name.

1. The delegate described the applicant’s evidence to the effect that he was nonetheless unaware that he had assumed, or was in the process of assuming, a false identity to procure the 2017 visa until he met the agent at the airport moments before he boarded the plane to travel to Australia, as implausible. This description is, in my view, apt given the extent of the applicant’s admitted involvement in the events which led to the issue of the 2016 passport and in the other events which took place along the way.

1. Indeed, I would go further in this case as it seems to me that the applicant was, on the evidence led, knowingly complicit in the agent’s conduct and would in any event have been aware that he was in the process of assuming a false identity to procure the 2016 passport and that it would be used to support a fresh visa application.

2. Further, in terms of the objective features, given that the 2016 passport bears an issue date of 13 June of that year, it seems very unlikely that his agent in India would have retained possession of it and the other documents which contained false information concerning his identity without the applicant knowing the true position before his agent eventually lodged them with the 2017 visa application on 10 June 2017. The applicant has not explained, either to the delegate or to the Tribunal, why the agent in India would have retained them for such a long period if the applicant had at all times understood that he had acted lawfully until he met the agent at the airport in early July of that year.

1. I do not accept that the medical issues which his parents had been experiencing at some stage, it is not clear on the medical evidence exactly when, had anything to do with the delay in the lodgement of the 2017 visa application.

1. At the hearing the applicant maintained that he was not given the 2016 passport until he met the agent at the airport in New Delhi shortly before his departure for Australia on or about 6 July 2017. This aspect of his evidence may well be correct as it seems improbable that the agent would have parted with possession of this passport until the visa had been granted and this, according to the Movements record, did not occur until 30 June 2017. But none of this affects my findings regarding the extent to which the applicant was knowingly involved in obtaining the false information regarding his identity in 2016 and the eventual provision of it to the Department in 2017.

1. I am well satisfied that, even on his own account, the applicant was sufficiently involved in the preparatory steps which led to the 2017 visa application to know what was going on regarding his identity and that he ultimately went ahead with it knowing that a false passport had been obtained and would be used to procure the visa. I do not accept his evidence that he was tricked into thinking that nothing untoward or improper had happened until he met the agent at the airport.

1. The applicant also gave oral evidence to the effect that the Indian agent made a threat at the airport to the effect that his parents would “die in an accident” if he did not go ahead with the transaction.

1. Again, I do not accept that any such threat was made to him given my findings that he knew what he and his agent had done during 2016 to procure the supporting documents. There is no evidence from him to the effect he at any stage wanted to undo what had been done despite having ample opportunity to withdraw his instructions to the agent to proceed with the visa application. This being so, it is quite illogical for him to assert that such a threat was made to compel him to go ahead with it.

1. When asked at the hearing to explain why he went ahead with it in the face of such a threat the applicant said he had no choice but, on any view of his case, he clearly did. If a threat of this kind had in fact been made in circumstances where his parents were waiting outside the terminal building, I very much doubt he would have boarded the aircraft and left them to fend for themselves. There is no evidence from either of them to the effect that they were ever told by him that any such threat had been made, nor is there any corroboration from them regarding his other evidence about later visits to their home by the agent. Absent that evidence, I do not accept what he says on these topics.

1. The Movements record confirms that he returned to India on two occasions in 2018, each for a period of about 2 months, and on one occasion in 2019 for about 4 weeks. Although there is no evidence from him regarding the purpose of these visits and I am prepared to infer they were most likely to see his parents. I accept that he was close to them before he came out here and that he has remained close to them since.

2. When asked at the hearing why he did not inform the Department of what had occurred in connection with the 2017 visa until he responded to the NOICC in November 2021 he said he was scared but he did not say why. If he meant to suggest by this evidence that he was concerned for the well-being of his family, I do not accept that he was for the reasons already given. If, on the other hand, he is referring to the prospect of having to go home in the event his visa was cancelled his evidence is understandable but is of little assistance to him in circumstances where he has been here for more than 5 years living with a false identity and in that time has obtained, on that basis, no less than 2 other Student visas onshore and numerous bridging visas.

1. There is other evidence from him in his response to the NOICC, confirmed in his oral evidence, to the effect that, after his arrival in Australia, he was blackmailed by a friend in whom he had confided and who was thus privy to this migration facade and who had threatened to go to the Department unless he was paid money. This friend, who has not been identified, is said by the applicant to have made these demands from India and, in response to them, the applicant says that he paid him unspecified amounts at various times until in or shortly prior to November 2021.

1. Absent any bank records to substantiate these payments or other contemporaneous documentary evidence to corroborate what he says about them I am not prepared to accept his evidence on this topic but, in any event, I do not see how it would assist him a great deal. The delegate reasoned that he was, by meeting these demands, simply exacerbating what was already an untenable migration position, a view with which I respectfully agree. No matter how one looks at his case, the applicant has been in no small way the author of his own misfortune.

1. Turning to the other relevant matters which appear to arise for consideration, I accept that the applicant, and possibly his wife, will suffer some disruption to their relationship if his visa is cancelled. But absent any evidence from him as to his academic progress in Australia, if in fact there has been any, or any evidence regarding his present academic or other personal circumstances or career goals, I am unable to give these matters any real weight in his favour.

1. In the NOICC the delegate expressed concerns about the applicant’s study history in Australia and nothing was said about this matter in his response to that notice or otherwise in the review. It may be that he has engaged in productive studies since late 2021 but, if he has been, I would have expected to have seen some evidence from him to this effect and there is none.

1. There is some medical evidence in the form of a report to the effect that the applicant began to have symptoms of depression in early November 2021, shortly after the NOICC was served on him. Although his Psychologist, Mr Nick Cherrie, appears to have prescribed some medication for him at that stage the applicant said in evidence that he only took it for a short period, perhaps one week. He did not say why he ceased to take his medication, which is more than a little odd given that he told Mr Cherrie that he wanted to go down that path rather than undergo counselling.

1. This being so, and absent any other updating medical evidence, I do not accept that he is currently suffering from depression or any other recognised from of mental illness. That he was distressed shortly after he received the NOICC is understandable, he had been living here for a considerable time under false pretences and, indeed, had obtained visas in 2019 and 2020 knowing that he was using a false identity to do so. That he must now face the consequences of what he has done would be upsetting but this is something he has brought on himself.

2. I am not prepared to find, in these circumstances, that he will suffer any relevant hardship from the cancellation.

1. There is also some evidence from him to the effect that his wife has been studying here to become a nurse and, in the NOICC response, his agent states that she would obtain a nursing qualification “within the next 12 months or so”, which in effect means that she may already be qualified as a nurse. Although she has given no evidence in support of the applicant’s case, I can see from the Movements record and other evidence that she was granted a student visa as a primary applicant in July 2020 and accept that she has been studying a course in nursing since that time, if not earlier, and that she will shortly complete it if she has not already done so.

1. Although there is some suggestion in the applicant’s oral evidence that her current visa might also be cancelled, he has led no documentary evidence to this effect, nor is there any document to this effect in the Department’s file. It is, I think, reasonable in these circumstances for me to proceed on the basis that she will likely be able to complete her course, if she needs to. I have not seen a copy of the 2019 visa applications, nor the corresponding visa grants, so I do not know whether there are any concerns arising from the information in her visa application regarding his identity. It is of course possible that she has been, and perhaps still is, unaware of his migration position but she has not come forward with any evidence along these lines.

1. I am not prepared to infer, in these circumstances, that she will suffer any relevant hardship from the cancellation of his visa.

1. I take into consideration the possibility that the applicant and his wife may be separated in the event that he has to go back to India and she remains in Australia to complete her studies but this would be a necessary consequence of the choices he has made and would occasion only a temporary disturbance to their married life. I do not regard this possibility, and on the evidence led it is no more than that, to be a weighty factor at the discretionary level.

1. There do not appear to be any other relevant matters about which evidence has been led or which otherwise require specific consideration.

Summary and conclusion

1. The Tribunal is satisfied on the evidence which has been accepted that the applicant was aware of what had been done to obtain the documents necessary to support the 2017 visa application. I have no difficulty in accepting that the applicant had informed the agent that he had been visa refused in 2014 and that the applicant had instructed his agent to do whatever had to be done to procure the visa. Given that the applicant’s relevant circumstances in 2016 were apparently no different than what they had been in 2014, there was only one way in which the visa could be procured and that was to give the applicant a false identity and thus avoid the need to explain to the Department why he should be granted the visa despite the earlier refusal.

1. On the Tribunal’s findings the applicant most probably knew this before he retained the agent to act for him in 2016 but, in any event, he was knowingly complicit in what the agent subsequently did to procure the documents necessary to support the visa application in or about June 2016 and in the giving of eventual instructions to lodge that application in June 2017.

2. To contend, as the applicant does, that he remained unaware of the fact that he had assumed a false identity to procure the 2017 visa until he arrived at the airport is a proposition which I simply cannot accept.

1. His later conduct in deliberately using a false identity to procure the other visa grants in 2019 and 2020 does nothing to assist him and, indeed, this tends in no small way to undermine his claim that he was nothing more than the innocent victim of an unscrupulous agent.

1. Considering the applicant’s overall circumstances, and after having given due weight to the relevant matters, the Tribunal concluded at the end of the oral evidence that his TU-500 visa should be cancelled.

DECISION

1. The Tribunal thus affirms the decision under review.

Michael Bradford Member