Kaur (Migration)

Kaur (Migration) [2019] AATA 2392 (26 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Harpreet Kaur
CASE NUMBER:  1732244
DIBP REFERENCE(S):  BCC2017/361355
MEMBER:Brendan Darcy
DATE:26 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 26 June 2019 at 3:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – bogus document – matriculation certificate – validity of s 375A certificate – ‘dob-in’ information – Form 956 – forged signature – consideration of discretion – visa grant based on bogus document – evidence in relation to genuine access to funds – circumstances in which the non-compliance occurred – claims to be victim of unethical agent – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 103, 107, 109
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cls 500.214, 500.217; Schedule 4, PIC 4020
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 applicant breached s.103 of the Act, specifically that she provided a bogus document to an officer of the Department in an application for this student visa, and the grounds for not cancelling the visa did not outweigh the grounds for cancellation. 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 on 5 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 s.103 of Subdivision C in the following respects:
A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus documents or cause such a document to be so given, presented or provided.
For the purpose of Subdivision C of the Act, ‘bogus document’ is defined at s.5 of the Act as follows:
Bogus document
In relation to a person means, a document that the Minister reasonably suspects is a document that :
a)     purports to have ben 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.
At the time of application of this visa under review
On her application for a student visa (TU 500) dated 19 September 2016 the applicant declared that she is a citizen of India.[1] The Tribunal received a copy of her Indian passport.[2]
[1] BCC2017/361355 f.45
[2] 1732442 f.8
The applicant had lodged an application via the Department’s online system to undertake a Master of Business Administration at Charles Darwin University. An officer of the Department, having been satisfied the relevant criteria for approval were met, granted the Subclass 500 student visa on 21 October 2016. The visa was set to expire on 15 March 2019. The applicant arrived in Australia on 24 October 2016.
At the time of the visa decision, the visa holder was required to meet cl.500.214 and cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations), which state (in part):
500.214
(1) The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2) While the applicant holds the visa, sufficient funds will be available to meet:
(a) the costs and expenses of the applicant during the applicant’s intended stay in Australia; and
(b) the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.
[…]
500.217
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
Relevantly, Public Interest Criteria (PIC) 4020 states:
There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officers of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) The application of a visa or
(b) a visa that the applicant held in the period of 12 months before the application was made.
It was claimed by the applicant in her application that her mother, Narinder Kaur, and brother, Hardeep Singh, reside in India and her father passed away in 2013.[3] She claimed that her maternal grandparents would financially support her stay in Australia.[4] Included with her application was an affidavit by Satnam Singh and Manjit Kaur which identifies the applicant as their grandchild.[5]
[3] BCC2017/361355 ff.40-39
[4] BCC2017/361355 f.38
[5] BCC2017/361355 f.81
The following documents supporting her visa application were contained on the applicant’s Departmental visa cancellation file:
a)An affidavit of sponsorship by the applicant’s grandparents, Satnam Singh and Manjit Kaur, stating that they would finance her study in Australia.[6]
b)A card issued by the Commissioner of Income Tax to Satnam Singh Phull.[7]
c)Bank statement dated 12 July 2016 stating the term deposits held by Satnam Singh and Manjit Kaur.[8]
d)Bank deposit receipts dated 5 October 2012, 4 July 2011, 12 January 2011, 10 January 2012, 12 August 2013 naming Satnam Singh and Manjit Kaur.[9]
e)Bank statement dated 9 September 2016 naming Satnam Singh.[10]
f)Narinder Kaur’s Government of India card.[11]
g)Manjit Kaur’s Income Statements for the years ending 31 March 2014, 31 March 2013 and 31 March 2015.[12]
h)Satnam Singh Phull’s Income Statements for the years ending 31 March 2015 and 31 March 2014.[13]
i)An Indian certificate and English translation indicating the document to be a matriculation certificate dated 15 September 1982 issued by the Punjab School Education Board to Narinder Kaur, daughter of Satnam Singh.[14]
j)A financial verification report dated 14 July 2016 by Guleria & Guleria Consultants.[15]
[6] BCC2017/361355 f.81
[7] BCC2017/361355 f.80
[8] BCC2017/361355 f.78
[9] BCC2017/361355 ff.77-70
[10] BCC2017/361355 f.69
[11] BCC2017/361355 f.66
[12] BCC2017/361355 ff.64-56
[13] BCC2017/361355 ff.55-47
[14] BCC2017/361355 f.20
[15] BCC2017/361355 f.46
On 16 November 2017 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of her TU 500 visa. The NOICC stated:
“Information available to the Department indicates that documentation you provided with your application for a subclass TU-500 Student visa for evidence of the relationship between your mother, Narinder Kaur, and Satnam Singh and Manjit Kaur both of whom you claimed are your maternal grandparents who are providing financial support to you (document numbered 6 above), is not genuine. The information indicates that the certificate from the Punjab School Education Board which lists your mother's name as having completed her secondary education at Government Girls High School, Balachur (Hoshiarpur) in March 1982 is false.
The relevant certificate of education is generally issued by the Punjab School Education Board. Internal checks with the Department's overseas office in Delhi on 9 February 2017 have confirmed that following a search for 'Government Girls High School, Balachur (Hoshiarpur)' on the Punjab School Education Board website, only four such schools were identified in Hoshiarpur and none matched the education provider listed on the certificate you submitted.
The officer from the Department who undertook the search contacted the respective principals to enquire whether they had information about 'Government Girls High School, Balachur (Hoshiarpur)' however their responses indicated that they had no knowledge of this school.
Additionally, the Department's officer advised that the certificate of education from 'Government Girls High School, Balachur (Hoshiarpur)' does not meet the relevant format of a certificate generally issued by the Punjab School Education Board.
I have undertaken a check of the school name of 'Government Girls High School, Balachur, Hoshiarpur' on the Punjab School Education Board website and found no result. In addition, I note that the name of the location listed at the bottom left hand corner of the letter indicating the place and date of issue which appears as Sahibzada Ajit Singh Nagar' is a district located near Chandighar and not in Hoshiarpur. These factors raise further concerns that the document you provided is not a genuine one.
It appears that you provided this document to the Department in association with your application for your student visa in order to demonstrate that your mother Narinder Kaur is the daughter of Satnam Singh and Manjit Kaur whose financial documentation you provided as part of the application in order to facilitate the grant of the visa.
Documentation which may be provided to the Department for evidence of a family relationship in relation to visa processing may include Indian passports bearing the holder's parents' names or a household family register issued by the local authorities. Your application did not include any such evidence other than your passport which includes your mother's and deceased father's names but no evidence of your mother's relationship with her parents. Therefore it appears that the financial documentation you provided in your application belong to persons who are not your maternal grandparents.
These facts indicate that you provided a false certificate of education to an officer of the department who was performing a function under the Act, namely the assessment of a client's visa application. Had the document been verified at the time of visa application your subclass TU-500 Higher Education Student visa would not have been granted.[16]
[16] BCC2017/361355 Folios 87-88.
On 11 December 2017, the applicant emailed the Department requesting an extension to the visa cancellation response period by as much as four weeks, and for it to make allowances for a Freedom of Information request. The applicant provided a short explanation to stating that she was shocked because she never provided any such document to the Department or her agent and she does not know what her agent attached to her file.[17]
[17] BCC2017/361355
The Department informed the applicant that it was unable to do this by replying to the applicant on the same day.
On 12 December 2017 a delegate proceeded to cancel the applicant’s TU 500 visa.
On 19 December 2017, the applicant provided the Tribunal with a copy of her visa cancellation decision record with her application for review.[18]
[18] 1732244 f. 5
Also submitted was a signed but undated statement prepared by the applicant with the reasons her visa should not be cancelled. Of particular relevancy to the Tribunal with regards to any bogus document provided the applicant stated:
According to the Immigration department they were unable to verify the name of the Institution in which my mother studied and was deemed to be bogus but I would like to clarify that fact that the Certificate of completion was issued by the PSEB [Punjab Secondary Education Board] brand situated in Mogali also known as SAS Nagar and the head office is still the same, The name and level of institution has changed since 1982from Government Girls High School to Government Girls Senior Secondary School. The PSEB failed to verify the document as the record is really old and they don’t have much record of it and in support of the application that the school still exist, I have attached the letter from the current Principal including the current pictures of the school who verify the name of the institution as written the certificate.
The applicant further claimed that she only authorised Milestone Immigration Consultancy (Milestone) as her authorised representative, that she had not made any contact with any agents working for Guleria & Guleria, who were mentioned on the Form 956, and that the signature on the Form 956 was not hers. Embedded in the statement was a screenshot of the email sent to her claimed original agents with a scanned copy of her mothers’ Year 10 Certificate. Throughout the hearing, the applicant claimed the evidence of a change or difference in migration assistance supported her argument that the bogus document was submitted without her knowledge or tacit approval.
During the scheduled hearing, the applicant reiterated these claims, arguing the evidence indicates she had been a victim of fraud and that she did not submit or cause to be submitted any bogus documents. The Tribunal notes that the applicant claimed that her actual maternal grandparents’ names were Amani Chand and Swaran Kaur and not Satnam Singh and Majit Kaur as mentioned in the bogus document.
In a post-hearing submission to the Tribunal dated 25 April 2019 she claimed that she never hired Guleria & Guleria, she only hired Milestone and never provided bogus documents in relation to her application.[19] She provided the following documents in support if her claim:
a)An email dated 21 October 2016 from Amitoj Sohi of Milestone attaching her visa grant notice and screenshots of several other emails she claimed are from Milestone.[20]
b)A map showing the distance between her residence in India and the office of Guleria & Guleria.[21]
c)Copies of various emails in 2016 and 2017 with Amitoj Sohi and Karuna Bhatia of Milestone regarding the applicant’s visa application and air tickets.[22]
d)Student visa grant notice dated 21 October 2016.[23]
[19] 1732244 f.51
[20] 1732244 f.50
[21] 1732244 ff.49; 39
[22] 1732244 ff. 31-27; 24
[23] 1732244 f.23
On 26 April 2019 the applicant wrote to the Tribunal and claimed that Milestone had refused to provide her with a copy of her visa application, but provided the electronic record of lodgement. She provided a screenshot of her communication with Karuna Mam as evidence and a screenshot of the status of her application on the Department’s e-lodgement system. She noted that the name listed on the top right corner, Amitoj Sohi, is associated with Milestone.[24]
[24] 1732244 ff. 54-52
Documents submitted on 4 April 2019 to the Tribunal and documents submitted as part of the applicant’s post hearing submission on 26 April 2019 are listed in Attachment Two.
Non-disclosure notice
As raised in the hearing under s.359AA of the Act, the Tribunal informed the applicant that it had a non-disclosure notice attached to her Departmental file (BCC2017/361355) and that it had been issued under s.375A of the Act. It was further explained the notice had been issued as it would it would not be in the public interest to disclose to the public or the applicant Folios 1-14 as it contained the name of a third party who provided information about the visa holder to the Department, and that it would be a breach of the third party’s privacy to do so. A copy of the notice was provided to the applicant during the hearing.
The Tribunal explained to the applicant that the information would be relevant to the reason or part of the reason for affirming the delegate’s cancellation decision as it indicated to the Tribunal that the applicant had informed the third party that she knowingly provided a bogus or fraudulent document showing her maternal grandparents were financially sponsoring her.
After acknowledging that she understood the information and its relevancy, the applicant was provided with a short adjournment before returning to the hearing room to provide an explanation. The Tribunal presents the following transcribed oral evidence from the scheduled hearing as her response:
Review applicant: So I did not know who about the person who complained about me. SO to be honest I did not know any such about any documentation. I have my own financial documents so why would I go for bogus one? I was a genuine student since I started my studies and I came here to complete my studies and I have already finished my fifty per cent studies. If I go back I will have a loss of so much financial debt tht I spend here. And even the disappointment of my family as I have suffered from all these things.
Member: Why would anyone make this claim if it is not true? Why go to the trouble? I mean it is is true that there is a bogus document but why cause this problem for you? Why would anyone do that? Do you have any idea?
Applicant: When I got all things, I just considered there was a boy living with us when I was living in … with someone with shared accommodated.
Member: There was a boy …
Applicant: Yes
Member: … in shared living?
Applicant: Yes
Member: Was this before you were married?
Applicant: No no … Yes, this was before I was married. I was living in Dandenong. So there was a boy – I was just thinking, I am not sure this is true or not – he know that agent and he was always bullying about that agent and he …
Member: What does that mean – ‘bullying about the agent’?
Applicant: He said he was not good … he had some fight with that agent and when I came here we would talk about the normal things that I explained that I got a visa from that agent – the Milestone one. And I might think that he complained anything about it because he had some link with that agent. He came with his help … I don’t know what .. he just explained it to me and I thought that he complained about that agent or he got something information from him. Because only … if he did the bogus thing only the agent know that thing. Because he, that boy…
Member: Why would the agent …
Applicant: … because he, that boy, was working with the agent.
Member: Hang on, so you are saying he worked with them?
Applicant: Yes. He said that I worked with them and he came after the experience and he had some issue with them, might be that he had access to his emails or something like that. When I told him that I got the visa and after a few days he left our home
Member: What?
Applicant: He left our property.
Member: What do you mean? He came .. he moved into your house for a few days and then told you that your agent was dodgy and then he left?
Applicant: He was living there before we moved in. He was living there in a shared living.
Member: I suppose it does not matter when he left but so you are saying .. but the information is very specific about a particular document. So how would this person know so much about this specific document?
Applicant: I was just thinking about this. Because he was the person who know him and me here, so I was just thinking that he complained about the agent or I am not sure because I did not know about this thing. That is why ask for the FoI. If I know that I should depend on the NOICC that this is not my document and something like that. But I did not even speak anything about that in the NOICC because I had no idea what documents were attached and you have seen that I have never (inaudible)
Member: Sorry
Applicant: I have never appointed that the agent to lodge my application. Might be have some internal or any strong bonds with that agent. But I have no information about it.

The applicant submitted further arguments and evidence as a part of post hearing submission on 24 April 2019, in which she presented additional evidence of her grandparent’s financial capacity (although it was recent material), that Milestone and not Guleria & Guleria were her authorised representatives, and a map as evidence of the sizeable distance between the applicant’s home village in the Indian state of Punjab and Guleria & Guleria based in the Indian state of Uttar Pradesh.
Procedural matters: validity of the non-disclosure notice
While the delegate did not provide the visa holder the opportunity to address adverse information, the Tribunal is satisfied this non-disclosure notice was correctly issued in accordance with s.375A as the harm faced by the Department in discouraging people from providing ‘dob-in’ information outweighed the administration of justice being served by the notice’s release.
Was there no non-compliance by the applicant in the way described in the s.107 notice?
In this matter the applicant does not dispute that the document provided to the Department in association with this student visa under review in question, namely a certificate and translation of a letter from the Punjab School Education Board declaring that Narinder Kaur (daughter of Satnam Singh) passed her matriculation board exams at Government Girls High School, Balachaur (Hoshiarpur) in March 1982, is bogus. She claimed that her mother attended the school but her document in contention did not have the correct names of her maternal grandparents.
The bogus document that did not comply with s.103 of Subdivision C of the Act was given or caused to be given, according to the delegate, as evidence of the applicant’s mother’s parentage and the maternal grandparent’s demonstrated financial capacity to support the visa holder in her student visa application. This bogus document was counterfeited by a person who does not have the authority to do so at the time the applicant lodged a Subclass 500 visa application to demonstrate that she had genuine access to sufficient funds to meet her cost and expenses during her intended stay in Australia.
In this review, the Tribunal has explored in detail the reasons for the lodgement of this bogus document including whether the applicant caused such a document to be so given through her agent. As outlined below, the Tribunal is not satisfied that the arguments and the evidence the applicant presented to the Tribunal have been credible, adequate or plausible and it finds that that the applicant had breached s.107 for the following reasons.
Of particular credibility concern is the adverse information arising in an informant’s recorded note (dob-in note) that was attached to the applicant’s Departmental file. When the applicant commented upon this adverse information (subject to a non-disclosure notice), on the one hand she stated she was not sure who the third party was but then gave details about a third party who worked for an unethical agent in the past. In stating this, the applicant was claiming a third party, whom she temporarily shared accommodation with, had personal knowledge of a specific bogus document pertaining to the applicant. She was adamant that she had not disclosed this to the third party in question. However she could not explain his motives for informing the Department or the reasons it was so detailed about a specific document. As discussed in the hearing, the applicant has presented a far-fetched scenario that significantly stretched the Tribunal’s credulity. It is significantly more likely the applicant disclosed her knowledge of the bogus document being lodged, for whatever reason, and that the informant took exception to the fraud for unspecified reasons by reporting it For these reasons, this information and the applicant’s response has invited considerable doubts about the credibility of the applicant’s account that she was not involved in submitting any document that is in breach of s.103.
In the context of this significant credibility concern, the Tribunal has further considered the applicant’s argument that her signature had been forged on her submitted Form 956 nominating Guleria & Guleria as her authorised representative at the time of application to be lacking in credibility. As discussed in the hearing, there were no significant variations in the appearance of that signature compared to other signatures she claimed were actually her own at the time of the visa’s lodgement. This credibility concern was raised with the applicant in the hearing.
Relatedly, the applicant was unable to provide any reasons at all for having different agents. She insisted as the agent was physically a long distance from her, that it was not plausible she would employ that agent. As the applicant does not dispute this matter the Tribunal does not find the distance of the other named agency to be highly relevant to the matter whether the document in question was bogus or not, as notified in the s.107 notice. Firstly the Tribunal does not consider the distance between the applicant and the agency to be relevant when she is electronically transferring copies of documents by email through the world wide web. Secondly the applicant’s explanation invited the Tribunal not to discount that the agent or agency were the same person or persons operating under a different trading name due to their unethical practices on behalf of students and other visa applicants back in India.
The applicant also provided evidence that she had submitted an email of the evidence that her maternal grandparents were related to her mother to Milestone in 2016. The Tribunal accepts the email reflects an actual communication between her and the agent. But as discussed at the hearing, it does not exclude the possibility that the applicant was informed that the document would not satisfy the Regulations regarding financial capacity and that the agent, with the applicant’s approval, undertook to counterfeit a document to deceive the decision-maker in assessing the student visa application after the date. In the context of the Tribunal’s earlier credibility concerns, the Tribunal has also found the submitted evidence claiming to be supportive that she did not have knowledge of Guleria & Guleria appointed as her authorised representative to be unconvincing.
It is also noted that the applicant claimed that her mother had plenty of money following the tragic death of her father, as the directors of the company generously compensated her family. If this was the case, then the applicant’s mother was in a position to demonstrate her financial capacity to cover the applicant’s tuition and other expenses. However the applicant’s mother was not the sponsor. Instead the applicant’s maternal grandparents submitted documents to satisfy the relevant regulations for a Subclass 500 visa. This has also invited the Tribunal to consider that the document was bogus as it should have been unnecessary for her grandparents to submit such documents.
Furthermore, it noted that the applicant has provided 2016, 2017, 2018 and 2019 financial evidence that her mother her actual maternal grandparents, Amani Chand (maternal grandfather) and Swaran Kaur and other relatives had or have financial capacity for a student visa. Most of these are not particular relevant to the issue about a bogus document. However, there is also 2016 material (see Attachment Two) indicating the applicant’s mother had savings of just under INR100,000 which is the equivalent of about AUD2,000 in the same year as the visa application.[25] The only financial document relating to her grandfather Amani Chand was a 20018-2019 ‘Computation of Income’. The submitted documents do not support the applicant’s claim that she satisfied the relevant financial capacity regulations for a TU 500 visa at the time of application. For this reason and in the context of the Tribunal’s other credibility concerns the Tribunal is not satisfied the applicant has demonstrated her maternal grandparents’ 2016 financial capacity at the time of application. Furthermore and more relevantly to considering the non-compliance outlined in the NOICC, these documents demonstrate the applicant’s maternal grandparents are not Satnam Singh and Majit Kaur who are mentioned in the bogus documents as her maternal grandparents. Relatedly, as discussed in the hearing, the Tribunal accepts the applicant emailed financial capacity evidence to her then migration agent. However, in the context of the Tribunal’s considerable credibility concerns it does not rule out that other emails have been withheld from the Tribunal whereby the applicant and the agent agreed to fraudulent documents.
[25] AAT back of Folio 41.
The Tribunal has also considered the Department’s investigation into the bogus document to have been thorough and it places no significance on the applicant’s attempts to find minor errors in it when she accepts to be bogus.
As mentioned above, the applicant does not dispute that the document submitted in 2016 as part of a Subclass 500 visa applicant that led to the visa being cancelled was bogus. Based on this admission, the Tribunal is able to proceed with a finding that the grounds cancellation exists. However, the Tribunal has also considered whether, the applicant did give cause for such a bogus document to be given or not.
When cumulatively considering the evidence and its deep credibility concerns as outlined above, the Tribunal not only finds the document was not only bogus but that the applicant’s explanation about the reasons for the bogus document being submitted lacked overall persuasiveness and that the supportive evidence for these arguments was not unsupportive. Furthermore the applicant’s explanations for the detailed information in the informant’s complaint had been fanciful and far-fetched. The Tribunal accordingly does not accept that the applicant did not have any knowledge of the bogus document pertaining to her maternal grandparents. Neither does it accept she did not knowingly participate in this fraud when she authorised the disputed representative in question at the time of application. Nor does it accept a third party forged her signature on the Form 956 which authorised the disputed representation. Furthermore the Tribunal does not accept there is available evidence the applicant had financial capacity at the time of the lodgement and that the applicant had not been motivated to willingly participate in submitting a document that was in breach of s.103 and that she did give cause for such a document to be given. In this regard, the Tribunal has found the applicant not to be a reliable and credible witness and that she was wilfully indifferent or complicit in causing such a document to be given as described s.107.
In summary, the Tribunal finds that there was non-compliance with s.103 by the applicant in the way described in the s.107 notice.
CONSIDERATION OF THE DISCRETION TO CANCEL
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.
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.
Should the visa be cancelled?
Mandatory considerations
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. Each of the prescribed circumstances is considered below.
The correct information
The delegate discussed in the primary decision decision to cancel this visa under review, the delegate stated that the financial capacity of the visa holder at the time application relied on the document in relation to the relationship between the applicant’s mother and her maternal grandparents but provided this matter little weight. In examining the applicant’s student visa application, it appears where the applicant answered the question ‘Will the funds be provided by an individual other than the applicant?” that the applicant stated that her maternal grandparents has sufficient financial capacity, In the context of its findings about a bogus document, the Tribunal finds that the applicant had not provided correct information at the time of this student visa’s application. This is a very serious matter.
The content of the genuine document (if any)
The content of the document that led to the cancellation of this visa is found to be bogus and non-compliant with s.103(b). This is a very serious matter.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was required to demonstrate that she had genuine access to funds of a specific kind. However, she provided a bogus document to demonstrate that her maternal grandparents had such access. The decision to grant the applicant the cancelled student visa under review was based, at least partially, on the bogus document which provided the grounds for cancellation. The Tribunal places considerable weight on this factor in favour of the visa not being reinstated.
The circumstances in which the non-compliance occurred
The applicant has claimed that the she was not knowingly involved in the non-compliance and an agent undertook submitting a bogus document without her knowledge. , The Tribunal however has made findings that she had knowingly been non-compliant with s.103(b). This is a very serious matter. The applicant claimed she and her family had the financial capacity at the time of application. There is no indication that she did not have any credible extenuating circumstances beyond her control that led to this non-compliance being undertaken. The Tribunal accordingly places considerable weight on this factor in favour of the visa not being reinstated cancelled.
The present circumstances of the visa holder
The applicant would like to continue her partially completed study which she has only and hopes to remain in Australia to develop a current romantic relationship.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Subdivision C of Division 3 of Part 2 of the Act includes subsections 97 to 115. As mentioned above the applicant is found to have breached ss.101 and 103 in providing incorrect information and bogus document. Subsequent behaviour’ in this context means behaviour which took place after the non-compliance. The Court in MIAC v Khadgi (2010) 190 FCR 248 made it clear that subsequent behaviour that is not linked to the visa holder’s obligations under Subdivision C is irrelevant to the proper consideration of r.2.41(f). Having considered the behaviours in breach of the relevant subsections occurred at the time of non-compliance and not subsequently, the Tribunal places no weight on it.
Any other instances of non-compliance by the visa holder known to the Minister
There is no information before the Tribunal to indicate that the applicant has not complied with other migration laws in Australia. The Tribunal places no weight on this consideration.
The time that has elapsed since the non-compliance
Over three years have elapsed since the applicant provided the incorrect information in her Student (Subclass 500) visa application. The applicant claimed she has a stable relationship with an Indian national who has permanent residency. The Tribunal does not consider this an extensive amount of time and that she may have other migration options for valid visa application, albeit limited, open to her to remain in Australia. The Tribunal only places a limited amount of weight in favour of the applicant’s visa not being cancelled.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal regarding non-compliance by the applicant with other visa conditions, and there is no information before the Tribunal to indicate that the applicant has otherwise breached Australian law including its migration law. The Tribunal places no weight on this consideration.
Any contribution made by the holder to the community
The applicant submitted to the Tribunal an email by the Red Cross acknowledging the applicant donated blood on 13 April 2019.[26] It is noted that this contribution to the community occurred only in the days leading to the scheduled hearing. The applicant has also made a claim that she attends a Sikh temple where she volunteers every week. Taken as a whole, the Tribunal places a small amount of weight on this in favour of the visa not being cancelled.
Non-mandatory considerations
[26] 1732244 f.32
During the hearing, the applicant elaborated on her determination to complete a Bachelor’s degree prior to departing for Australia. She stated that she wanted to work in her father’s business. Noting that the applicant had already completed a Bachelor’s degree since arriving in Australia, she argued that completing a Master’s degree in Business Administration would give a strong opportunity to being in a high post in that business. The Tribunal discussed with the applicant as a graduate of a Bachelor’s degree whether she could reach her academic goals by studying in India or seeking a student visa in another country such as the United Kingdom or New Zealand. The applicant feared it would be difficult but she was unable to explain the significant barrier to completing a Master’s degree. Overall the Tribunal accepts the applicant did genuinely travel to Australia for the primary purpose for which this student visa was granted but does not assess any significant barrier to completing her studies outside of Australia.
The applicant also mentioned that her mother had been a private tutor in mathematics in 2014. However after her father was killed (for money), the applicant’s mother has since become seamstress for weddings and formal wear. She added that her mother’s health was not strong and feared that the cancellation of her visa would deteriorate her mother’s health. She also feared there was a lot of money wasted in returning to India without her Master’s degree. Overall the Tribunal has sympathy for the applicant’s mother but it does not assess her mother’s health issues and other considerations amounts to a significant or even a notable degree of emotional and financial hardship should the visa remains cancelled.
While she has married and is now separated, she expressed fears that her former in-laws would be hostile to her as the marriage had been arranged and that there was much stigma attached her to being a divorcée within Indian society. She also said there was no dowry involved and there was no suggestion of domestic violence in her previous marriage. The applicant also expressed her fears that she will be away from her current boyfriend if she departs Australia and is unable to return for at least three years. In this context, it is noted the applicant has limited migration options in making further valid visa applications and she could be detained or forcibly removed if the visa remains cancelled. However the applicant has neither applied for a protection or a partner visa since arriving in Australia, nor sought Ministerial Intervention in the past and for this reason, there is assessed only to be a very remote chance to be indefinitely detained if she becomes unlawful. For these reasons, the Tribunal places negligible weight on these factors about the mandatory legal consequences and arising from Australia’s international obligations in favour of the visa not remaining cancelled.

It is noted that the applicant does not have any dependants and there a no other applicants attached to student visa. The applicant did not claim to have any medical or psychological evidence that she has any physical or mental health problems. It is noted the applicant claimed that her life was over at the age of 23 if her visa remained cancelled. As discussed in the hearing, the Tribunal does not accept this far-fetched assertion to be credible.
The applicant did not advance any further relevant reasons.
Overall, the applicant has demonstrated a capacity and determination to achieve her academic goals. However, she has failed to demonstrate even a notable degree of hardship from the mandatory legal consequences arising from this visa remaining cancelled.
When all considerations have been taken into account, both individually and cumulatively, and with particular emphasis on the seriousness of the non-compliance, the Tribunal does not consider the above factors when considered overall weigh significantly against this student visa’s cancellation.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Brendan Darcy
Member

ATTACHMENT ONE – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of the person; or
(b)    is counterfeit or has been altered by a person who does not have authority to do so; or
(c)    was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)    giving particulars of the possible non‑compliance; and
(b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)    stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)    setting out the effect of sections 108, 109, 111 and 112; and
(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)     requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)    otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)    visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)    considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)    having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
ATTACHMENT TWO
On 4 April 2019, the applicant submitted the following documents:
a)    A copy of a Year 10 matriculation examination indicating the applicant attended school in 2009;
b)    A copy of a 2011 Year 12 senior secondary examination from an Indian school pertaining to the applicant;
c)    An academic transcript from Charles Darwin University dated 19 January 2018, indicating the applicant completed coursework pertaining to a Masters of Business Administration;
d)    AN invoice from 27 023 2017 indicating the applicant had paid tuition fees;
e)    A confirmation letter from the principal of the Government Girls Secondary School in Balachaur indicating that the applicant’s mother passed her matriculation examination in 1982;
f)     A statutory declaration dated 3 April 2019 from Jujhar Bajsw stating the applicant is a of good character;
g)    An email dated 24 April 2018 from the applicant to her former education provider seeking a conditional letter of offer;
h)    A letter from Panjab University to certify the applicant had participated in a sanitation program between December 2013 and January 2014;
i)   A sports letter from 2006 in Punjabi or Hindi with no translation;
j)   A screenshot of a post from the applicant’s Facebook indicating her agent, Milestone Education And Immigration Services, congratulated the applicant for the grant of her visa. It is dated 24 October 2016;
k)    An undated hand written letter from Loveneet Kaur, supporting the applicant’s review application;
l)   An undated hand written letter from Mandeep Singh, supporting the applicant’s review application;
m) A character certificate dated 25 August 2009 from the applicant’s former teacher;
n)    A character certificate dated 13 May 2011 2009 from the applicant’s former teacher;
o)    A death certificate (with a certified translation) pertaining to Gurdeep Singh indicating the applicant’s father died on 25 May 2013;
p)    A First Information Report from 2013 indicating the applicant lodged a complaint against three individuals for breaching India Penal Code sections 364 (kidnapping) 302 (murder); 201 (concealing/destroying evidence or giving false information) and 120B (criminal conspiracy);
q)    A response to the invitation to attend the scheduled hearing; and
r)     A newspaper clipping (untranslated).
The applicant submitted a number of documents concerning her financial situation in a post-hearing submission dated 25 April 2019, including:
a)A series of letters dated 2 November 2018 certifying the term deposit accounts that had been issued from Samrala Post Office in the name of Jaswant Singh Saini s/o Buta Singh, Narinder Kaur w/o Gurdeep Singh, Hardeep Singh s/o Gurdeep Singh.[27]
[27] 1732244 ff.48-46
b)A balance certificate dated 31 December 2018 regarding Jaswant Singh’s savings account at the Punjab National Bank.[28]
[28] 1732244 f.45
c)A balance certificate dated 31 December 2018 regarding Narinder Kaur’s savings account at the Punjab National Bank.[29]
[29] 1732244 f.45
d)A confirmation of deposit at the Punjab National Bank dated 10 September 2015 issued to Jaswant Singh Saini.[30]
[30] 1732244 f.44
e)A balance certificate dated 3 January 2019 regarding Jaswant Singh Saini’s fixed deposit account at the Punjab National Bank.[31]
[31] 1732244 f.44
f)A balance certificate dated 3 January 2019 regarding Narinder Kaur’s fixed deposit account at the Punjab National Bank.[32]
[32] 1732244 f.43
g)A confirmation of deposit at the Punjab National Bank dated 8 February 2014 issued to Narinder Kaur.[33]
[33] 1732244 f.43
h)A balance certificate dated 5 January 2019 regarding an account of Narinder Saini d/o Amar Chand at Central Bank of India.[34]
[34] 1732244 f.42

[2019] AATA 2392

26 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice