Kaur (Migration)

[2022] AATA 2043

Kaur (Migration) [2022] AATA 2043 (18 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Pawanpreet Kaur

REPRESENTATIVE:  Ms Ushass Panicker (MARN: 0324658)

CASE NUMBER:  2101267

HOME AFFAIRS REFERENCE(S):          BCC2019/1535100

MEMBER:Joseph Lindsay

DATE:18 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 June 2022 at 10:46am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – secondary school details – insufficient proactive attempts to provide correct information – education prospects – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248             

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. The applicant appeared before the Tribunal on 7 June 2022 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

3. 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

4. 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.

5. 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.

6. 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.

7. As indicated above, on 2 February 2021 the delegate decided to cancel the applicant’s student visa. Essentially, the delegate found that the applicant’s circumstances did not comply with s 101(b) and s 103 of the Act and, accordingly, cancelled the visa under s 109 of the Act.

8. Section 101(b) of the Act states:

   101 Visa applications to be correct

   A non-citizen must fill in or complete his or her application form in such a way that:

   …

   (b) no incorrect answers are given or provided.

9. Section 103 of the Act states:

   103 Bogus 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.

10. On 7 September 2018 the applicant lodged an application for a Student (Subclass 500) visa that included the following information (applicant responses in italics):

    Page 9

    Education – Highest level of schooling – Give details of the applicant's highest level of schooling completed outside Australia.

    Highest level of schooling completed: Secondary school – Year 12 or equivalent

    Course name: Senior School Certificate

    Institution name: CBSE Board

    Country of Institution: India

11. On page 8 of her student visa application, under the heading “Genuine Temporary Entrant”, the applicant provided the following answer:

    “As well as my academic qualification, I have done my Secondary School in the year of 2015 from Ajmani International School Rajapur, Lakhimpur Kheri under board CBSE with 7.2 CGPA. Then I joined Intermediate with Mathematics, Physics, and Chemistry as my majors. There my lecturers supported me much and left me some valuable points that has changed my life and I finished my intermediate in 2017 under board CBSE with71%.”

12. In support of her application, the applicant provided the following documentation:

    -Grade sheet/Certificate of Performance – 28 May 2015 – Central Board of Secondary Education (CBSE), Delhi – Secondary School Examination – Ajmani International School.

    -Marks Statement - 28 May 2017 – CBSE – Senior School Certificate Examination – Ajmani International School.

    -Document issued from CBSE that Pawanpreet Kaur has passed the Senior School Certificate Examination – 28 May 2017 – Ajmani International School.

    -Migration Certificate – 31 March 2017 – CBSE – registration for All India Sr Sch Certificate Examination 2017 – Ajmani International School.

13. In the Notice of Intention to Consider Cancellation (NOICC) dated 16 December 2020, the applicant was advised:

    On 24 November 2020, the Australian High Commission in New Delhi contacted Ajmani International School, the secondary school where you purportedly undertook your Senior School Certificate, to verify the Grade Sheet/Certificate of Performance, Marks Statement, Migration Certificate and a document issued by CBSE that you have passed the Senior School Certificate Examination through Ajmani International School.

    Ajmani International School advised the Department that you were not registered as a student with them and therefore did not obtain qualifications through their institution (Tribunal emphasis).

14. The Tribunal has considered the response to the NOICC, dated 19 December 2020, and the attached documents that were provided to the Department by the applicant’s representative, stating as follows:

    The applicant wishes to affirm that she has successfully completed her senior schooling from Ajmani International school and passed out in the year 2017.

    The applicant is not sure where the issue is in relation to the information received by the department during their checks, and why the school has stated that she was not registered as a student though she has all the evidence that she has passed out in the year 2017 from the said school.

    Her family is highly concerned of her mental and physical wellbeing as she is all alone here in Australia. Her family are wanting to visit the school in person to sort this issue out as they believe that there has to be some miscommunication which has resulted in this information being passed on to the department. Unfortunately due to the COVID situation in India the applicants family is unable to visit the school in person and obtain some written and other evidence to support the applicants claim that she did study and pass out in 2017 from the said school.

    The applicant and her family are very stressed as such checks should have been made prior to visa grant and if the visa was refused in 2018 due to this, the applicant and her family would have set the records straight by visiting the school and sorting out the issue.

    The applicant and her family are mentally very stressed and applicants family are very worried for the applicants wellbeing and they believe that if her visa is cancelled she may be mentally stressed and also due Victoria being in lockdown for a very long time and the applicant being away from family etc, she may not take the cancellation decision lightly and return back home to her family as she and her family have invested a lot of time, energy and money to educate her in Australia.

    But now after 2 years of the visa grant and whilst the applicant is midway through her studies, the department has brought this to the applicants notice. The applicant is now here in Australia and India is at its peak with the pandemic and the applicant is unable to travel back home to visit the school and make enquiries.

    The applicant wishes to request the following from the assessing officer to provide the applicant additional time frame to contact the school administration and sort out the registration error, this can take some time as the school is not easily accessible due to the COVID situation in India.

    The applicant also wishes to state that she is currently enrolled and pursuing her studies and she has till date always abided by all her visa conditions and till date not breached any of her visa conditions and humbly requests that she be allowed to complete her studies.

    The applicant wishes to provide original scanned copies of the certificates in question and requests that the department verify the same and check if they are genuine or not as she is very confident that they are authentic.

    We understand that the concerns raised by the department is of serious nature, but we also believe that the applicant should be given a fair trial and given some time to provide evidence to prove that the answers and evidence provided in her visa application was true and that she has not provided any incorrect answers or any bogus documentation to support her application. We believe that the applicant should not be penalised for any administrative error that the school has made.

15. In the hearing, the applicant maintained that the information she provided with her student visa application was correct and accurate. The Tribunal put to the applicant that in her response to the NOICC, it was indicated that the applicant’s parents would investigate the issue with Ajmani International School to find out why they said she was never registered as a student at their school. However, in response, the applicant indicated that her parents had not contacted the school.

16. The Tribunal put to the applicant that it may find that she had never attended Ajmani International School as she had claimed and may find that the documentation she provided in respect to the Ajmani International School was bogus. In response, the applicant indicated that the information she provided must have been accurate or the Department would not have approved her visa in the first place.

17. In respect to the above, the Tribunal finds that the applicant did not comply with s 101(b) of the Act where she gave incorrect answers on pages 8 and 9 of her student visa application as described above.

18. The Tribunal accepts the above information and finds that the applicant did not comply with s 103 of the Act where bogus documents as described above were provided with her student visa application and were provided by the applicant in her response to the NOICC.

19. Accordingly, the Tribunal finds that applicant did not comply with s 101(b) and s 103 of the Act when she applied for her student visa on 7 September 2018.

    Should the visa be cancelled?

20. 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).

21. 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 Migration Regulations 1994. Briefly, they are:

    ·     the correct information;

    ·     the content of the genuine document (if any);

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

    ·     the circumstances in which the non-compliance occurred;

    ·     the present circumstances of the visa holder;

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

    ·     any other instances of non-compliance by the visa holder known to the Minister;

    ·     the time that has elapsed since the non-compliance;

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches;

    ·     any contribution made by the holder to the community.

22. 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.

23. The Tribunal’s assessment of all the prescribed circumstances as set out in reg 2.41 is as follows.

    The correct information

24. The correct information is that the applicant did not attend Ajmani International School. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    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

25. The Tribunal finds that the decision to grant the applicant a student visa was based partly on incorrect information and partly on a bogus document as described above. The Tribunal gives this consideration high weight against the applicant.

    The circumstances in which the non-compliance occurred (reg 2.41(d))

26. In the hearing, the Tribunal discussed the circumstances in which the non-compliance occurred. Again, the applicant maintained that she had provided correct information as part of her student application, and she could offer no reasonable explanation as to why Ajmani International School said she did not attend their school other than to suggest, as she did in her response to the NOICC, that the Ajmani International School had made an “administrative error”.

27. In discussing these issues with the applicant, the Tribunal does not accept that the circumstances as put forward by the applicant are credible. The Tribunal does not accept that the Ajmani International School had made an “administrative error”. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    The present circumstances of the visa holder (reg 2.41(e))

28. The visa holder is currently lawfully onshore as a holder of a bridging visa E. She does not have any accompanying dependants on the student visa. Accordingly, the Tribunal gives no weight in the applicant’s favour.

    The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958 (reg 2.41(f))

29. The Tribunal is not satisfied that the applicant has made sufficient proactive attempts to provide correct information to the Department and the Tribunal. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    Any other instances of non-compliance by the visa holder known to the Minister (reg 2.41(g))

30. There is no other information before the Tribunal indicating other instances of non‑compliance. The Tribunal gives this consideration no weight.

    The time that has elapsed since the non-compliance (reg 2.41(h))

31. The non-compliance occurred when the applicant applied for the student visa on 7 September 2018. The time that has elapsed since the non-compliance is now nearly four years. The Tribunal gives this consideration some weight in the applicant’s favour.

    Any breaches of the law since the non-compliance and the seriousness of those breaches (reg 2.41(j))

32. There is no information before me to indicate that the applicant has breached any laws since the non-compliance. The Tribunal gives this consideration no weight.

    Any contribution made by the holder to the community (reg 2.41(k))

33. There is no specific information before the Tribunal to suggest the applicant has made a contribution to the Australian community. The Tribunal gives this consideration no weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled consequentially

34. There are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act. The Tribunal gives this consideration no weight.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

    The applicant made clear to the Tribunal that she does not fear returning to India. Accordingly, there is no information before the Tribunal to indicate the circumstances of this case are such that would engage Australia’s international obligations. The Tribunal gives this consideration no weight.

    Whether there are mandatory legal consequences to a cancellation decision

35. If the student visa is cancelled, the applicant would become an unlawful non-citizen and could be liable for detention under s 189 and removal under s 198 of the Migration Act 1958 (Cth) if she does not voluntarily depart. In addition, the cancellation could also place a limitation under s 48 of the Act which means that the applicant will have limited options to apply for further visas in Australia. In addition, the applicant may not be able to satisfy public interest criterion 4013 and therefore the applicant may not be able to be granted a further temporary visa for a period of three (3) years. The Tribunal gives this consideration no weight.

    Degree of hardship that may be caused (financial, psychological, emotional, or other hardship)

36. The applicant indicated that she would incur some hardship if her student visa was cancelled. The applicant indicated that she had “lost three years” and she had “not gained anything”. She indicated that she was concerned she may not get admission to undertake further study in India. The Tribunal gives these considerations some weight in the applicant’s favour.

    Any other relevant matters

37. The applicant indicated that there were no other relevant matters. The Tribunal gives this consideration no weight.

    DECISION

38. In balancing the above circumstances, the Tribunal finds the reasons to cancel outweigh the reasons not to cancel the visa.

39. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay
    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.