Kaur (Migration)

[2022] AATA 654

Kaur (Migration) [2022] AATA 654 (23 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Harpreet Kaur

CASE NUMBER:  2007831

HOME AFFAIRS REFERENCE(S):          BCC2017/361355

MEMBER:Kira Raif

DATE:23 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 23 March 2022 at 4:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – discretion to cancel visa – bogus documents provided with visa application – evidence of financial arrangements – names of and relationship with claimed grandparents supporting study – mother’s school record – discretion to cancel visa – applicant provided genuine documents to agent and relied on agent without reviewing application – close to completing course – visa would have expired in any case – short-term intention to apply for another student visa – relationship with Australian citizen partner, longer-term intention to marry and apply for partner visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(b), (c), 98, 100, 103, 107, 109(1), 359A
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in June 1994. She was granted a Student visa in October 2016. In November 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s 103 of the Act. The applicant does not appear to have responded to the NOICC. Her visa was cancelled in December 2017. In June 2019 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and the matter was remitted to the Tribunal for reconsideration.

3. The applicant appeared before the Tribunal on 15 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Mr Singh. 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 set aside.

   Relevant law

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.

   Did the notice comply with the requirements in s 107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s 107. The Tribunal is satisfied that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

8. 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 the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made an application for a Student visa on 19 September 2016 to enable her to undertake an MBA at Charles Darwin University. The applicant was granted the Student visa on 21 October 2016 and the visa was due to be in effect until 15 March 2019.

10. The primary decision record indicates that that as evidence of her financial arrangements the applicant presented a number of financial records, including

    -An affidavit from her grandparents Manjit Kaur and Satnam Singh undertaking to finance her studies,

    -Bank records for Manjit Kaur and Satnam Singh from Guleria and Guleria Consultants,

    -Income tax assessment notices for Satnam Singh for the period from 2013 to 2016,

    -Statement of account from Punjab National Bank in the name of Satnam Singh,

    -A letter from Allahabad Bank showing the balance of funds for a term deposit in the names of Manjit Kaur and Satnam Singh,

    -Mr Satnam Singh’s permanent account number, and

    -identity and educational documents for the applicants’ mother Narinder Kaur.

11. The primary decision record indicates that evidence of the applicant’s relationship with her claimed grandparents Satnam Singh and Manjit Kaur was found to be non-genuine. In particular, it is stated that Narinder Kaur’s school certificate issued by Punjab School Education Board shows that she completed Government High School at Balachur in March 1982, however, internal checks with the overseas office at Delhi in February 2017 showed that Punjab School Education had identified four relevant schools at Hoshiarpur and none matched the education provider listed on the school certificate. An officer of the Department contacted the school principals to enquire whether they had information about Government Girl High School at Hoshiarpur but they indicated they had no knowledge of this school. It was also noted that the school certificate did not meet the relevant format of a certificate issued by Punjab School Education Board.

12. The primary decision record indicates that the delegate conducted a check of the Government Girls High School at Hoshiarpur on the Punjab School Education Board website and there was no result. The delegate also notes that the school certificate shows the school location at Sahibzada Ajit Singh Nagar district but that area is located near Chandighar and not in Hoshiarpur. The delegate concluded that the school certificate for the applicant’s mother was a bogus document and that document was used to evidence the applicant’s relationship with her grandparents, who provided the financial support for the applicant’s study. The delegate notes that the applicant did not provide any evidence of her mother’s relationship with the claimed grandparents (such as, for example, a passport) and the delegate concluded that the claimed grandparents were not related to the visa applicant.

13. It appears that the applicant did not provide a substantive response to the NOICC. In her written submission to the first Tribunal, dated 3 April 2019, the applicant outlined her family and educational background. Relevantly, the applicant states that her mother’s educational document was issued by the Punjab State Education Board (PSEB) situated in Mohali and the name of the school changed from Government High Girls High School to Government Girls Senior Secondary school. The applicant states that the document is very old and the PSEB would not have record of it. The applicant provided a statement purportedly from the current principal of the school including photograph of the school. The applicant states that she trusted her migration agent in providing the documents for the visa application and was a victim of mistakes made by others. The applicant states that she had never breached the conditions of her visa, has no criminal record and is determined to complete her studies and contribute to the Australian community. The applicant claims that she authorised Milestone Immigration and Education consultants to lodge her papers and had no contact with Guleria and Guleria and had not signed the form. The applicant states that she had ‘nothing to do’ with the documentation provided by the agent. In her post-hearing submission to the first Tribunal the applicant provided financial records relating to her family members and states that she was given evidence of visa grant by the agent but not a copy of the application.

14. In 2016 the Department received an allegation that the applicant provided incorrect information in her application by claiming Satnam Singh and Manjit Kaur were her grandparents and supported her study in Australia. The allegation also suggested that the real source of funds was the applicant’s boyfriend in Australia, whom she intended to marry and include in her visa. The Tribunal provided that information to the applicant pursuant to s. 359A of the Act.

15. In her oral evidence to the first Tribunal, the applicant confirmed that her grandparents’ names are Amani Chand and Swaran Kaur and not Satnam Singh and Majit Kaur. The applicant’s evidence is that while her mother did attend the stated school but the names of the mother’s parents had been incorrectly recorded.

16. The applicant submits that she entrusted her application to a migration agent and was not familiar with the content of her application. The applicant provided to the Tribunal various documents of her interactions with Milestone Immigration Consultants and the Tribunal accepts that an agent assisted the applicant with her visa application. However, the Tribunal is of the view that the applicant had the responsibly of checking the documents before these were submitted and an opportunity to do so, as she may have had the opportunity to withhold payment from the agent until her requirements were met. The Tribunal is also mindful that ss 98 and 100 of the Act make it clear that it is not necessary for the applicant to be personally involved in the fraud, nor even to be aware of it, for the grounds for cancellation to be established.

17. In her written submission to the Tribunal of 9 February 2022 the applicant outlined her background, noting that she always wanted to study in Australia to  better opportunities. She claims she selected a migration agency and sent them the requested documents. She states that the agent did not ask for evidence of finances – which she had – and when her visa was granted, the agent did not inform her what documents were used in her vias application. The applicant notes that she had lost her father in 2013 and she only had her mother to help with the application. The applicant states that visa process was new to her and she relied on the agent and only provided genuine documents to the agent and it was not possible for her to know what documents were submitted. The applicant repeated these claims in her written submission of 10 March 2022.

18. The applicant states that after receiving the NOICC, she obtained the FOI and realised that some of the information was not provided by her, she did not know fraudulent documents were submitted. The applicant states that she did not sign the agency form. 

19. With respect to her relationship, the applicant states that before her arrival in Australia, arrangements were made to live with her cousin’s friend and as they lived together, their feelings for each other had developed. The applicant confirms that she did not have a relationship before coming to Australia, they decided to be together after living together in Australia and have separated since 2018.

20. The Tribunal finds, having regard to the Departmental investigations as well as the applicant’s oral evidence, that the mother’s school record was a bogus document because it was altered by a person without authority and incorrectly named the mother’s parents as Satnam Singh and Manjit Kaur. The Tribunal finds the mother’s education document is a bogus document within the meaning of s. 5(b) of the Act. The Tribunal further finds that the affidavit from Manjit Kaur and Satnam Singh undertaking to provide financial support to the applicant is a bogus document  within the meaning of s. 5(c) of the Act. The Tribunal finds that the applicant gave, or caused to be given, bogus documents with her Student visa application. The Tribunal finds that the applicant did not comply with s. 103 of the Act. The Tribunal finds that there was non-compliance with s. 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

21. 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).

22. 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. They are:

    The correct information

23. The correct information is that the claimed grandparents who undertook to provide financial support for the applicant’s study in Australia were not in fact the applicant’s grandparents and would not have provided such support. The support came from other sources. The applicant claims that her family had the income and the ability to support her study but the issue here is not whether the applicant had the means to support her study but that she did provide evidence that such support was being provided from sources that did not exist.

    The content of the genuine document (if any)

24. The genuine documents would not show that the persons who undertook to provide financial support to the applicant would provide such support or that they are, in fact, related to the visa 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 applicant would have been required to meet PIC 4020. The applicant concedes that the mother’s educational record is a bogus document because it incorrectly identifies her parents and, therefore, the applicant’s relationship with those who had undertaken to provide her with financial support. If that information was known to the decision-maker, it is possible that a finding would have been made that the applicant did not meet PIC 4020(1) and in any case, the provision of bogus documents would have been relevant to the assessment of PIC 4020. Thus, the Tribunal finds that the decision to grant the visa was based, in part, on bogus documents.

    The circumstances in which the non-compliance occurred

26. The circumstances in which the non-compliance occurred are outlined above. Essentially, the applicant submits in her evidence to the Tribunal that the school did exist and her mother did attend that school (she provided to the Tribunal evidence relating to her mother’s study) but she concedes that the names of her mother’s parents are incorrectly recorded. The Tribunal notes that the mother’s study was irrelevant the applicant‘s student visa application and the mother’s educational document was submitted as evidence of the applicant’s relationship with the claimed grandparents and not as evidence of her mother’s study. That  is, the information that was relevant to the applicant’s own decision was false.

27. The applicant states that she provided genuine financial documents to the agent and the agent explained to her that she did not need the financial records as yet. She did not see what documents had been submitted by the agent. The applicant claims that she had entrusted the submission of the application to her migration agent and was not given a copy of the application. The applicant provided to the Tribunal evidence of her interactions with the agent. The applicant’s evidence is that she relied on the agent, provided only genuine documents to the agent and was unaware of the information the agent submitted with her application, which she did not see.

28. The applicant told the Tribunal that the agent did not show her the application form and did not give her details of the Immi account when she asked and she had no way of checking the application. She states that the agent only gave her evidence that the application was lodged but no other information, despite her many requests. The applicant states that when she wanted to check the application, the agent was not cooperating and that is how things are generally done in India. Mr Singh told the Tribunal that it is common in India to change the documents to ensure visa grant and offshore migration agents are not bound by a Code of Conduct. The Tribunal accepts that is the case. As noted above, the Tribunal accepts that the applicant had an agent who assisted her with the application, but in the Tribunal’s view, that does not diminish the applicant’s own responsibility for the content of her application.

29. The applicant also told the Tribunal that she was young and with little experience and did not know what to do. The Tribunal does not accept that submission. In the Tribunal’s view, if the applicant was old and experienced enough to travel to, and live in a foreign country and undertake study at a post-graduate level, she would have sufficient life experience to take steps to deal with the agent or ensure the accuracy of her application. The Tribunal is also mindful of the applicant’s evidence that she had not paid the full fees until the visa grant and had not paid the application fees until September 2016 (the time the application was made). In the Tribunal’s view, the applicant had the leverage with the agent of not paying the full fees, or not paying the visa application fee, until she was given a copy of the application and had a chance to read the application form and check its content. The applicant told the Tribunal that her study was about the commence and the agent assured her that they were familiar with the process, they refused to show her the documents and only sent her the screenshot proving lodgement but she trusted them. The Tribunal accepts that she did but despite that, the Tribunal is of the view that the applicant did have a chance (and a responsibility in the Tribunal’s view) to check the content of the application. The Tribunal is concerned that the applicant had not taken sufficient steps to ensure the application contained genuine information and documents.

    The present circumstances of the visa holder

30. In her evidence to the Tribunal the applicant refers to her study in Australia and the effect that the cancellation of her visa would have on her. The Tribunal accepts that if the applicant does not hold a Student visa, this may affect her future study, although the Tribunal is also mindful that the visa in question would have already expired and it would not therefore permit the applicant to remain in Australia to pursue study. The applicant told the Tribunal, and confirmed this in her written submission of 23 March 2022 that  if her visa is reinstated, she intends to apply for another Student visa and will be eligible to make that application. The applicant provided to the Tribunal evidence of having approached education providers for a offer letter.

1. The applicant refers to her relationship with Mr Singh, who is an Australian citizen. The applicant states that they were good friends since 2018 and had been in a relationship since mid-2020. In her submission to the Tribunal the applicant provided evidence of her relationship with her partner and a statement from Mr Singh who outlines his history of his relationship with the applicant and their personal circumstances. The applicant told the Tribunal that they plan to get married later in the year and once they are married, Mr Singh would sponsor her for a Partner visa. In the meantime, she is in the process of divorcing her previous partner. The applicant states that Mr Singh’s parents have been granted visitor visas and he plans to introduce her to his family. She states that they want to live together and are emotionally attached to each other.

2. The applicant told the Tribunal that if she makes an application for a Partner visa offshore, Mr Singh will travel with her to India as they do not want to be separated and they are both attached to each other and are emotional about it.

3. The applicant told the Tribunal that her present bridging visa does not allow her to study so she has not been able to engage in studies and the Department refused to issue her with work rights and study rights. She states that she needs to complete two more subjects to get the Masters and she wants to continue with her studies once she has the student visa reinstated.

4. The applicant provided to the Tribunal evidence of community contribution, including Red Cross and CanTeen donations, and a pet registration certificate. The applicant told the Tribunal that she had adopted a dog and it would be hard for her to be separated from the dog. The Tribunal accepts that evidence. 

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

5. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

   Any other instances of non-compliance by the visa holder known to the Minister

6. There are no other known instances of non-compliance.

   The time that has elapsed since the non-compliance

7. The application was made in September 2016 and approximately five and a half years passed since the non-compliance. The Tribunal does not consider this to be a lengthy period but it is not an insignificant one.

   Any it is breaches of the law since the non-compliance and the seriousness of those breaches

8. There are no known breaches of the law and the applicant presented to the first Tribunal her police clearance certificate.

   Any contribution made by the holder to the community.

9. The applicant refers to her desire to make a contribution to the community. She provided to the Tribunal a number of character references and other statements, as well as evidence of having made donations to the Red Cross and CanTeen. The Tribunal accepts the evidence in these documents. The applicant also refers to voluntary work at the Sikh Temple. The Tribunal accepts that the applicant has made a contribution to the  community.

10. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s.140.

11. The primary decision record indicates that when the visa was granted, the applicant did not include any dependents. Her husband had subsequently made an application for a Student visa as a member of the applicant’s family unit but the delegate notes that his visa was refused. It would thus appear that there are no other persons whose visas may be subject to consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

12. There are no children who would be affected by the cancellation.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

13. The applicant told the Tribunal that divorce is not common in India and she is still concerned about her parents in law and what they might do to her. The Tribunal does not accept that evidence. The applicant’s evidence is that she had separated from her ex-partner in 2018, about four years ago. There is no evidence that in that period the applicant had received any harm or threats of harm from her parents in law or, indeed, that they have shown any interest in the applicant. Her evidence to the Tribunal is that she has not had any contact with her parents in law since the separation and she said she is not sure whether they are still thinking about it. The applicant states that it is just her thought but she is not sure what they think. In the circumstances, the applicant’s claim that her parents in law may wish to harm her is nothing but speculation and, in the Tribunal’s view, it is entirely unfounded. The Tribunal does not accept that there any chance or any risk of the applicant being harmed by her parents in law or anyone else upon return to India. The Tribunal does not consider that  the cancellation of the visa will lead to the removal of the applicant in breach of Australia’s non-refoulement obligations.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

14. If the applicant’s visa is cancelled, unless she is granted another visa, the applicant would be an unlawful non-citizen and may be detained. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellations and the applicant may be subject to an exclusion period in relation to future visa applications. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention although there are restrictions on the types of visas the applicant could apply for onshore.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

15. The applicant provided to the Tribunal evidence of her past study and other activities and she refers to the hardship that would experience if she cannot continue her study in Australia. The applicant explained to the Tribunal her family background and her desire to complete her study in Australia. the applicant states that  she had invested over $35,000 in her study and only has two subjects to complete the course. The applicant refers to the hardship she would experience if she cannot complete her study. The Tribunal acknowledges that evidence but is mindful that the visa in question would have expired so irrespective of the outcome of this review, the applicant would be unable to remain in Australia as a holder of that visa and would need to seek another visa.

16. The applicant presented several character references and other statements in support of her application and the Tribunal accepts the evidence in these documents.

17. The applicant referred to her relationship with the Australian citizen partner and presented evidence of that relationship to the Tribunal. The Tribunal accepts, for the purpose of this review, that the applicant is in a genuine relationship with Mr Singh. The applicant states that she may be unable to meet the Schedule 3 requirements for an onshore application and may have to apply offshore, which might take years and would lead to the separation from her partner. This would cause hardship to both of them. the Tribunal accepts that if the applicant was to leave Australia, and to seek a Partner visa offshore, this may lead to a lengthy separation from her partner. The Tribunal accepts that this may cause hardship to both of them.

18. The applicant states that she has not told her mother about her visa issues. Her mother has gone through a lot and she does not want to cause her mother additional stress. The Tribunal accepts that evidence. The applicant refers to the hardship she would experience by not completing her study in Australia. The Tribunal accepts that it is the applicant’s desire to complete her studies in Australia.

19. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant had given bogus documents with her visa application and that she did not comply with s. 103 of the Act. The Tribunal has found that there are grounds for cancelling her visa.

20. The applicant’s evidence is that she was not personally involved in the preparation of bogus documents and was unaware of that but she was inexperienced and relied on a migration agent. The Tribunal has formed the view that the applicant may not have taken adequate steps in checking the content of her application. In the Tribunal’s view, the circumstances in which the non-compliance occurred weigh in favour of cancellation. However, the Tribunal also considers it important that there is no evidence that the applicant was personally involved in the preparation of bogus documents or aware of it. The Tribunal’s concern is with the applicant’s failure to act, rather than with her acting in a dishonest way or with her involvement in the fraud. It is also a significant factor, in the Tribunal’s view, that the decision to grant the visa was based on bogus documents because the applicant’s financial circumstances would have been relevant to that decision, as well as to the application of PIC 4020. This also weighs heavily in favour of the cancellation.

21. However, in the circumstances of this case, the Tribunal decided to place greater weight on other factors. Firstly, the Tribunal acknowledges that the cancellation of the visa would cause significant hardship to the applicant. This is because, firstly, she has completed a significant part of her course and would benefit from being able to complete her studies in Australia. If her visa remains cancelled, it may be some years before the applicant is able to obtain another student visa to pursue study in Australia. Secondly, the Tribunal acknowledge the applicant’s evidence of her relationship with an Australian partner and their stated intention to marry. Again, the cancellation of the visa may affect such plans.

22. Importantly, the Tribunal acknowledges the applicant’s evidence that if her visa is reinstated, she intends to (and will be able to) seek another Student visa. As the visa in question would have already expired, the reinstatement of the present visa will not permit the applicant to remain in Australia but will give her the option of seeking another visa in Australia and that visa will be assessed on the basis of genuine documents and truthful statements. Thus, the reinstatement of the visa will serve an important purpose of enabling the applicant to seek other visas and will otherwise have very limited purpose (the visa having already expired). In all the circumstances of this case, the Tribunal has decided that a preferable decision is to enable the applicant to seek another visa and to enable an assessment of her eligibility for the visa to be made on the basis of genuine documents. That can only be achieved if the cancellation is set aside.

23. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Kira Raif
    Senior Member