Keerthi (Migration)

[2019] AATA 6712

Keerthi (Migration) [2019] AATA 6712 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Srikanth Keerthi

CASE NUMBER:  1905991

DIBP REFERENCE(S):  BCC2017/3532875

MEMBER:Jason Pennell

DATE:1 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 1 October 2019 at 12.24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – financial capacity – bogus document – sanction of loan letter – consideration of discretion – grant of visa based on incorrect information – aware that false information had been provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 99, 100, 101, 103, 107, 109
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 to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information regarding his relationship status to facilitate the granting of his student visa in breach of s.101(b) of 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.

3. The applicant appeared before the Tribunal on 30 September 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

4. 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

1. 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.

2. 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.

3. 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?

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act by reason that the applicant provided incorrect information regarding his relationship status to facilitate the grant of his Student (subclass 573) visa. 

Relevant Sections of the Act.

1. Section 101 of the Act states that:

   ‘Visa 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.’

2. Section 99 of the Act provides 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.

3. Section 103 of the Act states:

   ‘Bogus documents not to be given ect.

   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.’

4. Section 5 of the Act states:

   Interpretation  

   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.

5. Finally, s.100 of the Act states:

   Incorrect 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.

The Department Review

1. On 5 July 2017 the applicant submitted an application for student visa using the online lodgement form ‘Application for a Student Visa’ (‘the application).

2. On page 8 of the application under the section entitled ‘Financial support an Individual’ the applicant stated that his financial support was funded by his parents by a loan from the Bank of India in the amount of approximately $AUD40,000.00.

3. On page 13 of the application the applicant answered ‘yes’ to the following:

   Warning

   Giving False and misleading information is a serious offence.

   The applicants declare that they:

   Have read and understood the information provided on the website ( regarding living and studying in Australia.

4. On page 14 of the applicant the applicant answered ‘yes’ to the following statements:

   The applicants declare that they:

   Have read ad understood the information provided to them in this application.

   Have provided complete and correct information in every detail on this form, and any attachments to it.

   Understand that any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicant’s fail to satisfy the Minister of their identity, the application may be refused and the applicant 9s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.

   Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

5. As part of the application for a student visa the applicant supplied a sanction of loan letter dated 19 May 2017 from the Jayotinagar Branch of the Bank of India, reference no JYT:2017-18:EDU 324, Sanctioning Authority: Branch Manager. The letter outlines the details of an education loan made out to the applicant in the amount of INR2,000,000 (approximately $AUD40,000.00), with a repayment period of 84 months. A copy of the letter was on the department file.[1]

   [1] BCC2017/3532875 @ f.4 & f.14

6. On 21 August 2017, open assessment of the applicant and having satisfied all relevant criteria, the applicant was granted a student visa. On 13 September 2017, the applicant arrived in Australia to commence his studies.

7. On 11 September 2017, the department officers in the Australian High Commission in New Delhi, India contacted a Chief Manager of the Bank of India requesting that the sanction of loan letter provided by the applicant in his student visa application be verified.  In response, on 11 September 2017, the Chief Manager of the Bank of India advised the department by email that no such letter was issued by the Jayotinagar Branch of the Bank of India.

8. By a Notice of Intention to Consider Cancellation under s.109 of the Act the dated 28 December 2018 (‘NOICC”) the department informed the applicant of the grounds upon which it intended to cancel the applicant’s visa and provided him an opportunity to respond to the notice in writing within 14 Days.

9. In response to the NOICC the applicant provided the department with submission dated 10 January 2019 (the NOICC submission). At the department’s request he applicant provided further responses dated 18 January 2019 and 28 February 2019.

10. In the NOICC submission the applicant conceded that he had not complied with s.101(b) of the Act. He stated that after reviewing the financial documents he was informed by his agent that the financial information he had submitted was not sufficient for him to proceed further. He further stated that he was advised by his agent to obtain a bank loan. As a result his agent charged him INR3200 as an application fee to get his loan sanctioned. The applicant claims that he had only a short time to get the COE and lodge the student visa application as the course commencement date was rapidly approaching. As a result he states that he provided his agent with his scholarship grant letter, income tax returns, asset valuation reports of his parent’s properties and fixed deposit certificate. In addition he paid the application fee.[2] The applicant submits that he put his trust in the agent and that he was unaware that the education loan sanction letter was a bogus document. Nevertheless he did concede that it was the basis upon which obtained his student Visa on 21 August 2017.

    [2] Applicants submission dated 10 January 2019 @ paragraph 26-28; BCC2017/3532875 @ f.51

11. In the submission, the applicant states that his agent helped him get the IND 2,000,000 loan from the Bank of India and confirms that on the basis of the documents lodged he obtained his student visa on 21 August 2017.[3] The applicant confirms ‘that the Education Loan sanction letter was a bogus document’ but says that he was unaware of that fact.[4] The applicant acknowledges that it was a ‘grave mistake’ by his agent and that he should have been more vigilant about that letter.[5]

    [3] Applicants submission dated 10 January 2019 @ paragraph 29-30; BCC2017/3532875 @ f.51

    [4] Applicants submission dated 10 January 2019 @ paragraph 30; BCC2017/3532875 @ f.51

    [5] Applicants submission dated 10 January 2019 @ paragraph 40; BCC2017/3532875 @ f.51

12. In the NOICC submissions the applicant claims that that his visa should not be cancelled because:

    ·The applicant claims that he has studied hard and passed all the subjects in his course to date. He has maintained his attendance at university and paid all tuition fees on time. The applicant claims that he has always complied with his student visa conditions and has maintained his health cover.

    ·The applicant’s parents have sent him from India on a regular basis to pay his fees and living expenses. He works part-time for Bradbury Industrial Services Pty Ltd within the permitted working hours under his student visa.

    ·The applicant has successfully completed his studies at Central Queensland University with only one term remaining of his postgraduate degree. The applicant claims that he and his family have already invested so much money, time and effort to obtain his postgraduate degree in Australia, that it would be unfair or his visa to be cancelled.

    ·The applicant acknowledges that a ‘grave mistake’ has been made by his agent in India when applying for the visa. He acknowledges that he should have been more vigilant about the loan but states that he trusted his agent who appeared to be reputable.

    ·The applicant claims it is common practice that middlemen or bank agents charge fees to process loans quickly.  That the applicant states that the amount of time that has elapsed since the non-compliance occurred should also be taken into account. He argues that the department were aware of his non-compliance days before his arrival in Australia but did not act until December 2018 after he had been in Australia for over a year. He claims that had the department acted closer to the time of his arrival it would have saved him a lot of time and money spent in Australia on his postgraduate studies. Instead he could have taken admission to a course in India.

    ·The applicant claims it was never his intention to mislead department. He claims that he was not aware that the sanction letter was bogus. He stated that he provided the paper work for his parent’s properties and paid the agents fee to facilitate the loan.  The applicant claims that it all happened quickly and positively that he never paid any attention and that the loan letter could be faked.

    ·The applicant claims his family have spent considerable amount of money on his education in India and in Australia. If he was returned to India without his qualification all his parents money would be waste.

    ·The applicant submits that he wants to finish his Masters of Management for Engineers course at Central Queensland University before returning to India to start his career as an engineering manager. He claims that his family have high hopes that he will complete his studies and bring pride to his family. Failure to so will bring great embarrassment to him and his family.

13. On 18 January 2019 the department requested further documents from the applicant including the last three months of his bank statements and the last four payslips of his employment with Bradbury Industrial Services Pty Ltd. As a result the applicant provided the department with the following documents: 

    (a)Payslips for the applicant from Bradbury Industrial Services for weekly salary payments from 6 December 2018 to 3 January 2019.

    (b)Commonwealth Bank Smart access bank statement term from 1 July 2018 to 31 December 2018.

    (c)University vacation statement from Central Queensland University dated 3 December 2018. Letter confirms that the applicant’s and rollers. Full-time student and not required to clean the 10 classes between 20 October 2018 and 10 March 2019.

14. On 25 March 20, 2019 the department requested the applicant send further documents specifically in relation to his payslips with Validek Enterprises Pty Ltd for the period July to September 2018. As a result the applicant provided the department the following:

    (a)Five payslips from Validek Enterprises Pty Ltd from 6 August 2018 to 25 October 2018 and

    (b)Unofficial transcript from Central Queensland University for the applicant’s Masters of Management for Engineers including his academic grades and confirmation of his enrolment term one 2019.

15. On 12 March 2019 the department notified the applicant of the cancelation of his student visa pursuant to s109 of the Act on the basis that he had not complied with s.101(b) and 103 of the Act. The applicant made application to the Tribunal to review the department’s decision to cancel his visa.

The Tribunal Review.

1. In support of his application to review the department’s decision the applicant provided the tribunal with a submission dated 20 September 2019 (‘the Tribunal submissions’)  which included the following documents:

   (a)Indian education documents, including the applicant’s Secondary School Certificate and his academic record from Anna University.

   (b)Transcript of Masters of Management from CQ University.

   (c)Offer letter and Confirmation of enrolment.

   (d)Bank of India sanction of loan letter dated 19 May 2017 from Basheerbagh Branch Hyderabad. 

   (e)BC Director of Welfare Post Matriculation Scholarship dated 3 March 2017.

   (f)Australian visa grant dated 5 July 2017

   (g)Banks statements of the applicant’s Commonwealth Bank account.

   (h)Various letters from Phoenix Forge Pvt Ltd.

   (i)SBL Life Insurance, First Premium Receipt dated 1 November 2018

   (j)Statement by SBI dated 2 January 2019.

   (k)Various tax invoice/recarpets from CQ University

   (l)2019-20 income tax return (including statement of income) for Keerthi Venkata.

   (m)2019-20 income tax return (including statement of income) for Keerthi Bharathi.

   (n)State bank of India, Statement of Account for K Venkata & K Bharathi dated 19 September 2019.

   (o)Valuation Report for State Bank of Hyderabad dated 11 February 2017.

   (p)Various Registered Sale Deeds including affidavits by Keerthi Venkata and Certificates of Registration by the Government of Andrash Pradesh.

2. The applicant’s Tribunal submissions are expressed in the same terms as the NOICC submissions.  Principally the applicant claims that the student loan was arranged by his agent and as a result he was not aware that the sanction letter was bogus. As such the applicant before the tribunal conceded that the sanction letter was a false document but stated that having relied on his agent he was not aware that the sanction letter and the loan were false.

3. Accordingly the applicant pressed the Tribunal to exercise its discretion by not cancelling the his student visa on the basis that he and his family would suffer considerable hardship by reason of the fact that they had spent considerable money on his education and that he had only one term left to complete.

4. Therefore based on the applicant’s own evidence the Tribunal is satisfied, and finds, that the information about the student loan in the application visa application was incorrect and the sanction letter provided with the applicant’s application was a bogus document as defined under s.5 of the Act.

5. Tribunal considers that the applicant’s provision of the letter in relation to the loan along with his acknowledgement that his education consultant submitted the incorrect information to the Department with his student Visa application confirms this determination.

6. No information has come before the Tribunal to contravene or disprove the non-compliance provided in the notice. As a result the Tribunal is satisfied that the grounds for cancellation of the Visa holder student Visa under section 109 of the migration act.

7. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

1. 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).

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. 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.

1. 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.

Correct Information

1. The correct information is the applicant did not have a bank loan to the amount of INR2,000,000 which equates to approximately AUD40,000 as proof of access to sufficient funds to support his stay in Australia while pursuing his post graduate studies.

2. The applicant provided answers in is visa application that have found to be incorrect and which the applicant has conceded are incorrect. That is that he had access to genuine funds from a bank loan issued by the Bank of India to the amount of INR2,000,000. This information was given significant weight the assessment and granting of the applicants student visa.

3. The applicant did not dispute the wrong doing but states that he was not aware that the answer was incorrect. However, during the course of the applicant confirmed to the Tribunal that despite being aware that he had applied for, and was granted, his student visa on the basis of having obtained a student loan from the Bank of India, that neither he nor his parents had executed any loan documentation in favour of the Bank of India for the purposes of entering into such a loan. As such, it appears that the applicant was aware that the incorrect information had been included in his application for the student visa. 

4. Nevertheless, even if the applicant had been unaware that incorrect information in his application was incorrect, pursuant to s.100 of the Act the fact that the information was incorrect means that he has failed to comply with s.101(b) of the Act.  Section 100 of the Act states that information provided as part of a visa application, whether or not someone completed the application on behalf of the visa holder, or the visa holder was unaware the answer was incorrect, the answer still constitutes incorrect information by operation of the act and as non-compliance with section 101(b).

5. Accordingly, on the basis of the applicant’s own evidence, the Tribunal finds that the applicant did provide incorrect information in relation to his student loan for the purposes of obtaining an immigration advantage.

6. Accordingly, the Tribunal gives this consideration no weight in the applicant’s favour.

Content of the genuine document

1. On 11 September the Chief manager of the Bank of India con=firmed to the department that the sanction letter provided by the applicant in his student visa application had not been issued by the Jayotinagar Branch of the Bank of India. Therefore, it was established that the sanction letter provided to the department was a bogus document. The applicant did not dispute the fact that the document was bogus.

2. At the hearing the applicant was referred to the fact that the sanctioned letter provided to the department was different from the sanctioned letter provided by the applicant with the Tribunal submissions.  In particular, the letter provided to the department referred to the Jayotinagar Branch of the Bank of India while the copy of the sanctioned letter provided with the Tribunal submissions referred to the Basheerbagh Branch of the Bank of India in Hyderabad. The fact that the two documents is curious and shows that there appears to be more than one version of the document upon which the applicant is prepared to rely. The applicant was not able to provide any reason for the difference between the two documents. However, in circumstances where the applicant has already conceded to that the sanctioned letter was bogus nothing turns on the difference between the two copies of the letter.

3. Finally, under s.103 of the Act a noncitizen must not give, present or provide a bogus document or cause such a document to be given resented or provided. The fact that the applicant engaged an agent who caused a bogus document to be lodged with his visa application does not relieve the applicant from his obligations under s.101(b) of the Act.

4. Accordingly, the Tribunal places no weight on the documents in favour of the applicant.

The decision to grant a visa based, wholly or partly, on incorrect information.

1. The Tribunal has found that the applicant provide incorrect information in his application for a student visa. This information was given significant weight by the department in the assessment and granting of the applicants student visa. Had the department been aware that the applicant did not have the access to the funds as claimed, it is likely that he would not have been granted the student visa.

2. As the decision to grant the visa was based on incorrect information, the Tribunal gives this consideration no weight in the applicant’s favour.

Circumstances in which the non-compliance occurred

1. The non-compliance occurred as a result of the applicant proving incorrect information in relation to his access to funds by a student loan with the Bank of India in his application for a student visa.

2. The applicant has conceded that the information in relation to the loan is incorrect and that the sanctioned letter provided to the department as evidence of the student loan is bogus.

3. Accordingly the Tribunal does not give the applicant any weight in his favour in relation to this matter.

The present circumstances of the visa holder

1. The applicant’s evidence at the hearing was that the student loan was arranged by his agent and as a result he was not aware that the sanction letter was bogus. As such he conceded that the sanction letter was a false document but stated that having relied on his agent he was not aware that the sanction letter and the loan were false.

2. However, the applicant submitted the applicant claims that he has studied hard and passed all the subjects in his course to date. He has maintained his attendance at university and paid all tuition fees on time. The applicant claims that he has always complied with his student visa conditions and has maintained his health cover. The Tribunal accepts that the applicant has passed his subjects in the course to date, maintained his attendance at the University and otherwise complied with his visa conditions as claimed including the payment of all tuition fees.  

3. His evidence was that his parents had provided the funds for him to pay for his student fee and living expenses. In addition he has contributed to his living expenses and student fees by working at Bradbury Industrial Services and Validek Enterprises Pty Ltd. In support of this claim the applicant provided copies of his bank statements and his parent’s statement’s. However, the fact that the applicant has received money from his parents directly rather than via the student loan appears to support the Tribunals finding that the applicant was aware that false information had been provided about the student loan in his application.

4. The applicant’s position is that he and his parents have expended a lot of money on his education and that it will be wasted if his student visa is cancelled. However, there appears to be no reason why the applicant could not apply the credits he has obtained in Australia toward a degree in India. The applicant was not able to provide the Tribunal with any reason why this could not be achieved on his return to India.

5. In his submissions the applicant acknowledges that a ‘grave mistake’ has been made by his agent in India when applying for the visa. He acknowledges that he should have been more vigilant about the loan but states that he trusted his agent who appeared to be reputable. However, based on his evidence to the Tribunal the applicant was aware that the false information in relation to the student loan had been included on his application for a student visa. On the applicant’s own admission he was anxious to obtain his visa due to the fact that he had previously applied and had been refused and that his course was due to commence. At best it appears that due to the fact that he was aware that neither he or his family had signed any documentation for a student loan,  he had wilfully turned a blind eye to the false information provide in the application for the purposes of achieving an immigration advantage. While the Tribunal accepts that it is common for middle mean or agents to be used in obtaining loans, it does not accept that such loans are agreed and provided by financial institution without the borrower and/or any guarantor being aware of the loan.

6. The applicant states submits that the amount of time that has elapsed since the non-compliance occurred should also be taken into account. He argues that the department was aware of his non-compliance days before his arrival in Australia but did not act until December 2018 after he had been in Australia for over a year. He claims that had the department acted closer to the time of his arrival it would have saved him a lot of time and money spent in Australia on his postgraduate studies. Instead he could have taken admission to a course in India.

7. However, the time and money spent by the applicant and his family are a consequence of him having been provided the visa on the basis of the false information provided to the department in his visa application.  It takes time for the authorities to discover the false information and then to process the cancellation of his visa. In this case the applicant has obtained an immigration advantage by providing false information. Therefore, any costs incurred by the applicant are a necessary cost that flows as a result of the applicant relying on the false information provided in his application for a student visa.

8. Accordingly the tribunal places little weight on this factor in favour of the applicant.

9. The applicant claims it was never his intention to mislead department and that he was not aware that the sanction letter was bogus. However, based on the evidence provide by the applicant, the fact that he was aware that the information had been provided and that he or his family had not executed any loan documents, the Tribunal does not accept that applicant’s evidence and finds that he was aware that the false information had been provided.

10. Finally the applicant submits that that he wants to finish his Masters of Management for Engineers course at Central Queensland University before returning to India to start his career as an engineering manager. He claims that his family have high hopes that he will complete his studies and bring pride to his family. Failure to so will bring great embarrassment to him and his family. The Tribunal accepts that the applicant wants to finish his course and that any failure to do so will be an embarrassment to him. However, any such embarrassment is a consequence of having provided the false information. There is nothing to stop him from applying the subject credits he obtained in Australia toward a similar qualification in India.

11. Accordingly, the tribunal places little weight on this factor in the applicant’s favour.

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

1. The applicant has been co-operative with the Tribunal. The Tribunal is not aware of any adverse behaviour by the applicant toward the department or the Tribunal. Accordingly,  the Tribunal gives a little weight in the applicant favour in this matter.

The time that has elapsed since the non-compliance

1. Approximately two years have now passed since the applicant submitted his application for student visa and provided incorrect answers regarding his finances and the bogus bank loan sanction letter. The applicant has been residing in Australia since September 2017.

2. The applicant submitted that despite knowing the document was bogus days before he arrived in Australia, it has taken the department more than a year to formally present the non-compliance to him. he argues that the department issued the NOICC at a time when he was well advanced into his post graduate studies and had already invested considerable time and money.

3. However, had the applicant not engaged in the behaviour of proving false information for the purposes of obtaining his visa, it’s likely that he would not have been afforded the opportunity he has enjoyed in Australia. The applicant has benefited from the Australian education system which was obtained on false information. As noted previously in these reasons, there is no reason why the applicant will not be able to use the credits he had obtained in Australia for the purposes of continuing his study in India.

4. Accordingly the tribunal gives the applicant little weight in relation to this matter.

Any breaches of the law since the non-compliance

1. The Tribunal is not aware of any breach of the law by the applicant since the non-compliance. As such, the Tribunal gives the applicant some weight in his favour in relation to this matter.

Any contribution made by the holder to the community

1. The applicant has not provided any evidence of any contribution made by him to the community. Accordingly the Tribunal does not give the applicant any weight in regards to this matter.

Any consequential cancellations under s.140

1. The applicant holds a student visa as a dependant and there is no information before the tribunal to suggest that any other person would or may be consequential cancelled in the event that the applicant’s visa is cancelled.

2. Accordingly the tribunal does not place any weight on this matter in the applicant’s favour.

Any international obligations would be breached as a result of the cancellation

1. The applicant is a citizen of India. He has not lodged any subsequent applications for any visa that would require assessment under any relevant international agreements to which Australia is a signatory. There is no evidence before the Tribunal which would indicate that cancellation of his visa would be a breach of Australia international obligations.

2. Accordingly the Tribunal does not give any weight to this matter in favour of the applicant.

Mandatory Consequences to cancelation decision.

1. In the event that the applicant’s visa is cancelled the applicant would become an unlawful non-citizen and liable to be placed in detention under ss.189 of the Act and removal from Australia under s.198 of the At if he does not depart the country voluntarily or apply for a further visa.

2. The applicant may subjected to s48 of the Act and have limited options to apply for further visas in Australia and to the provisions of the Public Interest Criterion 4013, which would prevent him for being granted certain visas for a period of three years for the date of the visa cancellation.

3. These are shared consequences of a visa cancellation outcome and as such the tribunal gives no weight to these matters in the applicants favour.

4. 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

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

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Notice 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.

1. Decision 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.

2. Cancellation 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.