Khan (Migration)

[2022] AATA 3989

Khan (Migration) [2022] AATA 3989 (10 November 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Patan Imram Khan

REPRESENTATIVE:  Mr Muhammad Rafi (MARN: 1700370)

CASE NUMBER:  2203529

HOME AFFAIRS REFERENCE(S):           BCC2021/2361187

MEMBER:  Michael Bradford

DATE OF DECISION:  10 November 2022

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision under review.

Statement made on 10 November 2022 at 1:58pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information and bogus document provided with visa application – course completed and certificate – ground for cancellation disputed – course in question not registered – no other evidence or documentation provided – later enrolled in registered course while purportedly enrolled in course in question – no completed courses – course provider in question later deregistered – discretion to cancel visa – visa and study history – re-enrolment in previously failed course – claim of fraud by agent – relationship difficulties and parents’ health – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 56, 100, 101(b), 103, 107, 109(1), 376

Migration Regulations 1994 (Cth), r 2.41

APPLICATION FOR REVIEW

Introduction

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 (Temporary) (Class TU) visa under Sec 109(1) of the Migration Act 1958 (the Act).

1. The delegate cancelled the visa for non-compliance with Sec 101(b) and Sec 103 of the Act based on the provision of incorrect information and a bogus document in relation to a Diploma of Business (DOB) said to have been completed by the applicant at the Australian Chamber of Education (ACE) in April 2019. The document is a Certificate of Completion for the DOB which he had provided to support an application for a student visa filed on 4 December 2020 (VA). The information is contained in the VA in the section of the form headed “Education History Details” where the applicant stated that he had completed the DOB at ACE during the period from 19 April 2018 to 17 April 2019. The same information is contained in the applicant’s response to an earlier request which the delegate made pursuant to Sec 56 of the Act for evidence from him to confirm that he had been enrolled in the DOB.

1. The delegate found, and the applicant has not disputed, that the information and supporting Certificate led to the grant of the subject visa on 22 March 2021.

1. The visa was cancelled on 8 March 2022 after the applicant had responded to the NOICC on 20 January 2022. In the response the applicant maintained that he had studied for and completed the DOB, that the information which he had provided to the delegate about that course in the VA was not incorrect and that the Certificate was not a bogus document.

1. The Review Application was filed on 12 March 2022 and is within time.

Overview of the statutory provisions, the issues in the review and executive summary

1. Sec 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with Secs 101(b) and/or 103. Broadly speaking these sections require a non-citizen to provide correct information in a visa application and not to provide a bogus document in support of a visa application. Relevantly, a bogus document is defined in Sec 5 of the Act to be a document that the Minister reasonably suspects to be counterfeit or altered by a person who has no authority to do so or was obtained because of a false or misleading statement, whether made knowingly or not. The effect of Sec 100 is similar to paragraph (c) of that definition in that it provides that if information is incorrect, it does not matter whether the person who provided it knew it was incorrect.

1. The exercise of the cancellation power under Sec 109 is conditional on the Minister issuing a valid notice to the applicant under Sec 107 of the Act. A valid notice must contain particulars of the alleged non-compliance. Where a notice is issued that does not meet this requirement the power to cancel a visa does not arise.

1. There is no issue in this case that the NOICC complied with the statutory requirements and was a valid notice. Certainly, there has been no submission in the review to the contrary, and none was made to the delegate.

1. In the review the applicant denies that the delegate was entitled to cancel the visa for non-compliance with Secs 101(b) or 103, he maintains that the Certificate which he provided to the Department in support of his VA was a genuine document and that the information which he provided in the VA, and later in answer to the Sec 56 request about him having completed the DOB, was correct.

1. Thus, the two issues which arise for determination on this review are, firstly, whether there was non-compliance in the way or ways described in the NOICC and, if so, whether the visa should be cancelled.

1. Most of his oral evidence, documentary case and submissions in the review have been directed to the first of those issues but he has also addressed the second issue.

Procedural steps in the review, the documents relied on and the hearing

1. A Hearing Invitation was sent to the applicant’s agent, a Muhammad Rafi from Migration Corp Australia (the agent), on 17 June 2022 for a telephone hearing scheduled to take place on 13 July 2022. In this invitation he was asked to provide any documents on which he proposed to rely by 6 July 2022. The applicant duly accepted the invitation and, in his Hearing Response form dated 24 June 2022, indicated that his agent would be providing a submission and relevant evidence.  

1. On 13 July 2022 at about 12.15 am the agent filed on-line a submission dated 12 July 2020 (sic) together with numerous other documents referred to in the submission. He also filed a Statutory Declaration dated 12 July 2022 from the applicant in which he sought to explain the late provision of this material. The applicant deposed that he was waiting for additional evidence from another student, did not further elaborate but a reading of his other documents suggests he was referring to attachment 11 in the submission which consists of an email from the Australian Skills Quality Authority (ASQA) to a Mr Chouhan concerning his studies at another provider in Perth.

1. I will return to have a look at this evidence later in these reasons but do not regard the explanation for the late provision of the applicant’s documentary case to be at all acceptable. He could and should have provided the bulk of his documentary case in a timely manner. The Tribunal expects requests for timely provision of evidence and submissions to be complied with unless there is a good reason why this cannot be done.

1. The hearing took place on the telephone as scheduled on 13 July 2022. The start was postponed for an hour or so to give me time to read the documents. The applicant participated at the hearing and gave oral evidence. The agent also participated. An interpreter was on another line. As the case occupied about two hours of hearing time it went beyond the allocated 90 minutes. Most of his oral evidence was given in English without apparent difficulty and the agent made some oral submissions during and at the end of his evidence.

1. At the conclusion of the hearing, I reserved my decision and indicated that it would be published as soon as possible. As the agent, in his closing oral submission, had indicated that the applicant had sent an email to ACE in March 2022 on which he wanted to rely I gave him leave to provide it.

1. Later, on 13 July 2022, the agent forwarded to the Tribunal an email which the applicant sent to ACE on 9 March 2022 asking for its contact details as he needed urgent help. In this email he accepts that ACE had ceased to operate but he gave no further indication of what he was seeking. The Tribunal notes that the email was sent very shortly after the delegate had decided to cancel his visa.

An overview of the Tribunal’s approach and summary of its findings in the review

1. Having heard the applicant give oral evidence, having tested it against the objective features of the case and against other aspects of his own account, oral and documentary, such as it is, I am unable to accept his case that he enrolled in the DOB in April 2018, studied the course for about 12 months, completed it on time in April 2019 and received the Certificate together with the undated letter from ACE on 17 April of that year.

2. Apart from the documents which he says were issued by ACE, both of which are contentious, the applicant has provided no other documentary evidence, either to the delegate or in the review, to establish his claim that he was enrolled in that course despite having been invited to provide it in the Sec 56 request and despite the concerns which the delegate expressed about this very aspect of his case in the decision under review. Nor has he provided any explanation for not having done so.

1. As will be seen the evidence he has given about having studied the DOB during the period from April 2018 to April 2019 sits awkwardly with other independent records and is, at least in some respects, incredulous.    

1. Nor do I accept the applicant’s contentions that he is a genuine student who has competently engaged in vocational studies since arriving here in February 2018 and that any interruptions to his academic program were caused by circumstances beyond his control.

1. Leaving aside the DOB, the applicant has been here now for almost 4 years and 9 months without anything to show for it in the way of real academic progress. In his review submission the agent accepts that he has been enrolled in different courses and has not completed any of them, apart from the DOB. He is currently enrolled in an Automotive package at the Lennox Institute having failed to complete courses in that same package earlier this year. I will return to consider his study history and his explanations for it later in these reasons. 

1. I am satisfied on the evidence available that the Certificate is a bogus document; that the information which he provided to the Department in his VA concerning his enrolment and completion of the DOB was incorrect and that the information which he provided in his response to the Sec 56 request about that course was also incorrect; that the Minister, through the delegate, acted reasonably in forming a suspicion that the Certificate is such a document; that the applicant has thus failed to comply with Secs 101(b) and 103 by providing it, and information based on it, to the Department in support of his VA; and that the visa should, as a matter of discretion, be cancelled.

Other documentary aspects

1. In addition to the applicant’s documentary case and his oral evidence the Tribunal has been provided with a physical file from the Department which contains a good deal of documentary material. Although a Sec 376 certificate has been issued it is necessary for the Tribunal, given the nature of the issues, to consider some of this material and, to that end, identify the documents and describe the information in them to the extent to which it is necessary.

2. Before doing so the Tribunal notes that the substance of the information in this material was put to the applicant in the NOICC, in the decision under review and at the hearing in the Tribunal.

1. Apart from the VA the Department’s file includes internal memoranda and communications with the Investigations Unit, the Sec 56 request, the applicant’s response to that request, the NOICC, his response to the NOICC and, of course, the decision under review.

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

The information available to the delegate   

1. The VA was lodged to enable the applicant to study an Automotive package at the Lennox Institute which consisted of 4 vocational courses, namely a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis, a Diploma of Automotive Technology and a Graduate Diploma of Management.

1. It is recited in the NOICC that, on 2 February 2021, the Department sent to the applicant a Sec 56 request for additional information regarding his enrolment in the DOB and his progress in two other courses, namely a Master of Information Technology at UNSW and an Advanced Diploma of Information Technology Project Management (ADITPM) at the Strathfield College.    

1. On 3 March 2021, the applicant’s former Australian agent, Satya Shukla, provided to the Department a statement in which he purported to address that request and which explained why the visa should not be cancelled.

1. Attached to this statement (the Sec 56 response) are various documents including a copy of the Certificate, the undated letter from ACE regarding the applicant’s completion of the DOB, Tax Invoices sent to the applicant by HBD Services (a firm of Educational Consultants situated in Lakemba), for tuition fees incurred by him in two other vocational courses, including a Diploma of Leadership and Management (DLM) at the IBMA Institute, letters from providers regarding his enrolment in other vocational courses, including the ADITPM, and medical records which relate to tests for COVID and other medical procedures carried out in India on his parents during 2020.

1. The Sec 56 response contains a good deal of information about the circumstances in which the applicant is said to have come out to Australia in February 2018 under a TU-500 Student visa to engage in higher level studies. It is not disputed that his initial visa was subject to condition 8202. The applicant says that he was tricked by his agent in India into thinking he was enrolled in a Master of Commerce at the University of NSW and only became aware that he had been enrolled in the Master of Information Technology when he met the agent at the airport on his way to Australia. He says that the agent told him that he would arrange for his admission to the Commerce course once he arrived here but, according to the applicant, the agent told him shortly after his arrival that he could not enroll him in the Commerce course because of a change in admission requirements but would organize enrolment in another course for him. The agent also told the applicant not to contact the University. The applicant says that he refrained from doing so and that, in April 2018, he (the Indian agent) organized his enrolment in the DOB.

1. The PRISMS record confirms that the applicant was initially enrolled in the Information Technology course but it contains no details of the DOB given that it was not a registered CRICOS course. PRISMS also indicates that his enrolment in the IT course was cancelled for non-commencement on 22 March 2018.

1. The Movements Details record confirms that his initial visa, the one granted in early February 2018, was subject to condition 8202 as were his later visas. The applicant must thus be taken to have known that he was required to be enrolled in a registered course of study. Certainly, aspects of his later conduct would suggest that he was aware of this requirement. I do not accept the agent’s submission that he was not.

1. It is also contended in the Sec 56 response that in November 2018 the applicant was informed by unidentified friends that the DOB was not a registered CRICOS course. The applicant says that he contacted HBD Services at this stage who organized his enrolment in the DLM, a course due to start in December of that year.

1. According to the Sec 56 response, because the applicant had been studying the DOB for about 7 months by November 2018, he decided to continue with it.

1. Pausing here for a moment, the problem with that evidence, apart from the fact it has him studying both the DOB and DLM at different providers as from December 2018, is that it is impossible to reconcile with at least some of the independent records. The HBD Tax Invoice of 26 July 2018, a copy of which is attached to the Sec 56 response, reveals that the applicant had taken steps to fund his tuition in the DLM by July 2018. Presumably he would not have been doing that if he had not known at that stage that the DOB was not a registered CRICOS course as there would, in that event, have been no logical reason for him to want to enroll in the DLM at that stage. This is the only inference which can rationally be drawn from an Invoice which records the receipt of monies paid by him on account for his tuition in the DLM in July 2018.  

1. The agent goes on in the Sec 56 response to refer to some relationship issues which the applicant says he was confronting as from early in 2019 which are said to have occasioned interruptions to his study and which ultimately led to his enrolment in the DLM being cancelled in September 2019, shortly after he had returned from a visit to India which had lasted about 2 months. The Movements Details record confirms that he returned to India on two occasions during 2019.

1. The agent says that the applicant completed the DOB on time which, according to the undated letter from ACE, was on 17 April 2019.

1. In the NOICC, after setting out portions of the Sec 56 response, the delegate said that verification checks which the Department conducted with the Office of the Student Identifiers Registrar (USI) revealed that the applicant had not completed any courses at ACE as of 29 September 2021. The delegate relied on this evidence as the basis for the non-compliances with Sec 103 and Sec 101(b) in the ways set out in the NOICC.

1. In his response to the NOICC the applicant’s former Australian agent said he was unable to explain why the USI Transcript contained no details of the applicant’s studies in the DOB apart from suggesting that it may have come about from an administrative or procedural error by ACE, an error which might have been arisen because of inadequate records being kept by it or other negligent failure to register his results in the Transcript. COVID may also have been a factor, it was said. It was also suggested in an email that the applicant’s former agents had been “playing up”. Although it is unclear to me what exactly this last comment was directed to it may have been in reference to earlier education arrangements which are said to have explained how the applicant came to be enrolled in the DOB. The delegate seems to have thought that the comment related to the preparation of the VA. I am not convinced that it did but, in any event, given that the applicant’s review case is that the Certificate is a genuine document and that the information he provided in the VA about his study history was correct, nothing seems to turn on it.

1. The agent reiterates in the NOICC response that the applicant “holds firm” and maintains that he completed the DOB and that he had provided documentary evidence supporting this claim. Given he had provided no other documentary evidence to establish it this must be taken to be a reference to the Certificate and the undated letter from ACE referred to earlier.

1. The applicant’s evidentiary case in response to the NOICC thus consisted entirely of those two documents. Apart from them, there was nothing else, no offer of enrolment from ACE, no written evidence of acceptance, no receipts or other records from ACE evidencing payments for tuition, no correspondence with his former agents, or either of them, confirming his enrolment in the DOB, no correspondence with ACE in relation to his ongoing studies in that course, no written evidence that he completed assignments or otherwise fulfilled course requirements, and no written evidence of any request having been made for the issue of the Certificate, or other evidence to explain how he obtained it. It is true, as the delegate later acknowledged in his decision to cancel the visa, that some of these events occurred as long ago as April 2018 and it was possible that the evidence no longer existed, but there is no evidence led in the review to that effect or that the applicant, or anyone on his behalf, has made any attempt to obtain contemporaneous records of this or any other kind.

1. Despite making no attempt to explain away or otherwise deal with any of these deficiencies, the NOICC response contends that the applicant may have, and was likely to have, completed the DOB, that it was unfair to require him to explain why the USI Transcript made no mention of it, that he was helpless in having to do so in these circumstances and that what happened was beyond his control.

1. It is notable that the NOICC response does not include a copy of the USI Transcript, nor does it otherwise refer to the details recorded in it.

1. The NOICC response does address other matters which are said to support the conclusion that the visa should not be cancelled but these will be considered later in connection with the discretionary aspects.

The first issue; has there been non-compliance with Sec 103 and/or Sec 101(b) in the ways articulated in the NOICC?

1. As to the issue of whether there was non-compliance it is of course necessary in this case for the Tribunal to consider, in addition to the evidence which the delegate had, the reasons given by him for his findings on this issue and the evidence which the applicant has given on the review relating to it.

2. In the decision (NOC) the delegate noted that the applicant had disputed the non-compliance and he set out the applicant’s reasons for so doing. Having done that he refers to the USI check results which were communicated to the Department on 29 September 2021 which showed that the applicant had not completed any units in the DOB at ACE and had not obtained that or any other qualification from ACE as at that date.

1. As to the suggestion that COVID may have been a factor in ACE failing to up-date the USI record the delegate rightly noted that the end date of the course, which according to the Certificate was 17 April 2019, was about 12 months prior to the onset of COVID in Australia.

1. The delegate went on to observe that the applicant had not provided any other evidence or documentation to support his claim that he had completed the DOB and that, in the absence of other evidence on which to suggest that the USI Transcript was incomplete, he did not accept that the applicant had in fact completed the course.

1. Pausing here again, the USI Transcript does not mention the ADITPM but, absent any evidence from the applicant to the effect that he made any progress in this course, I do not regard this omission to indicate that the Transcript in this instance is incomplete or otherwise unreliable.

1. As noted earlier, the Sec 56 request had sought information on, among other things, his progress in the ADITPM but his only response to this request was to provide the delegate with a letter from the College dated 11 March 2020 which merely confirmed that he was still enrolled in it as of that date and a submission was made that he “started that course with a focus on its completion on time”. These rather glib responses did not deal with the substance of the request. According to the letter, the course commenced on 7 October 2019 at a time when the applicant was struggling with the personal issues mentioned earlier. Moreover, as I will later mention, his enrolment in this course was cancelled in September 2020 for unsatisfactory progress.

1. In these circumstances it seems clear enough that the applicant had made no progress in the ADITPM, if indeed he engaged with the course at all, a fact which would explain why the USI Transcript makes no mention of it.

1. As the applicant had informed the Department in the VA that he had completed the DOB, and as he was responsible for that answer whether given by him or an agent, the delegate found that he had failed to comply with Sec 101(b). Further, as the Certificate which he or his agent had provided as supporting evidence had not been issued by ACE, the delegate also found that it was a bogus document in breach of Sec 103.

1. As has already been noted, shortly before the hearing in the Tribunal the applicant filed a submission from the agent and numerous supporting documents.

1. Curiously, the submission begins with the contention that the applicant is a victim of fraud and that his “non-compliance of visa condition”, which in context can only be a reference to condition 8202 as it applied to the cancelled visa, was due to exceptional circumstances beyond his control.

1. The submission goes on to reiterate what the applicant told the delegate in answer to the Sec 56 request as to how he came to be enrolled in the DOB, what led to his later enrolment in the DLM and why he elected to continue with his studies in the DOB after being advised by “someone” (not identified) that it was not a registered CRICOS course. Attached to the submission are 13 documents, mostly academic records including a copy of the Certificate, the undated letter from ACE regarding his completion of that course, a USI Transcript of his studies generated, apparently at the request of the applicant on 24 June 2022, and an RTO Report on ACE also generated at his request on that date.

1. The HBD Services invoices, copies of which were attached to the applicant’s answer to the Sec 56 request, are not among the documents attached to the submission, nor do any of the submissions address these records.

1. The USI Transcript contains details of the applicant’s studies in various other vocational courses including the DLM at IBMA but, as is noted by the delegate, it does not mention the DOB.

1. The RTO Report reveals that ACE was a privately operated Registered Training Organization (RTO) as from 6 July 2016 and that the DOB (BSB50215) was a course which it offered in Sydney as from 31 August 2016. It also indicates that ACE was de-registered by the Australian Skills Quality Authority (ASQA) on 25 June 2019.

1. The submission states that HBD Services lodged the VA without notice to the applicant. Apart from the fact that the applicant has provided no evidence to support it, this contention is impossible to reconcile with the VA itself which identifies the migration agent who acted for the applicant at that stage to be Muhammad Rafi from Migration Corp Australia. His contact details also appear at the foot of each page of the VA.

1. Attachment 11 to the submission, which is the email from ASQA to Chouhan, relevantly states that a search of his records indicated that the provider in that case, the Perth Education Group, had not submitted VET student records to ASQA since its closure and that this did not imply that he had not undertaken educational training with that Group. This email does nothing more than confirm what logic would suggest, namely that once a provider ceases to operate because of a forced closure it cannot ordinarily be expected to provide VET records to ASQA. But there is no suggestion in this email that the Group was not updating its VET records prior to its closure, nor is there any suggestion that it would not have been submitting them to USI for registration prior to closure.

1. In this case, if the applicant had completed the DOB on 17 April 2019, as he contends, ACE had ample time prior to its closure on 25 June of that year in which to register the applicant’s studies in that course in the USI Transcript. Moreover, if he received the Certificate on the date it bears, as he also contends, there is no apparent reason why ACE would not have registered those details in that Transcript on or about that date or, failing that, at any later time prior to its closure.

1. If it has any relevance to this case, and about that I entertain some considerable doubt, I do not regard the ASQA email to establish that ACE could not have been expected to register, or cause to be registered, the details for the DOB in the USI Transcript prior to its forced closure if the applicant had in fact completed that course and received the Certificate when he says he did.

1. In his oral evidence the applicant said that he went to ACE on the advice of his Indian agent to enroll in the DOB and that he completed an enrolment form for that purpose. He denied having paid ACE any money for his tuition in that course. He said that he had paid the Indian agent $16,000 in cash to arrange his enrolment in the Master of Commerce before he arrived here and, when that did not eventuate, the agent used some of those funds to enroll him in the DOB.

1. The applicant produced no records to sustain any of these claims. He said he never received any emails from the agent, that he attended classes in the DOB two days each week and that his entire learning in this course was face to face, a proposition which is hard to reconcile with the undated letter from ACE which refers to the DOB as (in part) a blended course. He denied having received any academic progress reports or other correspondence from ACE during the 12 months it took him to complete the course.

1. When asked at the hearing how he came into possession of the Certificate he said ACE invited him to go into the Lakemba office to collect it which he did on 17 April 2019, the date on which the Certificate was issued and, according to the undated letter from ACE, the date on which the course was completed. He did not explain why it was necessary for him to go to the ACE office to do that. He did not indicate, in his oral evidence or otherwise, how he came into possession of the undated letter.

1. To assert, as the applicant does, that he enrolled in and studied the DOB at ACE for about 12 months, that he was progressively assessed by ACE during that period as competent in the 8 units which comprised the course, that he received the Certificate, and presumably the undated letter, from ACE on 17 April 2019, which (according to these documents) is the date on which he completed the course, without there being any other documentary record of him doing any of these things, is incredulous.

1. Moreover, there are aspects of his account as to why he became enrolled in the DOB which I find quite impossible to reconcile with the objective features which ultimately undermines his evidence on these critical aspects.

1. On his own case the reason he became enrolled in the DLM was because he found out that the DOB was not a registered CRICOS course. Whilst I have no difficulty accepting that he enrolled in the DLM on 19 November 2018, as this is the date on which the COE for that course was generated, I cannot accept that he did not know that he was enrolled in a non-registered CRICOS course well before then. I need go no further than the HBD Services invoice of 26 July 2018 which suggests, quite strongly, that he must have been aware of the status of the DOB at that stage, if not earlier. As he had been studying the DOB for only a few months at the most by July 2018 his explanation for wanting to continue with it falls away.

1. The fact that he did not address the July HBD Services invoice or any of the other invoices in his review case serves only to reinforce my concerns on this aspect of his evidence.

1. The other concern I have about this aspect of his case is that, if he enrolled in the DLM because the DOB was not a registered CRICOS course, he has not satisfactorily explained why he did not complete his studies in the DLM, which was a CRICOS course. I do not accept his assertion that he was incapable of continuing with his studies in that course because of depression arising, he said, from relationship issues which he had been trying to resolve whilst in India during the period from July 2019 to September 2019. Whilst I accept that he was in India during that period, absent any medical evidence to support his assertion that he was suffering from a depressive condition, I am not prepared to find that he was let alone that he was incapable of completing the DLM because of it.

1. Apart from the 9 March 2022 email, there is no evidence from the applicant to the effect that he has made any meaningful and timely attempt to obtain any other records from ACE which could have assisted his case. It is by no means clear to me what he was seeking to achieve by this email. If it was an attempt to obtain other documentary evidence from ACE to reinforce his review case, about which I can express no view on the evidence he has led, he has not explained why he has been unable to find any corroborative material in his own records.       

1. Having examined as best I can the Certificate and undated letter from ACE, absent expert evidence in the applicant’s case to confirm these are documents which ACE more probably than not issued to him on or about 17 April 2019, the Tribunal is not prepared to accept his uncorroborated evidence that they are.

1. It is very unusual, in the Tribunal’s experience, for an RTO provider such as ACE to issue a Certificate of Completion on the date on which the course is said to have been completed. Ordinarily, indeed invariably, there is some delay before a Certificate will issue the extent of which will obviously depend on the circumstances. There is in this case no suggestion on the evidence there was any urgency on the applicant’s part to obtain the Certificate still less any need for ACE to issue it immediately.

1. Quite apart from that, the undated letter has questionable attributes which a forensic document examiner might usefully have given expert evidence about, among them being the irregular positioning of the signature.

1. I am satisfied in these circumstances that the Minister has acted reasonably in forming a suspicion that the Certificate is a bogus document and that the information which the applicant provided in the VA about him having completed the DOB is incorrect.

1. For those reasons I am also satisfied there has been non-compliance with Sec 103 and Sec 101(b) in the ways described in the NOICC, as amplified in the decision under review.

The second issue; should the visa be cancelled?

1. Having found non-compliance with Sec 103 and Sec 101(b) it is necessary for the Tribunal to consider whether the visa should be cancelled under Sec 109(1) of the Act.

2. Although cancellation under Sec 109 is ultimately a discretionary matter for the Tribunal in exercising the power to cancel the visa under Sec 109(1) the Tribunal should consider the matters referred to in Sec 109(1)(b) and (c) insofar as these are relevant to this case together with any other matters which come into play including those set out in the Department’s Procedural Advice Manual (PAM3). Thus, the matters referred to in Regulation 2.41 should be considered together with any other matters such as the consequences of cancellation, international obligations and so on.

1. Among the applicant’s documents is a Provisional Certificate of Completion from the Osmania University for a Bachelor of Commerce (Computers) issued to him on 31 May 2017. Having completed this course I accept that he has a demonstrated higher level academic history in India.

1. As noted earlier, in the submission the agent contends that the applicant is the victim of fraud. This is a serious claim to make against another agent who cannot defend it and which ordinarily requires convincing proof to sustain it. It may be that the Tribunal can relax these requirements in appropriate cases but the evidence which has been led in this case to support it is flimsy and is, at least in part, implausible.

1. On his own case the applicant came out to Australia having paid the agent in India a sum equivalent to $16,000 AUD in cash knowing full well that he had been enrolled in a Master of Information Technology at UNSW rather than a Master of Commerce. I accept he never wanted to engage in higher level studies in IT, a fact which explains why his enrolment in this course was cancelled by UNSW for non-commencement shortly after he arrived here, but these circumstances fall well short of establishing a case that the applicant was defrauded by his agent in India.

1. According to the submission, the agent told him that he would take steps to enroll him in the Master of Commerce once he arrived and it may be that he was told something along these lines but, on any view of the evidence, this obviously did not eventuate. Instead, according to the applicant’s oral evidence, the agent advised him to enroll in the DOB and this, he says, he did by going to the Lakemba office of ACE to fill out an enrolment form in or about April 2018.

1. Absent any corroborative documentary material, I do not accept the applicant’s oral evidence that the agent told him to enroll in the DOB, nor do I accept that he did so. On his own case, he had every reason to be highly skeptical of an agent who on his own account had tricked him into thinking he would be enrolled in the Commerce course, who had extracted from him a large sum of cash by giving him false hopes that he would be, and who did not want him making his own enquiries with the UNSW to confirm or refute the agent’s explanation as to why his enrolment in that course could not be arranged.

1. In any event, even if the agent in India did tell the applicant to enroll in the DOB, I do not accept, absent any corroborative documentary record, that he paid the applicant’s tuition fees for that course.

1. The applicant does not dispute that his enrolment in the DLM at IBMA was cancelled for non-payment of fees in September 2019 after some 9 months of study. The USI Transcript, a document which the applicant provided in support of his review case, reveals that he was assessed as competent in 5 units of the DLM during that period.

1. In his oral evidence the applicant accepted what his submission does not make clear, namely that his enrolment in the ADITPM was ultimately cancelled in September 2020 for unsatisfactory course progress. According to the COE this course had commenced in October 2019, a start date which the letter from the Strathfield College confirms.

1. I do not accept the applicant’s contention, absent satisfactory medical evidence, that his studies in the DLM came to an end because of a depressive condition brought on by his relationship issues in India. Nor do I accept his contention that his studies in the ADITPM came to an end because his parents contracted COVID during July 2020. There is no acceptable medical evidence in this case to sustain either of these claims.

1. I have no difficulty accepting that his father contracted COVID, and that his mother had medical issues not dissimilar to those who have suffered from COVID. The hospital records reveal as much. I also accept that the medical condition of his parents would have been a worry to him and that he was probably under stress during 2020 because of it. But the evidence falls well short of establishing that he was incapable of productive study in these courses because of these things.

1. Although the applicant was enrolled in the Automotive package at the Lennox Institute at the time he filed the VA in December 2020, and although the USI Transcript indicates that he made some progress in the CIII during the period from September 2020 to April 2021, his enrolments in this package were cancelled in May 2022 when he ceased studies in the CIII.

1. He has given to the Tribunal no reasonable explanation for not having continued with his studies in the CIII and, indeed, this took place in circumstances where his father apparently wanted him to engage fully with these courses for business reasons. I have seen a letter from his father dated 20 November 2020 which is broadly along these lines. His father says that he has been operating an automotive workshop in Hyderabad for 5 years and that he wanted the applicant to join him in the business once he completes his studies. Of course, that was 2 years ago, there is no up-dating evidence from his father to this effect nor is there any unequivocal submission to the effect that joining him in this business remains the applicant’s plan.

1. The applicant has more recently, on 6 July of this year, re-enrolled in two of the Automotive courses in which he was previously enrolled at Lennox, namely the CIII and CIV courses which, according to the COEs, have a combined duration of 18 months. There is at least a distinct prospect that he could complete the CIII early given his previous progress in this course. But he has given no unequivocal evidence as to what his intentions are if he were able to complete these courses.

1. His agent has made a submission to the effect that the applicant will go back to India to help his father expand the family business, but I am not convinced that he will. His recent and unexplained decision to cease studies in the earlier Automotive package at Lennox is a concern. The Tribunal can readily understand why he wanted to change academic direction when he applied for the subject visa towards the end of 2020 given his father’s plea for help but his decisions to discontinue his Automotive studies in May of this year and then re-enroll in much the same package about 7 days prior to the hearing are very troubling aspects of his case.

1. I do regard his belated re-enrolment in the Automotive package at Lennox to have been motivated by his forensic interests rather than anything else.

1. The Tribunal accepts that the applicant is a capable student and that he has ability to complete his current educational pathway without any real difficulty. But the fact remains that he has not, by any reasonable standards, demonstrated a willingness to get on with it, complete his education here and return to India. If he had wanted to go down this path since late 2020, that is complete his automotive studies and return to India to take the business to another level, as his agent submits, he would do, he would have gone about his studies in this field very differently to what in fact he has done.

1. I cannot therefore accept his agent’s submission that the applicant is a genuine student who has been unable to continue with his normal studies because of circumstances beyond his control. The evidence which the applicant has given in this review does not support these contentions.    

1. Little is known about the applicant’s broader circumstances here. In the response to the NOICC his former agent says that he was employed as a delivery driver, and there is a letter dated 18 January 2022 from his employer to this effect, but I do not know anything about his employment history and whether he is currently employed and, if so, whether his work commitments may have contributed to his unsatisfactory academic progress.

1. The Tribunal accepts that cancellation of the applicant’s visa will occasion disappointed familial expectations, particularly those of his father for the reasons already given. I take these into account and give them some weight in the applicant’s case but, as I have already indicated, his plan is by no means clear to me given his overall conduct and, in any event, what he might or might not do in the future is not something which can out-flank the other more influential factors which come into play at the discretionary stage.

1. I accept that the applicant will also be disappointed in having to return home to India without a vocational qualification which would have enabled him to add value to the family business, if this is in fact what he now wants to do. His agent submits that cancellation of the visa would be “a tragic end to his dream” and would bring “shame to” his family but these are more in the nature of hyperbole than a realistic and measured pitch. Quite apart from that, absent any evidence to support these propositions, I am quite unable to accept that the cancellation of his visa will have these consequences. The applicant is not an uneducated young man and has not suggested that Automotive courses are not available in India, should he want to undertake them, nor have any members of his family come forward to give evidence that they would be embarrassed or otherwise compromised at a personal level in the event of cancellation.

1. There do not appear to be any other relevant matters about which evidence has been given or which otherwise require specific consideration. Certainly, the applicant has made no submissions on them.

Summary and conclusion

1. Having found the relevant non-compliances, after considering his overall circumstances and after having given due weight to the relevant discretionary matters, the Tribunal concludes that his student TU-500 visa should be cancelled.

   DECISION

1. The Tribunal thus affirms the decision under review.

Michael Bradford Member