KHAN (Migration)

KHAN (Migration) [2024] AATA 2209 (17 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Basalath Rizwan Khan
Ms Syeda Mona Fatima
Master Adam Basalath Khan
Master Jibril Basalath Khan
REPRESENTATIVE:  Mr Mohammad Shahadat Hossain (MARN: 1799395)
CASE NUMBER:  2307609
HOME AFFAIRS REFERENCE:               BCC2021/2200726
MEMBER:David McCulloch
DATE:17 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 500 (Student) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 17 June 2024 at 4:04pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus documents – incorrect information in the visa application – university certificates – educational history – actions of previous education agent – courses cancelled in Australia – poor study progress – health issues of the children – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 359
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs dated 31 May 2023 to cancel the first named applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in a visa application, breaching s 101(b) of the Act and producing bogus documents, breaching s 103 of the Act. The issue in the present case is whether the grounds for cancellation were made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants. This was put to the applicant in the hearing and he did not take issue with this view of the Tribunal as to the jurisdiction in relation to the other applicants.
The applicant appeared before the Tribunal on 3 June 2024 at 9.30am to give evidence and present arguments. The Tribunal hearing was held by video using Microsoft Teams.
The applicants were represented in relation to the review. The representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) and s 103. The s 107 notice advised relevantly as follows:
Sections of Subdivision C of the Migration Act 1958 (hereinafter referred to as ‘the Act’) with which it is considered the visa holder has not complied:
Section 101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are given or provided.
Section 103 Bogus documents not to be given etc.
A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.
For the purposes of Subdivision C of the Act ‘bogus document’ is defined at section 5 of the Act as follows:
Section 5 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.
In relation to the above sections, I note the application of sections 98, 99 and 100 of the Act, which state:
Section 98 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.
Section 99 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.
Section 100 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.
Section 107A of Subdivision C provides that failure to comply with section 101(b) and section 103 of the Act in connection with a previous visa application may be grounds for cancellation of the visa holder’s current visa. Therefore providing incorrect information in the application for their Student (Higher Education Sector) (subclass 573) visa granted on 20 July 2015 (hereinafter referred to as ‘first Student visa’), may result in their Student (subclass 500) visa (hereinafter referred to as ‘current Student visa’) granted on 24 August 2020 being liable for cancellation. Section 107A states:
Section 107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
Information provided in the visa holder’s visa application
On 9 July 2015, the visa holder lodged an application for a Student visa. In association with this application, they completed Form 157A – ‘Application for a student visa’.
On page nine of the application form, under the heading ‘Student details’, the visa holder provided the following information (in bold):
30.Provide details of your highest qualification obtained outside Australia, as well as all other studies and training obtained outside Australia.
Highest qualification   Bachelor of Commerce
Name of education provider or training body     Osamia University
Address of education provider of training body    Hyderabad, India
Commencement date   -/07/2010
Finish date   07/06/2013
Documentation attached?   Yes
On page 28 of the application form, under the heading ‘DECLARATION’, the visa holder signed the declaration that contained the following statements:
‘I declare that:
·the information I have supplied in this application is complete, correct and up-to-date in every detail.
·If documents are found to be fraudulent or information to be incorrect after the grant of the visa, the visa may subsequently be cancelled.’
In support of their application, the visa holder uploaded a copy of the following documents to support their claimed education history:
·Consolidated Marks Memorandum, issued by Osmania University, date of issue 7 June 2013, Ref No. 9121, issued in the name BASALATH Rizwan Khan, Roll No. 2014-09-402015, Examination: B.Com.
·Provisional Certificate, issued by Osmania University, date of issue 7 June 2013, Ref No.9154, issued in the name BASALATH Rizwan Khan, Roll No. 2014-09-402015, Bachelor of Commerce
Based on the above information, as well as meeting other relevant criteria, the visa holder was granted the first Student visa on 20 July 2015.
In addition, the visa holder lodged applications for further Student visas on 30 September 2017 and 22 June 2020. In these applications, they stated their highest level of schooling completed outside Australia was a Bachelor of Commerce from Osmania University.
Based on this information, as well as meeting all relevant criteria, the visa holder was subsequently granted the respective Student visas on 20 December 2018 and 24 August 2020.
Subsequent information received by the Department
On 5 July 2022, the Department received information from the Controller of Examinations, Osmania University advising that the certificates relating to the visa holder’s study for a Bachelor of Commerce are fake.
Non-compliance with section 101(b)
I consider that the visa holder provided incorrect answers in their application for the first Student visa when they:
·provided details of their highest qualification obtained outside Australia on page nine of the application form.
·declared ‘the information I have supplied in this application is complete correct and up-to date in every detail’, by signing the part of the form under the heading ‘DECLARATION’.
I consider this information is incorrect because verification checks undertaken by the Department have concluded that the visa holder’s education qualification from Osmania University is fake. I consider the visa holder did not complete a Bachelor of Commerce at Osmania University as stated in their Student visa application, and they provided a false declaration by declaring they provided complete, correct and up-to-date information in every detail on the application form.
Non-compliance with section 103
I consider that the visa holder has not complied with section 103 of the Act because in their first Student visa application, they submitted the following bogus documents (hereinafter referred together as ‘bogus educational documents’):
·Consolidated Marks Memorandum, issued by Osmania University, date of issue 7 June 2013, Ref No. 9121, issued in the name BASALATH Rizwan Khan, Roll No. 2014-09- 402015, Examination B.Com.
·Provisional Certificate, issued by Osmania University, date of issue 7 June 2013, Ref No.9154, issued in the name BASALATH Rizwan Khan, Roll No. 2014-09-402015, Bachelor of Commerce.
I consider these are bogus document(s), within the meaning provided by paragraph (b) of section 5(1) of the Act, which states:
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
On 5 July 2022, the Department received confirmation that the visa holder’s education qualification from Osmania University is fake. I therefore consider the document is counterfeit or has been altered by a person who does not have authority to do so, as it was not genuinely issued in respect of their claimed education history.
Based on the above information, I consider that the visa holder provided incorrect answers and submitted bogus documents in the first Student visa application lodged 9 July 2015. I also consider the visa holder continued to provide incorrect answers in their Student visa applications lodged 30 September 2017 and 22 June 2020. I therefore, consider that the visa holder has not complied with sections 101(b) and 103 of the Act, and accordingly their current Student visa may be cancelled under section 109 of the Act, relying on the provisions of s107A of the Act.
The applicant responded to the s 107 notice conceding that incorrect information had been provided in the visa applications as to the applicant’s education and that a bogus educational document had been provided in relation to the first application. The applicant indicates that this was a shock to him and had been undertaken without his knowledge by the agent.
Under the terms of the Act the lack of knowledge as to the incorrect information or the provision of a bogus document is not relevant in determining whether the ground for cancellation is made out.
In the hearing, the applicant acknowledged the provision of incorrect information in relation to the three visa applications and the provision of bogus documents in relation to the first application.
The Tribunal finds that incorrect information has been provided pursuant to s 101(b) and bogus documents have been provided pursuant to s 103 of the Act. Thus, the ground for cancellation is made out. The applicant’s claimed lack of knowledge as to the incorrect information and the provision of a bogus document is relevant to the discretion as to whether the visa ought to be cancelled, as canvassed below.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) and s 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations1994 (Cth). 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.
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose; whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.
The key discretionary factor claimed by the applicant is the circumstances in which the non-compliance occurred.
In response to the s 107 notice the applicant acknowledges that he never studied a Bachelor’s degree in India. He indicates his agent provided the wrong information and documentation. The applicant indicates that he was totally unaware of this. The applicant indicates that he completed Grade 12 in India. The applicant indicates that contrary to advice from his parents to undertake further study he moved to the United Arab Emirates to earn money. He worked there for two years and realised there was little growth for him there. The applicant then turned his mind to further study. The applicant’s father approached an agent in his hometown and eventually found a consultancy called Pegasus Solutions who assured the applicant’s father he would complete the process for the applicant for an Australian visa. This occurred when the applicant was still in the United Arab Emirates. The applicant’s father was the only person who dealt with the agent. The agent informed the applicant’s father he was proceeding with the application based on the applicant having completed Grade 12 and relevant documents were provided to the agent. There was never any contemplation that the agent would provide false educational documents.
The applicant’s father is uneducated and made an agreement with the agent stating that the agent is responsible for the visa processing including information and documentation that he is providing to Australian immigration. This provides proof for the applicant to defend himself.
In terms of the signature on the application form it is indicated that it must have been the agent who signed on the applicant’s behalf. The applicant indicates that on return to India his agent handed over an envelope with the visa application. The applicant just followed the agent’s instructions and submitted the envelope at the counter and paid the fees without knowing what was in the envelope. Some days later the applicant received his visa.
The applicant agrees that in the two subsequent student visa applications incorrect information was again provided concerning educational history. The applicant indicates that his agent guided him throughout the years and lodged these visa applications for the applicant. The applicant believed in the agent and was unaware that fake documents were being provided.

The applicant indicates that after receiving the notice of intention to cancel, he contacted the agent but he had left the country for good the previous year. Back in India, the applicant’s father tried reaching the agent but was not able to contact him. They have hired a lawyer and filed the case about the unlawful action of the agent.
Provided is an Affidavit of Agreement between the father of the applicant and owner of Pegasus Solutions dated 1 November 2014 indicating that the owner is validating that the content of the information being submitted on behalf of the applicant is true and correct. He declares that the documentation he will be providing is genuine and authentic and he will be responsible for the process. It is charging ₹1,500,000 for the process.
Provided also is an Affidavit of Declaration dated 21 February 2023 from a lawyer of the High Court, Hyderabad referring to potential legal action against the owner for providing documentation that is not genuine and authentic. The matter has been taken to court and awaited is a hearing from the court which will occur in the next few weeks. Upon investigation of the owner he will be found guilty and punished for the crime he has done.
In the hearing, the applicant confirmed that his current and previous email address from his time is a particular address containing the applicant’s full name. The Tribunal noted to the applicant that this is the email address indicated for correspondence in the 2015 application. That application also indicates that there was no assistance with the form. The form also has the signature of the applicant. This is all inconsistent with the contention that there was the involvement of any third-party preparation for submission of the form.
The Tribunal also noted the email address was also the address for correspondence on the two visa applications submitted in Australia which again is inconsistent with the contention that they were prepared by and submitted by a person on the applicant’s behalf without his knowledge as to their contents. In fact, the bottom of the first page of each of the applications provides information generated by the Department indicating that the form was lodged from the applicant’s email address as a self-registered user.
The following were the various responses of the applicant to this information. The applicant indicated that he did in fact sign the 2015 application but later returned to the agent who handed him an envelope of which he was not aware of the contents which is what he handed in in making the application for the visa. The Tribunal noted to the applicant that the concession that he signed the 2015 application is different to his written explanation in response to the s 107 notice that the agent must have forged the signature. The applicant maintained that he did sign the application but two weeks before the envelope was given to him by the agent, of which specific contents he was not aware.
Significantly adverse to the applicant in terms of his credibility is the inconsistent evidence as to whether or not the applicant did himself sign the 2015 visa application.
In relation to the applicant’s personal email address being the relevant address for correspondence in the two visa applications made in Australia, the applicant indicated that these visa applications were principally handled by an Australian associate of the agent in India to whom the applicant provided his email address and it was this individual who lodged the respective applications without knowledge by the applicant as to specific contents but with that individual clearly copying and pasting the incorrect information as to the applicant’s educational history without the applicant’s consent.
The Tribunal put to the applicant that it had very significant credibility issues as to him not being aware of the provision of bogus documents in relation to the 2015 application and incorrect information as to education history in all three visa applications for the reasons discussed above. The applicant maintained variously in the hearing that he was not made aware of the relevant untrue information and bogus documents in any application and reiterated that there was just cutting and pasting of incorrect information with none of the details of the information in any of the three applications being seen by him.
In all of the circumstances discussed, the Tribunal is not satisfied of this.
In making this finding, the Tribunal has taken into account the purported agreement by the applicant’s father with the agent dated 1 November 2014 indicating that the agent is validating the content of the information being submitted on behalf of the applicant is true and correct. The Tribunal questioned the applicant as to the plausibility of the agent signing such an agreement and then providing incorrect information and fraudulent documents without the applicant’s consent. The Tribunal put to the applicant that in all the circumstances it was concerned that the agreement was implausible and not genuine and had been concocted to provide a defence to the provision of the incorrect information and bogus documents. The applicant maintained that his father entered into this agreement and the genuineness of the agreement.
The Tribunal is not satisfied in the circumstances of all the evidence that the agreement is genuine. It is implausible that the agent in the circumstances would have entered into such an agreement and then provided incorrect information and bogus documents or that the applicant’s father who is claimed to have been uneducated would have had the foresight and acumen to enter into such an agreement.
The applicant in the hearing indicated that the agent is now in India, that he has been located and that legal proceedings have been initiated against him. It is also indicated that police have been involved in relation to him on behalf of the applicant.
The Tribunal gave the applicant a period after the hearing to provide further (more recent) documentary evidence of this, which the applicant agreed that he would do.
No response was provided in the timeframe given or thereafter. In the absence of evidence, the Tribunal is not satisfied that legal proceedings against the agent have progressed beyond what was provided in February 2023 or that police have been involved. The Tribunal has doubts as to the genuineness of the lawyer’s statement of February 2023.
The Tribunal considering all of the evidence is readily satisfied that the applicant was aware in each of the three visa applications that incorrect information had been provided as to his educational history and that bogus documents were provided as part of the 2015 application. The Tribunal is not satisfied that the documents and information were provided without the applicant’s knowledge by a bogus agent.
Thus, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control which justify or explain the provision of the bogus documents and incorrect information in the three visa applications.
The correct information would not have included in relation to the three visa applications that the applicant had a Bachelor’s degree from India. There would be no genuine document establishing this. The decision to grant the three visas would have been based at least in part on the claims of the applicant holding a Bachelor’s degree from India.
In terms of the present circumstances of the applicant, as indicated above, since 2020 he has operated as an unregistered agent providing assistance to foreign students in applying for education courses in Australia. He is in Australia with his Indian citizen wife and two children who were born here.
Relevant is the applicant’s study history in Australia.
The Tribunal wrote to the applicant requesting that he provide it with evidence of all registered courses he has completed in Australia since 2015. In relation to courses commenced but not completed, it was requested that transcripts be provided to indicate evidence of units passed in relevant courses.
In response the applicant provided a certificate dated 22 May 2020 of having completed an Advanced Diploma of Banking Services Management. Also provided is a transcript showing two units studied in 2022 and one unit in 2023 with the result of ‘competent’ as part of a Graduate Diploma of Management (Learning). A letter from the education provider of this course dated 26 May 2024 is provided indicating that the applicant was enrolled in this course which started on 18 July 2022. It indicates that the applicant’s Confirmation of Enrolment was cancelled on 1 June 2023 following which the applicant discontinued his studies.
In the hearing, the applicant agreed that this is a comprehensive account of registered courses completed and passed in Australia together with units passed in courses undertaken but not completed in Australia.
The Tribunal noted to the applicant that it has been almost eight years from him entering Australia on the student visa until his final visa was cancelled and he had been studying in Australia. The Tribunal noted that the applicant had passed one course of a length of a year and a half and otherwise passed three units in a course undertaken but not completed. The Tribunal put to the applicant that this was very poor study progress in Australia over an eight-year period. The applicant acknowledged this.
The Tribunal put to the applicant that this poor study history could be an adverse discretionary factor for the Tribunal in considering whether to exercise its discretion to cancel the visa. The applicant agreed with this.
The Tribunal draws adverse inference from the applicant’s poor record of successful study in Australia.
The Tribunal asked the applicant as to his intentions if the visa is reinstated. In response, the applicant indicated that he would wish to continue with and complete the Graduate Diploma of Management (Learning).
Albeit that the applicant has a poor study history, the Tribunal is prepared to accept that the applicant has a genuine desire to complete his Graduate Diploma of Management (Learning) and it would be a hardship to him if he is not able to do this.
The Tribunal asked the applicant as to compelling reasons to need to remain in Australia or the hardship that would be faced if the visa remains cancelled.
In response, the applicant initially indicated that it would be all right for him to return to India, but not for his family. He referred to the fact that his family in India do not approve of his wife. The applicant referred to the difficulties that will be faced by his two children who are approximately 18 months and five years old in terms of having to return to India and reintegrate in the new culture with a different language.
The applicant referred to his oldest child having eczema which difficulties would be compounded by poor pollution in India. The applicant referred to the other child suffering an accident causing a head injury.
The Tribunal put to the applicant that while it might accept some integration difficulties for his two children returning to India, they were young and would have ultimately the ability to adapt to the country of origin of the parents. The applicant maintained they would not have the ability to reintegrate.
The Tribunal is not satisfied of this given the age of the children.
The Tribunal is prepared to accept that the eczema condition suffered by the older child might be exacerbated by increased pollution levels in India. This is given some weight against exercising the discretion to cancel the visa.
The applicant indicated that there are no other children in Australia whose interests are affected.
The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of an inability to apply for many other Australian visas as a result.
In terms of relevant discretionary factors associated with hardship, the Tribunal asked the applicant if it is feared that he or his family face serious or significant harm on return to India. It took some time in the hearing for the applicant to understand what was being asked in terms of whether it is claimed that he or his family might suffer harm that will entitle them to a protection visa. Ultimately, in response the applicant stated that it is being claimed that harm would be faced in this respect. The Tribunal asked the applicant if consideration had ever previously been given to the need for a protection visa for either himself or his family. The applicant indicated that he had not thought of this before but was now an issue that would be considered.
The Tribunal is not satisfied given the various credibility issues identified in this decision that the applicant or his family face a real chance of serious and significant harm on return to India. The Tribunal considers that the ultimate claim in the hearing that he and his family would face requisite harm was untruthful overreach by the applicant consistent with multiple untruthful claims made by the applicant as part of the history of this application. The Tribunal notes for instance, that the applicant in the hearing initially indicated it would be all right for him rather than his family to return to India. At this point in the hearing, the applicant made no claim that he faced serious or significant harm on return to India relevant for protection purposes which is significantly undermining as to his later claim that such harm would be faced.
The last instance of non-compliance occurred in June 2020 therefore approximately four years has passed since. This is not overly relevant in the exercise of the Tribunal’s discretion.
The Tribunal has no evidence of any other instances of non-compliance by the applicant. The Tribunal does not have evidence of other breaches of law by the applicant.
In terms of contribution of the applicant to the community the Tribunal refers to donations being made to various causes. The Tribunal is prepared to accept that the applicant donates money.
The Tribunal put to the applicant at the hearing that on the Departmental file is a non-disclosure certificate issued pursuant to s 375A of the Act preventing the disclosure of certain information on the Departmental file. The disclosure of information is indicated to be contrary to the public interest because it:
· Discloses or enables a person to ascertain the existence of or identity of, a confidential source of information
· discloses lawful methods for preventing, detecting and investigating breaches of the law which would be likely to prejudice the effectiveness of those methods.
The documents/information relating to the first dot point constitutes ‘dob in’ information to the Department by individuals alleging that the applicant and the second named applicant have entered Australia using bogus educational documents which have been created by the applicant. The allegations also indicate that the applicant has operated as a non-registered migration agent under the name Insight Consultancy Pty Ltd.
The documents/information relating to the second dot point constitutes requests by the Department to education providers to provide relevant educational information relating to the applicant and the subsequent responses.
The Tribunal in the hearing noted all of this to the applicant and indicated that he had the ability to challenge the validity of the non-disclosure certificate. The Tribunal noted that it had explained to him the key adverse information contained in the documents/information, namely, allegations that the applicant came to Australia on bogus educational documents created by him.
In response to the issue of challenging the non-disclosure certificate the applicant indicated that he wanted to reflect on this and would make the decision and provide relevant submissions if necessary after the hearing. The Tribunal agreed to this. The Tribunal noted that it had disclosed to him everything relevant in terms of the documents subject to the certificate although he had the legal ability to challenge the validity of the certificate.
The applicant did not respond after the hearing indicating that he wished to challenge the validity of the non-disclosure certificate. The Tribunal finds the certificate is valid.
The Tribunal put to the applicant pursuant to the requirements in s 359AA of the Act information being the allegations that he had entered Australia on false educational documents created by him. The Tribunal noted that the information was relevant because it contains allegations by third parties that the applicant knew of and indeed created the bogus educational documents that were used to enter Australia. The consequence of relying on the information could constitute a significant adverse discretionary factor in terms of the circumstances in which the non-compliance occurred and in considering whether the visa ought to be cancelled.
In response the applicant elected to respond in writing. No response was provided.
Given that the Tribunal is not in a position to question the individual who made the allegation that the applicant provided fraudulent documents as part of the visa application, the Tribunal does not draw an adverse inference from this adverse information.
However, for reasons already indicated, the Tribunal considers it overwhelmingly clear that the applicant knew and approved of the provision of the incorrect information and fraudulent documents concerning his educational history in all three visa applications. The circumstances in which the ground for cancellation is made out and there being no extenuating factors beyond his control are adverse to the applicant in the exercise of the Tribunal’s discretion.
In weighing discretionary factors adverse to the applicant against those in his favour the Tribunal is overwhelmingly persuaded to exercise its discretion to cancel the applicant’s visa.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 500 (Student) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
David McCulloch
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2024] AATA 2209

17 June 2024

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Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice