Kumar (Migration)

Kumar (Migration) [2023] AATA 2805 (19 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sukhdeep Kumar
CASE NUMBER:  2205900
HOME AFFAIRS REFERENCE(S):          BCC2021/631706 BCC2022/318412
MEMBER:Christine Kannis
DATE:19 August 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 19 August 2023 at 3:20pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – bogus documents – employment details – verification checks – allegations against migration agent – family hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 189, 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 to cancel the 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 did not comply with s 101(b) and s 103 of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal by MS Teams video on 24 July 2023 to give evidence and present arguments. The Tribunal also received evidence from Mr Davender Singh and Ms Aarti Bains by telephone. The Tribunal was assisted by an interpreter in the Hindi and English languages.
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. In making this determination the Tribunal notes that on 2 March 2022, the Department sent the applicant an email advising that it needed to send him important correspondence about his visa and requested that he provide his current address and email address. On 5 March 2022, the applicant submitted a subsequent Student (Subclass 500) visa application and provided his current address and email address. The s 107 notice dated 10 March 2022 was sent to the applicant at the email address he provided.
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.
Background
In his Application for a Student Visa lodged on 9 November 2021, on pages 8 and 9, under the heading Employment history details, the applicant provided the following information:
Employment status: Employed
Is this the applicant’s current employment situation: Yes
Employer/business details
Give detail of the employer/business:
Organisation name: HOTEL MOHALI RESIDENCY
Industry type: Accommodation and Food Services
Organisation Address
Country: India
Address: SCO-45, KAMLA MARKET,NEAR INCOME TAX BUILDING,MAIL PHASE-1
Suburb/Town: MOHALI
State or Province: PUNJAB
Postal code: 160055
Contact person details
Give details of the contact person within the organisation.
Family name: GOYAL
Given names: ARJUN
Business phone: 0011918284981012
Mobile/Cell phone: 0011918284981012
Position details
Position: GUEST RELATION EXECUTIVE
Date from: 13 Mar 2019
In his Application for a Student Visa lodged 9 November 2021, on pages 14 and 15, under the heading Declarations, the applicant provided the following answers:
Have read and understood the information provided to them in this application.
Yes
Have provided complete and correct information in every detail on this form, and on any attachments to it.
Yes
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. Yes
On the basis of the above information, as well as meeting all other relevant criteria, the applicant was granted a Student visa on 24 November 2021.
On 25 January 2022, verification checks were undertaken by New Delhi Post in respect of the applicant’s employment with Hotel Mohali Residency. An integrity officer at the New Delhi Post contacted Hotel Mohali Residency, using the phone number retrieved from the hotel website and spoke with a chef of the hotel who transferred the call to the Hotel Manager. The Hotel Manager confirmed to the integrity officer that no person under the applicant’s name has ever been employed with Hotel Mohali Residency, and therefore the Department concluded the documents purportedly from Hotel Mohali Residency were non-genuine.
Given the inconsistencies in the information provided by the applicant in his application and the documents submitted in support of the application, the non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101(b) and 103 of the Act in the following respects:
Alleged non-compliance with s 101(b)
Section 101 provides that visa applications are to be correct, and paragraph (b) specifically requires that no incorrect answers are given or provided.
The non-compliance identified as non-compliance with s 101(b) was:
- The applicant provided incorrect answers in his Application for a Student Visa when he:
(i)provided details on page 8 and 9 of the visa application form, under the heading Employment history details, stating he was employed by Hotel Mohali Residency in the Accommodation and Food Services industry as a Guest Relation Executive from 13 March 2019; and
(ii)declared that the information he provided was complete and correct information in every detail on the form, and on any attachments to it under the heading Declarations.
Section 99 of the Act provides that any information 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 s.101, paragraphs 101(b) and 102(b) and ss. 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 of the Act provides that 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 information was considered to be incorrect because information was received by the New Delhi Post from the Hotel Manager of Hotel Mohali Residency that the applicant had not been employed by the hotel. Therefore, the information the applicant provided about his employment with Hotel Mohali Residency in the Accommodation and Food Services industry as a Guest Relation Executive from 13 March 2019 was incorrect.
Alleged non-compliance with s 103
Section 103 provides that bogus documents are not to be given. A ‘bogus document’ is defined in s 5 (1) of the Act as a document 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.
The non-compliance identified as non-compliance with s 103 was:
·The applicant submitted the following bogus documents:
a.Appointment Letter for the Post of Guest Relation Executive, Hotel Mohali Residency, dated: 11/03/2019, signed by Arjun Goyal, appointing the applicant as Guest Relation Executive effective from 13 March 2019; and
b.Experience letter Ref no: GRE-HHR09068, Hotel Mohali Residency, dated: 15/10/2021 signed by Arjun Goyal, certifying the applicant’s employment as Guest Relation Executive from 13 March 2019;
The documents were considered to be bogus because a verification check undertaken by New Delhi Post with the Hotel Manager of Hotel Mohali Residency confirmed that the applicant had not been employed by the hotel. On this basis the Department reasonably suspected the documents were counterfeit or had been altered by a person who did not have authority to do so.
Response to the s 107 notice
On 10 March 2022, the applicant responded to the s 107 notice and provided the following information:
·He agrees the working experience at Hotel Mohali Residency (Punjab) stated in his application is incorrect. He did not work with any hotel in India.
·He completed his senior secondary education 2017 and then joined his family agriculture business.
·His father had health issues during that time and was not able to look after the family business. His father’s health is now better and he is ready to look after the family business.
·He did all the research about his further study and decided to travel to abroad to get a quality education.
·He was unfamiliar with the process of admission abroad. He visited a few different educational consultants and decided to use a consultant, Elite Education Group, which had been recommended by other people. He trusted their word and took his documents to Elite Education Group and told the consultant that he was not familiar with the admission and visa processes for Australia. The consultant told him not to worry about anything and he will look after his application.
·He told the consultant that he planned to study a hospitality course abroad. He told the consultant that he passed his senior secondary school in 2017and then had to work for the family business due to his father health issues.
·The consultant recommended a few different institutes and he selected Le Cordon Bleu due to its high reputation in hospitality industry. He applied to Le Cordon Bleu for the January 2022 intake at Sydney campus and after he received his offer letter, he paid his fees to the college. The consultant guided him through step by step and he trusted him with blind eyes and agreed with every step he was doing to process his application. The consultant lodged his visa application on 9 November 2021 and his visa was granted on 24 November 2021.
·He came to Australia and was enrolled at Le Cordon Bleu and started classes. He was shocked when he received the NOICC and found that his previous educational agent submitted employment documents with his visa application which were new to him because he did not work in hospitality in past and he did not give permission to submit these documents. He had nothing to do the employment documents used by his educational agent in India.
·He has spoken to his parents about the bogus documents submitted by his education agent in India. He has tried to contact him many times but his mobile phone has not been reachable from last 1 month. He has sent his father to the educational consultant’s office as well and his father has told him that the consultant is not working at same office anymore and has travelled to overseas 2 months before and not returned. The consultant has done the same with many international students and played with their career. He has information that currently he is living in United Kingdom. It is shocking for him to be facing this situation due to his educational consultant.
·He is stressed and scared to be in bad books of Australian High Commission. He does not have any intention of providing bogus documents to Australian High Commission.
·He is continuing his study in commercial cookery leading to Diploma of Hospitality Management at Bentley College Melbourne.
·His parents are stressed due to the situation he is facing in Australia. His parents invested in his study in Australia.
·He is having sleepless nights and is scared he will lose the opportunity to bring his career back on track. He feels the pain in his parent’s voice as well. He belongs to an agriculturalist family in India.
·He lodged a new visa application with correct documents and correct information. He has no intention to provide bogus documents and information with his new student visa application are true and genuine. He is taking full responsibility towards the documents in his student visa application.
Evidence provided prior to the hearing
A written submission from the applicant in which he provided the following information:
·His predominant purpose in coming to Australia was to study. However, he has been here for almost two years but has not received study rights. These fluctuations and gaps in his academic career are leading his young personality to stress. But he is innocent and will fight until he gets what he deserves.
·He arrived in Australia as an international student in late 2021. After a few months he received a visa cancellation notice. It was shocking news because he is a genuine student and had no intention to breach any legal condition. After reading the notice and investigating further, he came to know about providing fraudulent documents during his visa process from offshore.
·When he decided to study in Australia, he met an educational agent in his locality who assured him that each document is eligible for the visa application process and he can easily get a visa because he has all sufficient documentation. He also mentioned to him about his study gap as he completed 12^th standard in 2017. After senior secondary, his father’s health started deteriorating and he had no one at home to take care of him. As a result, he had to take an academic break to support his father and his business. He suggested his agent attach his father’s medical evidence but he denied by saying that a gap is acceptable due to COVID. He was comforted by the agent’s confidence about his profile and authorized him to deal with his case further. The effect of COVID on the education sector was obvious and he trusted him too which is his biggest mistake.
·His agent shared an offer letter in the initial stage and discussed every step of the application with him. His supportive behaviour made him more trustable. He got a visa and travelled to Australia without the knowledge of fraudulent documents provided on his behalf. He was sure that he was not guilty, so, he accepted his mistake of coming in contact with the wrong person and decided to re-lodge his student visa in the hope of fulfilling his dream to study in Australia. This visa was refused and he was given a Bridging E visa with limited working rights but no study rights.
·He came here as an international student to study and make his career not for earning only. His mistake kills him every day and he wants to correct it by following the legal process. He cannot think about studying in any other country because now his profile has been spoiled for any other immigration application. He requests to be given his student visa so he can complete his study and start his own career in India without harming his academic career.
·He cannot show his face to his family in India because they have invested their hard earned money in him. Just because his agent added something external in his application without telling him, he does not want to put its effect on his career. For him, his career is everything and he wants to go back to India with his success instead of hiding his face because his visa had been cancelled.
Evidence provided at hearing
The applicant confirmed that he was not disputing that incorrect information and bogus documents had been provided with his Student visa application.
The applicant told the Tribunal that the agent he used was in his hometown in India and his uncle had met with him. He said he chose the agent because the agent said they were good agents and had worked in many countries and had successfully applied for visas in many countries. The applicant said he provided the agent with his 10^th and 12th class certificates and medical documents in relation to his father’s illness. He said he requested that he be admitted to a cookery course and he did not know what documents the agent attached to his visa application.
In response to the Tribunal asking whether he asked to review the visa application before it was submitted to the Department, the applicant said he did not ask because he was not aware of any existing malpractice by the agent. The Tribunal put it to the applicant that given that the visa application was an official document submitted in his name for an important purpose, he should have asked to check the information provided to the Department. In response he said he did not look at the application or the documents submitted.
The applicant told the Tribunal he paid the agent in India a fee for his services.
In response to the Tribunal asking the applicant how he has financially supported himself since cancellation of his visa, he said he works 20 hours per week and has financial support from his family.
In response to the Tribunal asking the applicant how he has spent his time since cancellation of his visa, he said after the cancellation, he applied for another Student visa which was refused. He was granted a Bridging visa with work rights attached. He said he works as a truck driver 20 hours per week. When questioned further about his hours he said he works whenever the company calls him to work. He said the company, Dangerous Goods, is an import and export company. The applicant told the Tribunal that when he is not working, he spends all his time resting.
When asked about the hardship that may arise from cancellation of the Student visa, the applicant told the Tribunal that if his visa is cancelled his career will be destroyed. He said he will have lost everything and have nothing left. In response to the Tribunal asking how he intended to use his hospitality qualification, he said he wants to improve his cooking skills and open his own hotel in India. The applicant told the Tribunal that cancellation of his Student visa has caused him a lot of stress. In response to the Tribunal asking whether he has sought medical assistance for his stress, he said he had not done so.
The applicant told the Tribunal that when he received the s 107 notice he tried calling the agent but his call was not answered. In response to the Tribunal asking whether he made any further attempts to contact the agent, the applicant said his most recent attempt was answered with a message that the phone is switched off. The applicant said when he received the s 107 notice, his family tried to meet with the agent at his office but he wasn’t there.

Mr Davender Singh told the Tribunal that he has known the applicant for many years because they were neighbours in India. He said he currently sees the applicant once a week. He said the applicant left his study in 2017 because his father was sick and he had the responsibility of running the family business. Mr Singh said when the applicant’s father recovered, the applicant decided to study hospitality abroad. He said due to a miscommunication with his agent and because he placed “blind trust” in his agent, fraudulent documents about his work experience were provided to the Department. Mr Singh said the applicant was not aware of the fraudulent documents. He said the applicant is stressed out because he wants to return to India with something in his hand. He said on a visit to India he found the applicant’s parents were also stressed out about the cancellation of the Student visa.
Ms Aarti Bain told the Tribunal that she is a family friend of the applicant and said their fathers were good friends. She said she sees the applicant on average twice a month. She said he stressed out about his education. Ms Bain told the Tribunal that the applicant’s agent did not provide the correct information to the Department and it was not his fault.
The Tribunal accepts the evidence of Mr Singh and Ms Bain however is mindful that the circumstances of providing incorrect information and bogus documents to the Department would not be personally known to them and their evidence in this regard was based on what the applicant reported to them and therefore gives this evidence limited weight. The Tribunal accepts their evidence that they have observed the applicant to be experiencing stress and gives this some weight.
Non-disclosure certificates
At the hearing the Tribunal told the applicant that non-disclosure certificates had been issued by the delegate under s 375A and s 376 of the Act.
In relation to the s 375A certificate, the reason disclosure of the material would be contrary to public interest was stated to be because it would disclose, or enable a person to ascertain the existence or identity of, a confidential source of information and disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The Tribunal decided the certificate contains a valid ground of public interest immunity not to disclose the information. The Tribunal asked the applicant whether he wished to comment on the validity of the certificate. The applicant said he had no comment on the validity of the certificate.
In relation to the s 376 certificate, the reason disclosure of the material would be contrary to public interest was stated to be the information/ documents were given to the Department in confidence. The Tribunal decided the certificate contains a valid ground of public interest immunity not to disclose the information. The Tribunal asked the applicant whether he wished to comment on the validity of the certificate. The applicant said he had no comment on the validity of the certificate.
The Tribunal informed the applicant that it would let him know the ‘gist’ of the information that was subject to the s 375A and s 376 certificates. Given the information was adverse, the Tribunal put the information to the applicant under s 359AA of the Act at the hearing. The Tribunal put to him that the information the subject of the s 375A certificate related to an investigation into 18 Student visa holders who provided fraudulent documents in Student visa applications and that he was identified as one of these Student visa holders. In response, the applicant told the Tribunal that he did not dispute that fraudulent documents had been provided. The Tribunal put to him that the information the subject of the s 376 certificate related to information provided to the Department by the Hotel Mohali Residency Manager that a person with the applicant’s name had not worked for the hotel. In response, the applicant told the Tribunal that he had not worked for any hotel in India.
The Tribunal noted that the information the subject of the s 375A and s 376 certificates which was relevant to the applicant was also contained in the delegate’s decision. Accordingly, the relevant information has been considered by the Tribunal in making its decision and the Tribunal finds that the applicant did not work for a hotel in India and that he provided fraudulent documents with his Student visa application.
Conclusion on non-compliance
The applicant did not dispute that he provided incorrect information. On the evidence before it, the Tribunal finds that the applicant’s answers on his visa application form stating he had worked for Hotel Mohali Residency as a as a Guest Relation Executive from 13 March 2019 was incorrect.
Further non-compliance with s 101(b) of the Act was identified and particularised in the s 107 notice because the applicant answered Yes to the Declarations that he agreed to provide correct and up to date information. The information regarding his position and commencement date was incorrect information. The Tribunal further finds that by declaring that the information he provided was complete and correct information in every detail on the form and on any attachments to it, he provided an incorrect answer.
Accordingly, the applicant has not complied with s 101(b) as described in the s 107 notice.
The applicant did not dispute that he provided bogus documents. The Tribunal finds that the Appointment Letter for the Post of Guest Relation Executive, Hotel Mohali Residency, dated: 11/03/2019, signed by Arjun Goyal, appointing the visa holder as Guest Relation Executive effective from 13 March 2019 and the Experience letter Ref no: GRE-HHR09068, Hotel Mohali Residency, dated: 15/10/2021 signed by Arjun Goyal, certifying the visa holder’s employment as Guest Relation Executive from 13 March 2019 are bogus documents because the Hotel Manager of Hotel Mohali Residency advised that the applicant had not been employed by the hotel. Therefore, the Tribunal reasonably suspects that the documents are counterfeit or have been altered by a person who does not have authority to do so and finds they are bogus documents. The Tribunal finds that the documents are counterfeit within the meaning provided by paragraph (b) of section 5(1) of the Act.
Accordingly, the applicant has not complied with s 103 as described in the notice.
The applicant submitted that he entrusted his application to an agent and was not aware of the incorrect information and fraudulent documents submitted with his application. The Tribunal accepts that an agent assisted the applicant with his visa application. However, the Tribunal is of the view that the applicant had the responsibility of checking the documents before they were submitted and an opportunity to do so, as he may have been able to withhold payment from the agent until his requirements were met. The Tribunal is also mindful that ss 98 and 100 of the Act make it clear that it is not necessary for the applicant to be personally involved in the fraud, nor even to be aware of it, for the grounds for cancellation to be established.
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 to the s 107 notice and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (the Regulations).
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadji (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’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has taken the reg 2.41 prescribed circumstances as well as any other relevant facts and matters, including the applicant’s responses to the s 107 notice into account when considering the discretion.
Prescribed circumstances
The correct information
The correct information is that the applicant was not employed by Hotel Mohali Residency as a Guest Relation Executive from 13 March 2019 as stated by the applicant in his Application for a Student Visa.
In the response to the s 107 notice and at the hearing, the applicant said that he had never worked in a hotel in India. This correct information was not provided
The Tribunal gives this some weight in favour of exercising its discretion to cancel the visa.
The content of the genuine document (if any)
This consideration does not apply in this case.
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
For the reasons set out above, the Tribunal has concluded that the decision to grant the visa was based partly on incorrect information and bogus documents. It is not necessary to establish that the visa would not have been granted if the correct information was known and bogus documents not provided. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on the incorrect information and bogus documents.
The Tribunal gives this factor weight in favour of its discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant’s explanation for the incorrect information and the bogus documents is that he relied on an agent and was not aware of the provision of the incorrect information and bogus documents. Whilst the Tribunal accepts that an agent completed the visa application, it finds the applicant’s explanation problematic. The Tribunal is of the view that the applicant had the responsibility to learn what information was being submitted on his behalf and finds he did not take sufficient steps to ensure the application contained correct information and genuine documents. The applicant could have made inquiries with the agent, particularly before the application was made and the agent’s fee paid, and he could have made a request to check the entire application before its lodgement. In the Tribunal’s view, it was his responsibility to do so to ensure that any information submitted on his behalf was correct and accurate. The visa application was an official document submitted for an important and serious purpose.
The Tribunal accepts that the applicant had an agent who assisted him with the application, however in the Tribunal’s view, that does not diminish the applicant’s own responsibility for the content of his application. The Tribunal finds that the applicant was negligent in his actions and, given that the application included a declaration that information he provided was complete and correct information in every detail on the form and on any attachments, he was recklessly indifferent in his dealings with the agent.
The Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.
The present circumstances of the visa holder
The applicant has been residing in Australia for 19 months, having arrived on 21 December 2021. The applicant told the Tribunal that after cancellation of his Student visa, he was not able to undertake study. He said he is currently living in shared accommodation with three other people. He said he spends his time working 20 hours per week and resting. The applicant told the Tribunal that he attends temple each Sunday.
There is no evidence before the Tribunal that the applicant has any significant personal ties in Australia.
The Tribunal accepts that the impact of cancellation of the visa is that the applicant will be unable to resume study. The Tribunal gives this some weight against exercising its discretion to cancel the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance.
The Tribunal gives this consideration a little weight against cancelling the visa.
The time that has elapsed since the non-compliance
The applicant provided the bogus documents and incorrect answers on his application form submitted to the Department on 9 November 2021. The Tribunal accepts that it is 20 months since the events of non-compliance occurred, however does not consider this to be a significant amount of time.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any contribution made by the holder to the community
In response to the Tribunal asking about any contribution he makes to the community, the applicant said he attends temple every Sunday and prays he will be granted a Student visa. When the Tribunal pointed out that this does not constitute a contribution to the community, the applicant said he serves up free food to people at the temple. The applicant told the Tribunal he also donates money at the temple.
The Tribunal gives this consideration a little weight against cancelling the visa.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.
Other considerations
As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and the Tribunal gives this factor no weight in its considerations.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s 189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a 3 year exclusion period unless he meets the relevant Public Interest Criterion. Whilst these are serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
There are no children who would be affected by the cancellation. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant is a citizen of India and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations or family unity obligations. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
The applicant told the Tribunal that since cancellation of the visa, he has experienced stress. Mr Singh and Ms Bains provided evidence that they have observed the applicant to be stressed. Mr Singh told the Tribunal that the applicant’s parents are also experiencing stress with respect to the visa cancellation.
The applicant told the Tribunal that cancellation of his visa means his career will be destroyed.
The Tribunal accepts that the applicant and his family will be disappointed if the visa is cancelled and may experience emotional hardship as a result. The Tribunal accepts that cancellation of the visa will mean the applicant will be unable to complete his study and return to India with a cookery qualification. He told the Tribunal he wishes to open a hotel in India.
The Tribunal gives this some weight against exercising its discretion to cancel the visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the factors identified by the legislation and policy. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101(b) and s 103 of the Act.
The Tribunal accepts that hardship may be caused to the applicant and his family if the visa is cancelled. The Tribunal accepts that the applicant has no other instances of non-compliance and no criminal record. These are factors that suggest that the visa should not be cancelled.
The Tribunal accepts that if the applicant’svisa is cancelled, and unless he is granted another visa, he may be subject to detention, although the applicant may be eligible to apply for othervisas.
The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.
The applicant’s non-compliance may cause him and his family some hardship, however the Tribunal considers the applicant’s provision of incorrect information and bogus documents is not outweighed by the considerations before it. The Tribunal places greater weight on the fact that the correct information was not provided to the Department, the circumstances in which the non-compliance occurred and that the decision to grant the visa was based partly on incorrect information and bogus documents provided to the Department.
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 applicant’s Subclass 500 (Student) visa.

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.

[2023] AATA 2805

19 August 2023

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