Kumar (Migration)

Kumar (Migration) [2023] AATA 2045 (14 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mukesh Kumar
REPRESENTATIVE:  Mr Goel Rajan (MARN: 1679363)
CASE NUMBER:  2212829
HOME AFFAIRS REFERENCE(S):          BCC2021/2431261
MEMBER:David McCulloch
DATE:14 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 June 2023 at 9:13am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – bogus document – IELTS test results – facial image comparison – consideration of discretion – circumstances in which the non-compliance occurred – policy imperative – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 visa that was cancelled was granted on 19 March 2021 for a period of stay until 1 November 2023.
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.
The applicant appeared before the Tribunal on 26 May 2023 at 11.30am to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended 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:
Evidence of non-compliance
On 17 December 2019, you lodged an application for Student visa. On page 10 of the visa application form, under the heading ‘English test details’, you answered the following:
Give details of the highest scoring English test over the 24 month period.
Name of test: IELTS
Date of test: 16 Sep 2019
Test reference number: 19IA000163TM087A
Country where test was undertaken: INDIA
Overall test score: 7.0
In support of your visa application, you provided an IELTS Test Report Form dated 29 September 2019 and an IELTS TRF Verification – TRF Results Details dated 13 November 2019. Both documents reference TRF Number ‘19IA000163TM087A’ and depict the same candidate photo.
On the basis of the information provided in your visa application and the supporting documents, as well as meeting all other relevant criteria, you were granted a Student visa on 19 December 2019.
Subsequent information received by the Department
Facial Image Comparison
Following the grant of your visa, the Department conducted integrity checks on your IELTS examination results. On 17 March 2022, a delegate from the General Cancellations Network referred your facial image recorded on departmental systems and the facial image of the candidate photo represented on the IELTS test results you provided, to the Department of Home Affairs’ Facial Image Examination Unit.
On 20 April 2022, the Forensic Facial Image Examiner made the following finding:
The facial images have been compared and I am of the opinion that there are indications that they are not the same person.
Consequently, as this finding indicates that the facial images represent two different people, I consider you did not attend the IELTS examination on 16 September 2019. Therefore, I consider the IELTS test results submitted by you in support of your student visa, are bogus documents as defined by s5(1)(a) of the Act, because it purports to have been, but was not, issued in respect of the person.
The non-compliance with Subdivision C of the Act
Non-compliance with section 101(b)
I consider that you may not have complied with s101(b) of the Act because:
·On 17 December 2019, you lodged an application for Student visa. Under the heading ‘English Test Details’, the form asked, ‘Give details of the highest scoring English test over the 24 month period’. You answered:
Name of test: IELTS
Date of test: 16 Sep 2019
Test reference number: 19IA000163TM087A
Country where test was undertaken: INDIA
Overall test score: 7.0
I consider this answer to be incorrect because information before indicates that another person presented to undertake the IELTS test. Therefore, it appears that you did not undertake the IELTS test, and did not achieve the IELTS results denoted in your visa application.
Non-compliance with section 103
I further consider that you may not have complied with s103 of the Act because:
·In support of your Student visa lodged on 17 December 2019, you provided an IELTS Test Report Form dated 29 September 2019 and an IELTS TRF Verification – TRF Results Details, which depicted the image of the same person.
Having considered the information provided the Department of Home Affairs’ Facial Image Examination Unit, I consider that your facial image recorded on departmental systems does not match the facial image on the IELTS results. Therefore, it appears you did not complete the IELTS test, which generated the results you submitted in your Student visa application.
Therefore, I reasonably consider the IELTS Test Report Form and the IELTS TRF Verification – TRF Results Details are bogus documents as they purport to have been, but was not, issued in respect of the person (that is, you) as defined by s5(1)(a) of the Act.
Conclusion
It appears that you have not complied with s101(b) and s103 of the Act. If you did not comply with s101(b) and s103 in relation to your previous Student visa, by virtue of s107A, your current Student visa may be cancelled under s109 of the Act.
The applicant was notified of, and invited to comment on, the intention to consider the cancellation of their student visa. The applicant did not reply to the notification letter.
In a submission provided on the applicant’s behalf to the Tribunal (extracted below) it is conceded that the applicant never sat the IELTS exam and that the document uploaded to his previous student visa application was a bogus document. This was confirmed by the applicant in the hearing.
Given those admissions, the non-compliance specified in the s 107 notice has been established in terms of incorrect information that the applicant obtained the score stated on the test and that he sat the test and that he has provided a bogus document.
For these reasons, the Tribunal finds that there was non-compliance with s 101 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 Regulations 1994 (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 contain the following discretionary considerations: 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 submission provided on the applicant’s behalf to the Tribunal dated 11 May 2023 addressing relevant discretionary factors is as follows:
It is submitted as follows:
1. The applicant’s visa was cancelled on 30th August 2022 under s 109 of the Migration Act, after he had received the notice of intention to consider cancelling (NOICC) the visa on 5th August 2022.
2. The applicant’s current student visa was cancelled on the basis of the information which was provided in his previous student visa application which had ceased to be in effect on the grant of his current student visa.
3. Applicant concedes that he has never sat an IELTS exam before and that the document uploaded to his previous student visa application (which formed the basis of his current student visa cancellation) was a bogus document and which the applicant never supplied as part of his visa application deliberately.
Relevant Legislation
Section 109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
4.The applicant never responded to the NOICC that was issued and was never able to present any mitigating factors as prescribed under the Law for the Case officer to consider before cancelling his visa.
5.We also submit that, in our opinion, the Delegate was not able to give appropriate weight to the prescribed circumstances which they must consider under s 109(c) of the Migration Act before cancelling the visa, mainly due to insufficient information available to the Department as the applicant never responded to the NOICC given by the Department.
6.We request the Learned Member to kindly consider the applicant’s response now and reconsider all the prescribed circumstances, so that the cancellation grounds could be properly established.
Circumstances in which the non-compliance occurred.
7.The applicant had completed his Bachelor of Hospitality in India and had scored very good marks. And because his grades were good, his parents had decided to send him to Australia to get further education.
8.The applicant went to a local Education Agent who was dealing with Australian visas in their hometown, unaware of any difference between people who are legally authorized to provide immigration assistance and people who are not.
9.The agent presented him with various options to study Masters in Australia, and the applicant after deciding on the course and the University, signed up for the services from the Agent.
10.The Agent asked for the paperwork from the applicant and ultimately lodged the visa on 18th December 2020, which got granted on 19th December 2020 (next day after the visa lodgment).
11.The applicant states that he did enquire whether he would need to appear for an English exam such an IELTS exam, but he was told by the agent that since he has completed his Bachelors and because the University he is applying in is a Level 1 university, he will not require to appear for any IELTS test.
12.As stated earlier, the applicant got his visa application the very next day of lodgment and therefore he never got the chance to ask the agent for the application responses or for any other information, which he states that he would have most certainly asked for if there was a little bit of gap between the application and the lodgment.
13.Applicant only became aware of the fact that an IELTS score card was attached to his student visa application, after the University that he was studying in informed him about it nearly 6 months after he had started studying there.
14.Applicant states that he never intended or had supplied any IELTS test document to his agent and he was unaware that a document of such kind was ever uploaded to his application.
Present circumstances of the visa holder
15.The applicant came to Australia to study Master of Business Administration (Hospitality). Applicant had earlier studied Bachelor of Hospitality and Tourism back in India as well.
16.Because of various factors, the applicant, after becoming more aware of his career goals, changed his course and started studying a packaged course which consisted of Certificate 3 and 4 in Commercial Cookery, Diploma of Hospitality Management and Advanced Diploma of Hospitality Management (a total of 2.5 years of course).
17.Applicant has now completed 2 years of study in Australia with good grades and was studying Advanced Diploma of Hospitality when he his visa got cancelled.
18.Applicant was hoping to gain the valuable experience as a Chef in Australia after he completed his studies so that he could really achieve what he had set out to achieve after studying this course in Australia.
19.The applicant will suffer a huge emotional setback along with his parents if he is unable to complete his studies in Australia and the valuable experience that he deems necessary to complete his qualifications and become trained as a Chef.
20.The applicant has not worked since almost a year now and has suffered a lot financially as well while waiting for this appeal to proceed and hoping that he could start studying and working in Australia.
21.The applicant has already paid nearly 40,000 AUD for his studies in Australia and further spent a lot on his living expenses especially in the past 1 year when he was not even allowed to work at all.
Subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
22.Applicant, after deciding to change his initial course of study to a new course, was obligated to lodge a new student visa with the Department.
23.The applicant lodged that student visa in Australia itself and was always truthful in the new visa application.
24.The applicant was granted this student visa but unfortunately, this visa got cancelled only due to the information which was provided as part of the previous student visa application.
Any other instances of non-compliance by the visa holder known to the Minister.
25.There have been no other instances of non-compliance that have been mentioned by the Delegate in the decision record of the cancellation decision.
Time that has elapsed since the non-compliance.
26.The applicant had applied for his first student visa from India on 18^th December 2019 and had his student visa approved within one day i.e., on 19^th December 2019. It was most likely an auto grant (granted by the computer system without human intervention).
27.The other major reason why student was not able to get the application form his agent and possibly check it was that the visa was granted so soon and before he could request the agent to send him the application response etc., the visa was already granted.
28.Therefore, the applicant never got the chance to possibly become aware of the fraudulent document that was attached to the application by the agent.
29.It has now been almost 3.5 years since the non-compliance occurred.
30.Since then, applicant had studied 6 months of his Masters (the course that he initially came to Australia to study) and further 2 years of commercial cookery and Hospitality courses (the course that he changed to) in Australia.
any contribution made by the holder to the community.
31. The applicant came to Australia in January 2021.
32. The applicant has spent the entire COVID period in Australia and was working in the Hospitality sector for those 2 years and worked and supported the Australian community during the pandemic.
33. Applicant has studied his course with utmost dedication and has already passed 2 certificate level courses and 1 Diploma level course and was already studying Advanced Diploma before his visa got cancelled.
34. Applicant has always paid his tuition fee on time and adhered to the conditions of his visa since coming to Australia.
We request the Learned Member to kindly consider revocation of cancellation or remitting the application back, based on the reasons given above.

Provided is evidence of the applicant fulfilling the requirements of the Certificate III in Commercial Cookery on 6 September 2021 and of a Diploma of Hospitality Management on 5 August 2022.
The key discretionary factor submitted by the applicant is consideration of the circumstances in which the non-compliance occurred. The applicant claims that his migration agent specifically told him he did not need to undertake an IELTS test based on his studies in India.
The Tribunal in the hearing questioned the applicant about the visa application process. The applicant indicated that his parents located the migration agent. The applicant met the migration agent in person twice, first in September or October 2019, when he gave the agent relevant information. The applicant maintained that the agent told him that because he was to study at university level in Australia, he did not need to undertake an English test. The applicant indicated that he did not see what the agent submitted on his behalf in terms of the visa application. The applicant indicated that he met with the agent again soon after the visa was granted to receive the passport that had been provided for him and the visa.
The applicant also indicated that the agent had created a separate email address for the purpose of sending relevant visa and university information, unknown to the applicant.
The Tribunal put to the applicant that the evidence clearly discloses that another individual fraudulently sat the IELTS test in the applicant’s name on 16 September 2019. The Tribunal put its significant credibility and plausibility concerns that the agent would have told the applicant that he did not need to sit an English test, and then would have fraudulently, and without the knowledge of the applicant, gone to the effort of having another individual sit the IELTS test. In response, the applicant maintained that he was not informed of this and that the agent indicated that an English test was not required.
The Tribunal put to the applicant that he had submitted the application to the Department for the student visa that specifically, in his name, states that he sat the IELTS test on 16 September 2019 and which testifies that the contents of the application are true. The Tribunal put to the applicant a broader policy imperative that in this instance the applicant should face consequences for incorrect statements and bogus documents in applications he has made. The applicant maintained that the agent did not inform him of the incorrect claims as to him sitting the English test or the provision of the bogus document. The applicant referred to his young age of 21 at the time.
The Tribunal assesses this discretionary factor further below.
In terms of other discretionary factors, the correct information would have been for the applicant to not indicate a score obtained on an IELTS test taken by him on the application form for the protection visa.
The content of the genuine document is not relevant.
The decision to grant the visa would have been at least partially based on the incorrect information that was provided that the applicant gained the score that was stated on the IELTS test that he supposedly undertook. An adequate score was a criterion for the grant of the visa. In the hearing the applicant conceded this.
The present circumstances of the visa holder indicate that he has successfully undertaken studies in Australia from 2019, including successfully passing three hospitality courses, after an initial Master’s course was cancelled. The applicant has not been able to continue with his Advanced Diploma of Hospitality Management due to the cancellation of his current, second, student visa. These factors are referred to further below in the discussion as to the hardship the applicant will face if the visa remains cancelled.
There are no adverse factors for the applicant in relation to his subsequent behaviour concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act.
The Tribunal is not aware of any other instances of non-compliance by the applicant.
The Tribunal accepts that it has been some time since the claimed adverse circumstances in relation to the application for the original student visa occurred (that is, 2019).
Relevant in terms of PAM3 discretionary factors are the circumstances in which the ground of cancellation is made out and whether there are any extenuating circumstances beyond the visa holder’s control leading to the ground of cancellation. This raises the same issue discussed above as to the circumstances in which the non-compliance occurred.
A key PAM3 discretionary factor is the hardship the applicant will face if the visa remains cancelled. The Tribunal accepts that the applicant has studied appropriately and successfully during his time in Australia, apart from abandoning his initial Master’s course. The Tribunal accepts that the applicant has had to cease his study of the Advanced Diploma of Hospitality due to the visa being cancelled. The Tribunal accepts not insignificant hardship to the applicant if he is unable to continue and complete the Advanced Diploma of Hospitality as he wishes.
In terms of intentions after that, in the hearing the applicant indicated that he will complete his Advanced Diploma of Hospitality if the visa is reinstated, and thereafter undertake work experience as a chef in Australia for one to two years before returning to India. The Tribunal asked the applicant if he has any intentions to seek to stay in Australia on a permanent basis. The applicant indicated that he has family back home in India and intends to return to them.
The applicant referred to significant hardship if the visa remains cancelled in terms of wasted expenses and time, particularly in the last nine months. The applicant refers to costs regarding his travel and education in Australia in the region of $60,000. The applicant indicated that his family will be disappointed if he has to return to India in the near future without fulfilling future study and work goals.
The Tribunal noted to the applicant that he has obtained three hospitality qualifications which he could use on return to India in the near future to facilitate a hospitality career. In response, the applicant maintained that he would experience hardship due to limitations in relation to completing the Advanced Diploma and being able to gain work experience in Australia.
The Tribunal accepts that there have been significant funds expended by the applicant and his family in facilitating the applicant’s study in Australia and to some extent his potential will not be fully realised in terms of his intentions as a result of him not being able to complete the Advanced Diploma of Hospitality and gain work experience in Australia as a chef before returning to India to pursue a hospitality career.
Having said that, the applicant will return to India having completed three hospitality courses in Australia and therefore his time studying in Australia will not have been completely wasted. Nevertheless, the Tribunal, as indicated, does accept a degree of hardship to the applicant if the visa remains cancelled in terms of future study and work intentions.
Associated with this is the hardship the Tribunal accepts will be faced by the applicant because there will be limitations on his ability to apply for other visas for a period, which will affect whether he can stay or return to Australia.
The Tribunal accepts the fact that if the visa is cancelled the applicant could theoretically be an unlawful noncitizen and detained. However, there is no indication that the applicant has undertaken actions that would likely mean that an application for a bridging visa would be refused to make his situation lawful as he makes arrangements to leave the country.
The applicant in the hearing indicated that there are no children whose interests would be affected by a cancellation.
In the hearing, the applicant indicated that he does not fear persecution or significant harm on return to India.
The above outlines the discretionary factors relevant to this matter for the Tribunal. The Tribunal continues to assess and weigh discretionary factors.
Before doing that, the Tribunal notes that on the Departmental file is a nondisclosure certificate issued pursuant to s 375A of the Act. The certificate pertains to two documents on the file on the basis that they disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law that would be likely to prejudice the effectiveness of those methods.
The Tribunal indicated to the applicant in the hearing that information contained in the documents was either not relevant or was otherwise subject to disclosure in the hearing. The Tribunal indicated, however, that the applicant had the right to challenge the validity of the non-disclosure certificate and the Tribunal needed to alert the applicant of that right. After the applicant consulted with his representative, he indicated that he had no desire to challenge the validity of the nondisclosure certificate.
The Tribunal proceeds to assess and balance relevant discretionary factors.
If the applicant did not know or should not reasonably have known that an IELTS test was taken by another individual on his behalf, then that would be a significant circumstance that would weigh very strongly in favour of not cancelling the visa.
As indicated, in the hearing the applicant stridently and repeatedly maintained that the Indian migration agent told him he did not need to undertake an English test and did not show the applicant the application that was submitted to the Department in his name which attests to the contents. The applicant indicates that after the visa was cancelled, he met for the second time with the agent, who gave him his passport and the visa but did not provide him with or show him the application that had been made on his behalf. The applicant indicated that it was not until he was in Australia that he learned that the application had falsely stated he had undertaken the IELTS test.
Notwithstanding the applicant’s consistent denials that he was aware of the fraudulent IELTS test and the need for an English test for the visa, the Tribunal is not satisfied that this is credible or plausible. As it is, the applicant is maintaining that some person unknown to him, such as the agent, facilitated the sitting of the IELTS test in the applicant’s name by a person other than him.
The Tribunal is not satisfied, even accounting for the applicant’s young age, that he would not have been given information relating to key requirements for the visa, including the requirement for the English test.
The Tribunal also has concerns about claims that he never saw the visa application sent in his name and providing attestations by him in the context of the application attesting that he has read and verified all the contents of the document.
In the event that the applicant was not aware of the fraudulent IELTS test and the information provided in the visa application, he should have ensured that he was made aware of the application that was submitted to the Department.
Thus, in considering the circumstances in which the ground of cancellation is made out, the Tribunal has significant difficulty accepting that the applicant did not know of the incorrect answer and bogus document. If he did not know, he was negligent in not ensuring that he was aware of the contents of the visa application that was submitted in his name.
The Tribunal, in the applicant’s favour, takes into account his positive study history in Australia, in part from abandoning his Master’s course. Weighing against cancelling the visa is this positive study history and the hardship that would be faced if he has to return to India without completing his studies as desired and, beyond that, gaining work experience in Australia before returning to India to pursue a hospitality career. The Tribunal accepts that the applicant and his family will have wasted resources regarding the costs of his travel and study in Australia when the aim was to complete the desired course and work experience.
However, the extent of the hardship is mitigated to some degree by the fact that the applicant will, if the visa remains cancelled, return to India having completed three hospitality courses, which he can use to facilitate a hospitality career in India. Thus, if the decision is made to cancel the visa, the applicant will still have significantly benefited in terms of study in Australia in the context of the original student visa being secured through incorrect information and fraud.
The Tribunal considers that there is a hardship weighing in the applicant’s favour in relation to limitations on his ability to apply for other visas for a period.
The Tribunal takes into account in the applicant’s favour that there are no other instances of non-compliance or other inappropriate behaviour or actions by the applicant.
The Tribunal accepts that it has been some time since the adverse issues relating to the cancellation of the original visa occurred (that is, in 2019). This period of four years, and the fact that the applicant mostly undertook appropriate studies during his time in Australia, weigh in the applicant’s favour.
In summary, significantly adverse to the applicant is the fact that the Tribunal considers that the applicant knew or at least ought to have known of the incorrect information and bogus document as part of the application for the original student visa. The Tribunal also considers that there is a strong policy imperative that visa applicants who provide incorrect information and bogus documents in visa applications should face some adverse consequences for doing so.
Balancing against this, it is accepted that the applicant will experience hardship if the visa remains cancelled in terms of not being able to complete his Advanced Diploma and undertake work experience in Australia, and wasted resources. However, this is mitigated by the fact that the applicant’s expenditure of resources has resulted in him completing three hospitality courses in Australia, which will provide him with not insignificant qualifications to pursue a hospitality career in India.
The Tribunal, on balance, does not consider that the discretionary factors that are adverse to the applicant, particularly that he would have known or ought to have known of the incorrect information and bogus document, are outweighed by the discretionary factors in his favour, such as the hardship that he will face if the visa remains cancelled.
The Tribunal determines to exercise its discretion to cancel the 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 applicant’s Subclass 500 (Student) visa.
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.

[2023] AATA 2045

14 June 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

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