LAKHWINDER SINGH (Migration)

LAKHWINDER SINGH (Migration) [2023] AATA 3996 (17 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr LAKHWINDER SINGH
REPRESENTATIVE:  Mr Sourabh Aggarwal (MARN: 1462159)
CASE NUMBER:  2309585
HOME AFFAIRS REFERENCE(S):          BCC2023/148188
MEMBER:James Silva
DATE:17 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 17 November 2023 at 2:38pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in association with student visa application – incorrect answers and bogus document given in previous temporary activity visa application – employment and duties – discretion to cancel visa – changeable evidence lacking credibility – claims of reliance on agent and misconduct by prospective employer and/or agent and that department would or should have verified information – not necessary or appropriate for tribunal to inquire further – further visa applications in progress and Bridging C visa granted – intention to avoid adverse migration history to apply for third country visas – mandatory legal consequences, including restrictions on further applications for specified visa types – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 101(b), 103, 104, 105, 107, 109(1), 111
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 408.223, Schedule 4, criterion 4020
CASES
McDonald v D-G of Social Security (1984) 1 FCR 354
MIAC v Khadgi (2010) 190 FCR 248
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Singh v MIEA [1994] FCA 1534
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291

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 010 (Bridging A) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The review applicant (former visa holder, ‘applicant’ in this decision) is a national of India, born in February 1982. He was granted a Bridging A visa on 16 February 2023, in association with a student visa application. On 5 April 2023, the delegate issued a Notice of Intention to Consider Cancellation (NOICC, s.107 notice) because the delegate formed the view there were grounds for cancelling the applicant’s visa under s.109. The applicant responded to the NOICC on 12 May 2023. On 23 June 2023, the visa was cancelled. The applicant seeks review of the decision to cancel the visa.
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.
Background to this matter
The applicant is a 41 year old Indian man from Patiala, Punjab, India.
As noted in the delegate’s decision record, he applied for a Temporary Activity (Religious Work) (subclass GG408) visa on 7 December 2022, on the basis of an invitation issued by the Australian Sikh Association (ASA) to him. It was granted on 19 December 2022, and the applicant arrived in Australia on 22 December 2022. The visa was valid for three months, until 22 March 2023. On 3 February 2023, the company secretary of the ASA advised the Department that the ASA had not invited or sponsored the applicant, or offered financial support, or provided any letter to this effect.
A first NOICC was sent on 8 February 2023 via the applicant’s address in India, relating to his subclass 408 visa that was due to expire on 22 March 2023. The Department did not proceed with that cancellation. Meanwhile, the applicant had lodged a Student visa application on 16 February 2023, and was granted a Bridging A visa that came into effect on 23 March 2023.
The Department sent a NOICC on 5 April 2023, in relation to the Bridging A visa. The applicant responded to the NOICC. The delegate cancelled the visa on 23 June 2023. They cancellation was on the basis that the applicant had, in an application for the subclass 408 visa dated 7 December 2022, provided incorrect answers, in breach of s.101(b) and provided a bogus document, in breach of s.103. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal to give evidence and present arguments at a hearing held on 23 October 2023. He is represented in this matter by registered migration agent Mr Sourabh Agharwal, who attended the hearing.
During this review, the representative has contended that the applicant relied on third party services in good faith and was the victim of misconduct, which he strongly suggested was on the part of the Australian Sikh Association. In this context, he pressed for the Australian authorities (and by implication, the Tribunal during this review) to conduct a through and transparent investigation of the fraud, in large part to clear the applicant’s name.
The Tribunal’s task in this review is to determine whether there has been non-compliance, and if so, whether the visa should be cancelled. It considers that the applicant has had ample opportunity to address the alleged non-compliance and the circumstances surrounding it. For the reasons set out below, it is not satisfied that he has been completely frank about his dealings with the Indian agent who provided the incorrect answers and the bogus document. The Tribunal therefore finds it neither necessary nor appropriate for it to conduct any broader enquiry of the kind suggested by representative.
On 14 November 2023, the representative sent to the Tribunal a copy of a decision in another AAT matter, case no. 2309585, involving the cancellation of student visa under s.109. The covering email noted in that case, the Member had provided the applicant with an opportunity to make further enquiries, with the result that a forensic document examiner concluded that a particular document did not bear the applicant’s signature. The email asked the Tribunal to note that the applicant ‘never signed the paperwork as part of the contract which was presented as an evidence for his case’. It also asked the Tribunal to ‘consider [this case] on similar ground as applicant is victim of fraud and haven’t provided incorrect information to the department’ [sic]
The Tribunal notes that in the present case, the alleged incorrect answers were provided in an online form. There is no suggestion that the applicant’s signature appeared, or should have appeared, on any documents relating to this matter. Insofar as the email touches on other points – such as whether or not the applicant provided incorrect answers, and if so, the circumstances in which he did (including as the ‘victim of fraud’) – these were discussed at hearing, and are assessed below. In sum, the submission of 14 November 2023 does not raise any new relevant issues.
Did the notice comply with the requirements in s 107?
In the present case, no concerns have been raised as to whether the notice issued by the Minister’s delegate complied with s.107, and there is nothing in the materials before the Tribunal to raise questions about this. 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 s.107 notice identified the non-compliance with the following sections of the Act:
§ Section 101(b), which states: ‘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, which states: ‘Bogus documents not to be given’: 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.
Incorrect answers: s.101(b)
The s.107 notice[1] identified incorrect answers, in the form of the information that the applicant provided in his Temporary Activity (Religious Work) visa application on 7 December 2022. They were:
§ Question on page five: ‘Give details of the organisation(s) for which activity will be undertaken in Australia’. Answer: ‘The Australian Sikh Association’.
§ Question on pages six/seven: ‘Give details of the type of activity the applicant will be undertaking in Australia’. Answer: Working as a preacher for the ASA, to ‘do Katha and Kirtan to instil the Sikh religion and faith in the local community and to do religious ceremonies’. ‘Working hours per week’. Answer ‘20’.
§ ‘Question on page seven: ‘Give details of the proposed period of activity in Australia’: Answer: ’16 January 2023 to 16 February 2023’.
§ Question on page seven: ‘Give details of an address where the work will be undertaken’. Answer: the Sikh Centre (Sydney), Glenwood, New South Wales 2768.
§ Question on page eight: ‘Give details of how the stay will be funded.’ Answer: ‘The Australian Sikh Association will be responsible for my boarding and lodging and any other incidentals occurred during my stay with them’.
Evidence of non-compliance
§ As noted in the NOICC and in the delegate’s decision record, Dr Abel Singh Kang, company secretary of the ASA, advised the Department on 3 February 2023, that the ASA did not invite or sponsor the applicant to come to Australia (or provide him with any documentation to support his visa application).
Bogus document: s.103
[1] The relevant parts of the NOICC are also set out in the delegate’s decision record, a copy of which the applicant submitted to the Tribunal.
The s.107 notice referred to an invitation letter purportedly from the ASA that the applicant provided to the Department, to support his Temporary Activity (Religious Work) visa application. The letter stated that the ASA wished to invite the applicant to come to Australia for a period of three months; and that the ASA would be responsible for his accommodation and other incidentals during his stay.
The s.107 notice referred to Mr Kang’s advice on 3 February 2023[2] that the ASA did not propose for the applicant to travel to Australia to work as a preacher for the organisation. The delegate inferred that ‘the invitation letter is not a genuinely issued document’, in that it is ‘counterfeit or has been altered by a person who does not have authority to do so, as defined by 5(1)(b) of the Act’.
Response to NOICC and evidence at hearing
[2] The response to the NOICC, dated 12 May 2023, provides details such as Mr Kang’s full name, the date of his advice to the Department, and confirmation that the ASA had not issued an invitation to the applicant, or offered him financial support or accommodation, or furnished him with documentation.
The applicant’s representative provided a response to the NOICC in a letter dated 12 May 2023. In essence, it contends that the applicant has acted in good faith and is the victim of unscrupulous conduct by third parties. It goes on to stress that he never intentionally provided false or misleading information, or bogus documents. It urges the Department ‘to conduct a thorough and transparent investigation’ into any suspected wrongdoing.
As discussed at hearing, the Act makes clear that a non-citizen who does not fill in an application form is nonetheless taken to do so if they cause it to be filled in, or if it is otherwise filled in, on their behalf.[3] Section 111 reinforces this: ‘To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent’. For the main part, the response addresses the circumstances in which the applicant found himself (which the Tribunal considers below).
[3] Section 98. Section 99 also states that 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 […] is taken for the purpose of section 100, paragraph 101(b) […] to be an answer to a question in the non-citizen’s application form […].
The applicant and the representative repeated these points at the hearing.
A potential issue about non-compliance
The applicant and his representative have at various times suggested that, at the time of the alleged non-compliance, the answers given on the visa application form were correct and that the ASA letter was genuine. These comments were provided in a somewhat ad hoc, speculative and sometimes contradictory matter, but essentially involve two ideas:
1)that the ASA had genuinely invited the applicant to perform religious work, and provided a letter, and that there was no non-compliance on 7 December 2022. Rather, the alleged non-compliance only emerged as an issue after the ASA changed their mind; and
2)the Department would (or should) have checked the information and the letter at the time of application, and therefore was (or should have been) satisfied itself as to these matters.
In this context, the Tribunal notes that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[4] Nonetheless, in cancellation cases, where the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is with the Tribunal (on review).[5] Hence, if the Tribunal is unable to be satisfied that there was non-compliance, the grounds for cancellation do not exist.
The ASA invitation and letter
[4] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282–283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[5] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA [1994] FCA 1534 at [14].
The applicant and representative flagged concerns about the ASA’s conduct, directly and indirectly, as follows:
§ In the NOICC response, the representative expressed the applicant’s disappointment at the ASA’s conduct, questioning its ‘commitment to supporting volunteers’ and why they provided the letter to the applicant.
§ At hearing, the representative stressed that the applicant relied on information and a letter provided to him by the ASA.
§ In response to further questions, the representative said that he considered it ‘more likely than not’ that the ASA had originally planned to sponsor the applicant and had issued the letter, and then – for reasons that are unclear to them, but that are immaterial – changed their minds.
§ In sum, the applicant and the representative are suggesting that there was no non-compliance, as of 7 December 2022. According to this reasoning, it was only after the ASA changed its mind that the question of non-compliance arose, particularly when Mr Kang of the ASA falsely denied having made such commitments.
Throughout, the applicant referred to the trust that he had placed in the ASA and the letter they provided, suggesting that they had made a direct undertaking to him. With this in mind, the Tribunal discussed at hearing the events leading up to 7 December 2022, when the applicant (or a person acting on his behalf) provided the answers on the application form and the ASA letter. The following information emerged:
§ The applicant said that an agent named Mr Govan Singh approached him at a religious event in Ludhiana, where he was performing. Mr Govan Singh told the applicant that he was impressed with his talents, and alerted him to a Sikh event in Sydney, from 24 to 26 December 2022.
§ The applicant paid Mr Govan Singh 400,000 Indian Rupees (INR) (approximately $A 7,430 at current exchange rates). Mr Govan Singh and/or an agent prepared the visa application and lodged it on the applicant’s behalf.
§ As noted above, the applicant and the representative impressed on the Tribunal that the ASA had provided him with the information and the invitation letter, i.e. they were responsible for any incorrect answers or bogus document, and should be investigated. The applicant said that he carried the original with him to Australia and presented it on arrival.
- Significantly, however, in later evidence he clarified that it was Mr Govan Singh who made all the arrangements and gave him the (purported) letter from the ASA.
§ The Tribunal noted the applicant’s comments that he had paid Mr Singh INR 400,000 and – contrary to the earlier suggestions – he received had the letter from Mr Singh, not the ASA directly. The applicant again expressed frustration as to why the ASA was denying their invitation and their letter to him.
Against this backdrop, the representative posited that the ASA might have changed its mind about the sponsorship and letter; and that Mr Kang had lied when denying any knowledge of these. He noted that the letterhead must have come from within the ASA. He later canvassed the possibility that Mr Govan Singh had collaborated with someone in the ASA, and shared the proceeds from the fraud. He stressed that, in any event, the applicant had been completely unaware.
The Tribunal found the suggestion that, as of 7 December 2022, the ASA had in fact genuinely invited him to the temple and issued an invitation letter, to be somewhat contrived. The suggestion unravelled further as the applicant started to reveal his dealings with Mr Govan Singh, including the fee that he paid him, and that Mr Govan Singh – not the ASA – was the source of the information and letter that he provided to the Department. In these circumstances, the Tribunal does not accept the suggestion that the ASA had issued an invitation and provided a letter to the applicant; and that there was therefore no incorrect answer or bogus document provided with the visa application on 7 December 2022.
Department visa processing
The applicant and the representative also contended that, before issuing the visa, the Department would have satisfied themselves as to the genuineness of the ASA invitation and the letter (or at least that they should have done so). The implication is that the Tribunal should therefore accept as plausible, or at least give the applicant the benefit of the doubt, that the answers were correct and the letter was genuine, at the time of the visa grant.
As noted in the decision record, and acknowledged in the submissions on this matter, the Department undertook integrity checks in early February 2023, which led the delegate to consider that there had been non-compliance in the visa application lodged on 7 December 2022. In the Tribunal’s view, the applicant’s suggestions that the Department – in addition to assessing the application form and supporting letter against the visa criteria – actually verified the answers and the letter prior to the visa grant, are speculative and without foundation. This may raise questions about whether there was sufficient scrutiny of the visa application, prior to the visa grant. However, the Tribunal does not consider that it raises any doubts as to non-compliance; or that it supports any suggestion that incorrect answers or bogus documents should be presumed or deemed to be correct/or genuine.
Summary

In the present case, the Tribunal finds that the answers to the questions on the subclass 408 visa application about the applicant’s proposed religious activities for the ASA, the location of the work and funding arrangements (as particularised in the s.197 notice) were incorrect. It also finds that the purported invitation letter from the ASA was a bogus document. The Tribunal has carefully considered the suggestions that (a) the ASA did in fact invite the applicant and issue the letter, and (b) that the Department must have verified these matters prior to the visa issue. For the reasons stated above, neither of these ideas raises credible doubts about the non-compliance.
The Tribunal therefore finds with confidence that there was non-compliance with s.101(b) and s.103, 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 101(2).
Consideration of prescribed circumstances
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations, and addressed in the following paragraphs.
The correct information
The correct information is that the ASA did not invite the applicant to undertake religious activities in Australia, at the Sikh Centre (Sydney), and that the ASA did not offer to provide the applicant’s accommodation, food and incidentals during his stay.
The Tribunal gives significant weight to this factor in favour of cancelling the visa.
The content of the genuine document (if any)
The document in question is a purported letter of support from the ASA, dated 2 December 2022, addressed to the visa officer (of the Australian High Commission in New Delhi). On 3 February 2023, Mr Kang of the ASA advised that they did not issue this letter, and that it is not genuine.
As noted above, the applicant disputes this, initially claiming that the ASA gave him the letter, and then clarifying that it was Mr Govan Singh who handed it to him, and that he (the applicant) had the original. The representative then questioned how someone like the applicant (or Mr Govan Singh) could obtain such a document, if it were not genuinely issued by or at least with the assistance of the ASA.
The Tribunal finds that the letter is counterfeit, and therefore meets the definition of ‘bogus document’ in s.5(1). To address the representative’s question as to how the applicant (or Mr Govan Singh) could obtain such a document, the Tribunal considers there are many means by which document fraud can be perpetrated, including by agents acting outside Australia. It is unnecessary for the Tribunal to speculate on or investigate how a particular counterfeit document has come about.
Having accepted that the ASA did not issue the invitation letter, the Tribunal is not satisfied that there is a ‘genuine document’ (which, as per the definition of ‘bogus document’, was issued in respect of another person, or altered without authorisation, or obtained on the basis of a false or misleading statement). This is therefore not a relevant consideration in favour of or against cancelling the visa. (The Tribunal notes, however, that the counterfeit letter is relevant to other considerations, such as the circumstances in which the non-compliance occurred.)
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
In the Tribunal’s view, the incorrect information and the bogus document were critical to the decision to grant the applicant the Temporary Activity (Religious Worker) visa.
§ Regulation 408.223 requires that an applicant seeks to enter and remain in Australia to provide services as a religious worker; that a religious institution invites them to do so; that the applicant will engage on a full-time basis to work in activities that are predominantly non-profit and directly serve religious objectives; and that (for stays of three months or less) that the religious institution passes the ‘support test’.
The incorrect answers addressed each of these points, and the bogus document provided documentary evidence to support these answers. As such, they played a central part in the delegate’s satisfaction that he met the criteria, and hence in the grant of the visa.
§ The delegate’s decision record notes that the visa is subject to Public Interest Criterion (PIC) 4020 being met, which requires: (1) That there is no evidence […] that the applicant has given, or caused to be given […] a bogus document or information that is false or misleading in a material particular in relation to (a) the application for the visa […]. In other words, had the delegate been aware of the incorrect answers and the bogus document, the applicant would likely not have met PIC 4020, and hence, not been eligible for the visa.
The applicant and representative, and the delegate in the decision under review, have made comments on the circumstances of the visa grant.
§ As noted above, the applicant and the representative commented that the Department would have, or at least should have, verified the information and the ASA letter that the applicant submitted on 7 December 2022, prior to the visa grant on 22 December 2022. In essence, this argument invites the Tribunal to revisit the non-compliance issue addressed above.
§ Curiously, the decision record notes: ‘I consider that the delegate was prevented from assessing the correct circumstances of the visa holder [implicitly, through the provision of the incorrect information and the bogus document]’. The Tribunal takes the cancellation delegate to mean that the incorrect answers and bogus document ‘misled’ the visa delegate as to the applicant’s true circumstances (not that they prevented the visa delegate from assessing them, for instance, through further checks).
The above comments, which go to the issue of visa processing and integrity checks, do not assist the applicant. This consideration requires the Tribunal to address whether the visa grant was in fact based, wholly or in part, on the incorrect information or bogus document; it does not invite an assessment of the Department’s processes.
The Tribunal places significant weight on this factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant and the representative contend that the applicant was the innocent victim of unscrupulous practices by the ASA and/or the Indian agent, and that this should weigh heavily against cancelling the visa. As noted above, the representative also sought an investigation into the (claimed) wrongdoing against his client, to clear his name.
Of particular relevance, they note, is that the applicant called on the ASA in Glenwood after his arrival in Australia (after they have failed to collect him at the airport on arrival). They contend this shows his belief that the ASA invitation and supporting letter were genuine, and that he had expected the ASA to deliver on their undertakings. According to submissions, the applicant had been disappointed when the ASA ‘pretended’ to know nothing about his proposed engagement there.
The Tribunal accepts that the applicant visited the ASA temple. This lends some support to his claim that he had accepted Mr Govan Singh’s assurances about the invitation and the letter; and that he believed that there was a genuine offer, or at least a prospect of being able to stay with the ASA and receive boarding and lodging, or similar support from them.
However, other circumstances relating to the non-compliance suggest that the applicant has not been honest about his proposed activities in Australia, such as the purpose and duration
§ At hearing, the Tribunal asked what services Mr Singh had provided for INR 400,000; and why the applicant had invested such a large sum for a three-month period of unpaid volunteer work abroad.
   The applicant said that the ASA had undertaken to meet his expenses during that period; he intimated that he also thought he might be able to get some money through the ASA, for instance through donations.
   The representative commented that the applicant did not have the connections to obtain invitations abroad (i.e., invitations that could form the basis for visa grants). A successful visit to Australia would form the basis for a travel history, which could lead to visa grants for other Western countries.
   The Tribunal finds unconvincing the suggestion that the applicant paid INR 400,000 for the opportunity to undertake volunteer work in Australia for a maximum period of three months, not for the purpose of securing entry into and a longer stay in Australia, but rather to establish a travel history that would facilitate his travel to other Western countries.
§ The transport arrangements from Sydney Airport to the ASA temple are relevant, as the applicant was supposed to participate in religious events shortly after his arrival in Australia.
   In the response to the NOICC, the representative wrote: ‘[…] upon landing in Australia, [the applicant] faced an unexpected problem. No one from the Sikh Association came to pick him up from the airport. Fortunately, he could make a call and seek help from a friend’.
   At hearing, the applicant said that his ‘friend’ collected him on arrival in Sydney.
§ In later comments, he explained that as he was boarding the flight in India, he received a call from a ‘temple representative’ (implicitly, a person from the ASA) whose name he did not recall, informing him that they would not be able to collect him on arrival.
§ Asked whether he already knew people in Australia, the applicant said that in fact, it was Mr Govan Singh who arranged for one of his [Mr Govan Singh’s] friends to provide transport from the airport.
   The Tribunal found the applicant’s evidence about these arrangements changeable and lacking credibility. It finds with confidence that the Indian agent Mr Govan Singh’s services for the applicant included transportation from the airport to accommodation in Sydney. It does not accept that the ASA had ever offered to provide transport, or that they changed their plans.
   The Tribunal finds that the applicant has tried to conceal both Mr Govan Singh’s role in securing his entry into Australia, including in the provision of the incorrect answers and bogus document that form the basis of the non-compliance, as well as associated arrangements.
§ The Tribunal noted that the applicant’s stated intention had been to visit Australia to undertake voluntary religious work, for a limited period (16 January 2023 to 16 February 2023, according to the visa application, and a total of three months from the visa grant).
   As noted in the delegate’s decision record, the applicant has lodged applications for a Student (Vocational Educational Sector) (subclass 500) visa, on 16 February 2023; and a Temporary Activity (Australian Government Endorsed Event) (subclass 408) visa on 18 April 2023.
   Meanwhile, he had obtained the Bridging A visa in association with a student visa application; and was seeking review of the visa cancellation.
   When asked what his intentions were, the representative stated that the applicant now wished to have the visa cancellation revoked, as an adverse migration history could jeopardise any later efforts to obtain visas for travel abroad. The applicant indicated that he would like to visit countries such as the USA, Canada and the UK; he had already made enquiries with a Sikh temple in Toronto.
   Later, the representative signalled that the applicant wished to depart Australia holding a substantive visa; he again presented this as part of the applicant’s wish to explore future migration options to Western countries.
§ He flagged as one possibility a COVID-19 Pandemic event visa (subclass 408). In response to the Tribunal’s questions, the applicant said that he has an offer of employment as a kitchenhand; he would like the opportunity to earn money to pay for his airfare to India and to repay the friend with whom he is staying.
§ In relation to the applicant’s claim that he genuinely believed that he had been offered temporary work with the ASA, the Tribunal asked him whether he had pursued Mr Govan Singh and/or the ASA for having duped him. He said that he had not.
All of these factors, taken together, lead the Tribunal to disbelieve that the applicant paid Mr Govan Singh a large fee to enable him to visit Australia for volunteer religious activities (for up to three months); and that he invested this money in order to establish a travel history that would enable him to eventually visit other Western countries. Instead, they strongly suggest that the applicant engaged Mr Govan Singh to secure an Australian visa; and that the applicant saw a religious activities visa as a means to obtain entry into Australia, and to live and work here for a longer period, in paid employment unrelated to any religious activities.
In this context, the Tribunal finds that the applicant left it to Mr Singh to provide the information and documentation required for the visa; and that he (the applicant) was willing to go along with the information that Mr Govan Singh entered on the application form and the letter that he provided, without further enquiry or confirmation.
All of the above indicates to the Tribunal that the applicant may not have had specific knowledge of or direct involvement in the non-compliance, and that he may have expected or hoped for the ASA to provide him with assistance on arrival. However, it finds that he was not truthful abut the purpose and proposed duration of his stay in Australia, and was aware of the possibility that Mr Govan Singh had provided incorrect answers and/or a bogus document on his behalf.
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant has moved from Sydney to Cunnamulla, Queensland, and is staying with a friend who is a volunteer in a Sikh temple. The representative commented that the Sikh community helps each other in this way, in return for volunteer work. In response to further questions, the applicant said that there is no Sikh temple in Cunnamulla. Rather, he undertakes the volunteer work in the form of household chores. His friend provides him with food and accommodation; there is no exchange of money. The Tribunal found the applicant’s responses guarded and is not satisfied that he was giving a complete and honest account of his living or working arrangements.
As noted in the delegate’s decision record, the applicant has made subsequent visa applications, on 16 February 2923 for a Student (Vocational Educational Sector) visa, and on 18 April 2023 for a Temporary Activity (Australian Government Endorsed Event) subclass 408) visa. At hearing, the representative referred to a Temporary Activity (Covid Pandemic) visa. The applicant said that he had identified an offer of employment as a kitchenhand. He hoped to undertake paid work, in order to pay for his airfare to India, and repay the friend with whom he is staying.
The Tribunal places moderate weight on this factor against cancelling 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
The non-compliance occurred on 7 December 2022. The applicant claims to have become aware of it only after the ASA failed to collect him at the airport in late December 2022, and when he attended the ASA in Glenwood (also in late December 2022), only to learn that they knew nothing (or ‘pretended’ to know nothing) about their invitation and letter.
Section 105 requires the applicant to notify the Department, as soon as practicable of any incorrect answers; and s.104 requires him to notify any change in circumstances. There is no evidence that he has done so. Also, the applicant contends that there were in fact no incorrect answers (for the reasons stated above).
Given the relatively short timeframes, the Tribunal places a little weight on this consideration in favouring of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Tribunal
There are no other known instances of the applicant’s non-compliance with ss.101-105. It is therefore an irrelevant factor.
The time that has elapsed since the non-compliance
The non-compliance set out in the s.107 notice occurred in December 2022, i.e. almost a year ago. This is a short period. The applicant’s account of his current arrangements in Cunnamulla – which the Tribunal does not consider reliable – is that he is currently staying with a fellow Sikh, performing household chores on a volunteer basis. His other comments, namely that he would like permission to work as a kitchenhand, in part to repay this friend, suggest that this is not a wholly charitable arrangement and that the applicant may already be working without permission. In any event, the available evidence does not suggest that the applicant has established close ties in the community.
The Tribunal places very little weight on this factor against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known instances of the applicant breaching the law. As this is a minimum expectation of non-citizens applying for or holding visas, the Tribunal places minimal weight against cancelling the visa.
Any contribution made by the holder to the community
The applicant said that he undertakes ‘volunteer work’ in the form of household chores for the person with whom he is staying, in Cunnamulla. He provided no further details of this person’s identity, or the arrangement. The Tribunal is not satisfied that the applicant has been honest about this, or that any such household work is a contribution to the community,
Tribunal places minimal weight on this factor against cancelling the visa.
Other relevant circumstances
While the factors set in r.2.41 out must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s.140.
There are no persons who would be affected by consequential cancellation.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations or family unity obligations.
The applicant indicated that he has applied for a Temporary Activity visa; he holds a Bridging C visa granted in association with that visa application. The cancellation would have no impact on his current visa status, and would therefore not result in his removal from Australia.
The applicant has not raised any matters to suggest that Australia has non-refoulement obligations in respect of him. At the hearing, the applicant and representative confirmed that there are no such claims. The representative added (in the context of stating that the applicant was a genuine entrant as a religious worker) that he could otherwise have disappeared and lodged a protection visa application, as other people do. The Tribunal finds that the visa cancellation would not result in the breach of Australia’s non-refoulement obligations under any international agreements.

The applicant has not identified any family members in Australia, and there is nothing to suggest that he has any children here. Therefore, the visa cancellation would not result in any breach of Australia’s obligations under the Convention on the Rights of the Child (CROC).
The Tribunal gives this consideration slight weight in favour of cancelling the visa.
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 applicant currently has an ongoing application for a Temporary Activity (Australian Government Endorsed Event) visa, and holds a Bridging C visa in association with this application. While the Bridging A visa cancellation potentially results in the applicant becoming unlawful and being liable to detention and removal, in practice he will continue to hold his Bridging C visa while the temporary activity visa application is ongoing.
If the visa is cancelled, Public Interest Criterion (PIC) 4013 may apply, and prevent the grant to the applicant of certain visas for a period of three years from the date of the visa cancellation (in this case, till 23 June 2026). This would be relevant to his ongoing Temporary Activity subclass 408 visa application, unless the applicant met all the other criteria and were also able to satisfy the Minister that there were compassionate or compelling circumstances to justify the visa grant, as set out in PIC 4013(1).
A person who has had their visas cancelled since their last entry into Australia may, under s.48(1)(b)(ii), only make a valid visa application for certain classes of visa which have been prescribed by reg 2.12 of the Migration Regulations. These include partner, protection and bridging visas, among others. The applicant has not indicated any intention to make any such application.
In sum, the visa cancellation would likely prevent the grant to the applicant of a temporary activity visa (assuming he met the other criteria), and prevent his making any further applications for the kind of temporary visa with work permission that he expressed interest in. This would obviously jeopardise his plans to stay in Australia with work permission, and may cause some hardship.
The Tribunal places slight weight on this against cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal accepts that the applicant’s ambitions to stay and work in Australia may suffer a setback, if the visa is cancelled, and that he may suffer some financial hardship.
During this review, the applicant and the representative emphasised his wish to seek ‘justice’ in relation to his having been cheated. One reading of this is that the applicant accuses the ASA of having reneged on their offer to him; that he insists on a thorough investigation of how this came about; and that he wishes to remain in Australia (with work rights) in order to assist in any enquiries.
The Tribunal considers this contrived and does not accept it as genuine. For the reasons stated above, it finds that Mr Govan Singh (or an associate) is primarily responsible for the non-compliance; although it cannot rule out that someone with links to the ASA assisted him in some manner (for instance, by providing a sample letter or letterhead). The applicant may not have known the details of the incorrect answers or the bogus document, but was aware that Mr Govan Singh was misrepresenting the purpose and proposed duration of his stay; and that he was aware of the possibility that the Australian authorities would detect the incorrect information and bogus document. As such, the Tribunal does not accept on the available material that the applicant genuinely wishes to remain in Australia to seek justice or assist with any fraud investigation. It places no weight on this consideration.
Summary
The Tribunal has considered the totality of the applicant’s circumstances. Having found that there was non-compliance, it has weighed the considerations against and in favour of the visa cancellation. It has had regard to the applicant’s and his representative’s oral and written submissions, and his circumstances, together with the prescribed circumstances set out in reg. 2.41 and other relevant matters.
It has decided to place weight on the significance of the non-compliance, the applicant’s lack of candour as to his intentions, and the limited ties he has established in the community during his stay of less than one year. These outweigh other considerations, such as the applicant’s disappointment that the ASA did not offer him work, accommodation and other support on his arrival here (as Mr Govan Singh may have led him to believe), and that his financial outlay has not resulted in longer-term residency and work opportunities in Australia.
After careful consideration of the prescribed circumstances and other relevant matters, the Tribunal is of the view that the visa should be cancelled.
Conclusion
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 010 (Bridging A) visa.
James Silva
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.
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 3996

17 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Appeal