Lathwal (Migration)

Lathwal (Migration) [2022] AATA 3957 (8 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sarita Lathwal
Mr Ashish Lathwal
REPRESENTATIVE:  Mr Jaiminkumar Darbar (MARN: 1575637)
CASE NUMBER:  2012699
HOME AFFAIRS REFERENCE(S):          BCC2018/4112750
MEMBER:Christine Kannis
DATE:8 October 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 500 (Student) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 08 October 2022 at 11:30am
CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – incorrect information and bogus document given in visa application – access to sufficient funds – bank deposit by parents and statement of account – integrity checks showed account not held by applicant – discretion to cancel visa – claim of fraudulent completion of form by local agent – genuine documents provided in response to department’s notice – application form does not show appointment of agent – not necessary to determine whether applicant provided or was aware of incorrect answers – good study record, completion of one course and near-completion of second – intention to return after completing study – member of family unit – automatic cancellation of second applicant’s visa with no jurisdiction to review – child born after cancellation decision deemed to have been granted bridging visa – potential hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 78(2), 98, 100, 101(b), 103, 107, 109(1), 111, 140(1), 359AA, 375A
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 500.214
CASE
MIAC v Khadji (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 first named applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicants did not comply with s 101(b) and s 103 of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicant appeared before the Tribunal by MS Teams on 5 September 2022 to give evidence and present arguments.
The applicants were represented in relation to the review.
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 (the Notice of Intention to Consider Cancellation), 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.
the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements. In making this determination the Tribunal notes that on 26 June 2020 the Department sent an email to the applicant that it needed to send her important correspondence about her Student (subclass 500) visa granted on 12 June 2018, and requested that she provide her current address and email address. On 26 June 2020 the applicant replied by email and provided her current address and email address. The s 107 notice dated 29 June 2020 was sent to the applicant at these addresses.
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 sections 101(b) and 103 of the Act in the following respects:
Alleged non-compliance with s 101(b)
Section 101 provides that visa applications are to be correct, and paragraph (b) specifically requires that no incorrect answers are given or provided.
The non-compliance identified as non-compliance with section 101(b) was:
- In the section entitled Funding for Stay the applicant responded to questions as follows:
Q:       Do all applicants in this application confirm that they each have access to sufficient funds to support themselves for the total period of stay in Australia and understand that further evidence of funds may also be requested?
A:        Yes
Q:       Show how each applicant included in the application will support themselves in Australia to meet living, tuition and school costs.
A:        Financial support from an individual
- In the section entitled Financial support from an individual the applicant responded as follows:
Will the funds be provided by an individual other than the applicant? Yes
Relationship to the applicant:            Parent
Funding type:   Deposit in financial institution
Approximate value in
Australian dollars (AUD):                    76840
Financial institution:   PUNJAB NATIONAL BANK
- In the section entitled Declarations the applicant responded Yes to the following statements (in part):
Warning: Giving false or misleading information is a serious offence.
The applicants declare that they:
Have provided complete and correct information in every detail on this form, and on any attachments to it.
Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
Alleged non-compliance with s 103
Section 103 provides that bogus documents are not to be given. The phrase ‘bogus document’ is defined in s 5(1) of the Act.
A ‘bogus document’ is defined in s 5 of the Act as a document the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
The non-compliance identified as non-compliance with section 103 was:
·The Department conducted integrity checks on a Statement of Account (account number 55008971862) held in the applicant’s name, Sarita D/O Ramehar provided with her student visa application. The State Bank of India was contacted to verify the information contained in the Statement of account and it confirmed that bank account number 55008971862 was not held in the name of Sarita daughter of Ramehar.
Response to the s 107 notice
On 13 July 2020 the applicant responded to the s 107 notice and provided the following information:
·She does not have any knowledge of the Statement of Account from State Bank of India with INR 83,761.78 with Account number 55008971862 under the name of Sarita daughter of Rahemar or the AUD $76,840 in Punjab National Bank. The documents submitted to the local agent in India were different.
·She said : We submitted other bank account statement (my father’s salary statement from State Bank of India), PF statement of my father with balance of more than INR 800,000 at that time, our uncle’s bank statement of INR 700,000 etc. We also have properties in India such as house, land, gold, insurance policies worth of AUD $250,000 (INR 12,500,000) etc.
·She has tried to contact the agent who submitted the visa application on her behalf, Mr Ram Singh, however he has not responded.
In her response to the s 107 notice the applicant said she and her partner come from respectful families. She has completed a bachelor’s degree in business administration in India. She worked for some time in India and came to Australia to pursue post graduate studies in business administration. She commenced her studies and after six months changed her course provider and enrolled in a dual degree program. With the new provider, she has completed a Master of Professional Accounting and has only two subjects remaining to complete a Master of Business Administration. She has always been a genuine student. She and her partner have never breached any visa conditions including the working hours condition. They don’t have any bad credit with any financial institutions or any criminal record. She has paid the fees for all subjects in Australia.
When responding to the s 107 notice the applicant provided copies of documents she claimed were provided to her agent in India at the time of her Student visa application, as well as other supporting financial documents. The documents provided were:
·State Bank of India bankbook slips for account number 10734437486 in her father’s name (Rammehar son of Pirthi) showing transactions between 6 May 2016 and 25 April 2018
·Statement of general provident fund account for 2017-2018 in her father’s name (Ram Mehar Sing) showing a closing balance of INR 833,596
·Statement of general provident fund account for 2018-2019 in her father’s name showing a closing balance of INR 10,088,875
·Kheri Naur Branch bank statement for account number 002234001001312 dated 22 March 2019 with a closing balance on 29 March 2019 of INR 715,840. The applicant stated the account belongs to her uncle.
·Punjab National Bank, Confirmation of Deposit sent from the applicant’s parents (Rammehar & SMT Santosh) to VPO Purkhas Rathee, The Ganaur, Ganaur Sonepat, Haryana. Deposit of INR 500,000 dated 2 July 2020
·State Bank of India Statement of Account in her father’s name for account number 10734437486, dated 13 July 2020 showing a cleared balance of INR 2894.42
The applicant also provided the following documents when responding to the s 107 notice:
·Certificate of Proficiency in English from the University of Newcastle, made out to Sarita Lathwal on 27 August 2018
·Advanced English of Academic Purposes course results from the University of Newcastle for course date from 23 July to 24 August 2018
·Statement of Academic Record for courses in ELICOS and Master of Business Administration at the University of Newcastle, dated 17 January 2019
·Notification of results for applicant’s current enrolment in Master of Professional Accounting from Holmes Institute (expected completion date 16 June 2020)
·CoEs for Master of Professional Accounting and Master of Business Administration
·Payment receipts from Holmes Institute for the applicant’s enrolment in Master of Professional Accounting and Master of Business Administration;
·Income statement from the Australian Taxation Office for Sarita Lathwal, generated 7 July 2020;
·PAYG payment summaries for Sarita Lathwal for year ending 30 June 2019;
·Bupa overseas health cover membership for Sarita Lathwal (passport number [Number 1]) and Ashish Lathwal;
·Passport biodata page scans for Sarita Lathwal and Ashish Lathwal (passport number [Number 2]);
Section 375A certificate
The Department file contained a certificate issued under s 375A of the Act. If a certificate is validly issued under s 375A of the Act, the Tribunal must do all that is necessary to ensure the document or information the subject of the certificate is not disclosed to any person.
A certificate issued under s 375A of the Act must certify that the disclosure other than to the Tribunal of any matter contained in the document or the information would be contrary to the public interest for any reason specified in the certificate.
To be valid, the certificate must specify a public interest reason for non-disclosure, the information must meet the description of being against the public interest to disclose and the certificate must be signed.
Prior to the hearing the Tribunal provided a copy of the certificate to the applicant and her representative and advised it considered the certificate to be valid. On 5 August 2022 and 29 August 2022 the Tribunal invited the applicant to comment on the validity of the certificate. No submissions were received prior to the hearing and none were made during the hearing disputing the validity of the certificate.
The certificate stated that disclosure of the information would be contrary to public interest because: Disclosure of the information would compromise the integrity and effectiveness of the lawful methods for detecting and preventing visa fraud but also may endanger life and physical safety of the established contact who assisted in the verification. Additionally, information provided by the established contact to the Department was provided ‘in confidence’ without the consent to distribute to the review applicant.
At the hearing the Tribunal advised that while it accepted the public interest was not served by the actual release of the folios containing the allegation, it considered that in the interests of procedural fairness the applicant had a right to be informed of the ‘gist’ of the information and that it would put the information to her for her comment or response. Utilising the procedure under s 359AA of the Act, the Tribunal put to the applicant that the information protected in this case included an allegation received by the Department that she had provided fake financial documents in support of her visa application. The applicant’s response to the allegation is set out in her evidence (below) during the hearing.
Evidence at hearing
The applicant told the Tribunal that she was the victim of a fraudulent local agent in India. She said she told the agent that the financial support to be provided from an individual would be from her parents and in support of this she provided documents evidencing funds held in an account by her father, her father’s salary statement and provident fund statements showing funds held by her father and by her uncle. She told the Tribunal that she did not tell the agent that her father had funds in a Punjab National Bank account and did not provide the amount of AUD$76,840 as the amount deposited in that institution.
The applicant told the tribunal that she did not need to provide false documents because she had sufficient funds in her bank account and her parents had sufficient funds in a bank account. When questioned further about her own funds at the time of application, the applicant said she did not have much money in her own bank account at that time. When questioned about the reason she provided financial information about her uncle at the time of application, she said she provided it just in case more was needed.
In her response to the s 107 notice the applicant provided financial documents which included general provident fund statements in her father’s name which showed at the time the application was submitted, regular salary deposits were made to him. The opening balance in April 2018, just prior to the time of application, was indicated to be INR 833,596. The Tribunal notes this is significantly less that the amount of AUD$76,840 submitted in the application.
As noted, the applicant said she had sufficient funds to support each of the applicants stay in Australia because she had access to funds held by her father and her uncle.
The Tribunal noted that the Application for a student visa form does not nominate an authorised representative to receive written correspondence on behalf of the applicant. The form indicates that email is to be sent to [an email address]. When asked about this at the hearing the applicant said the form had been completed by a local agent. She said following the cancellation decision she discovered that he was not a registered agent. She said the agent created the email address and created the supporting documentation. She said her only involvement in submitting the form was when the agent asked her to sign “a piece of paper”. In response to the Tribunal asking what she understood the document to be, she said it was a declaration and she was asked to sign at the bottom of the page. In response to the Tribunal asking whether she read the document and in particular the declaration, she said she “blindly” followed the agent’s instruction without reading the document.
Regarding the State Bank of India Statement of Account (account number 55008971862) in her name submitted with the visa application, the applicant did not dispute that the document was bogus. The document indicated that the applicant had a cleared balance of INR 83,761.78 on 28 May 2018.
The applicant told the Tribunal that after receiving the s 107 notice she attempted to contact the agent in India five or six times. She said she spoke to him and asked him the reason he provided the financial information of her father’s funds in the Punjab National Bank and the Statement of Account in her name. She said he told her he would need to check. She said he then realised he had done something wrong, and he stopped responding to her attempts to contact him. She said her father then went to the agent’s premises two or three times however he had disappeared. In support of her contention that the agent was responsible for providing the incorrect information and the bogus document, the applicant provided a newspaper article from an Indian newspaper. The Tribunal was not provided with a translated copy of the article and the applicant said it was about the existence of fraudulent agents in India.
The applicant did not dispute that the information in the visa application that her father had funds in the Punjab National Bank in the amount of AUD $76,840 was incorrect. Her explanation for the incorrect information was that an agent had fraudulently completed the form and she had signed a declaration without reading the contents.
As noted, the Application for a student visa form does not indicate that applicant had appointed an agent and indicates that she is a self-registered user.
The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers was done without her knowledge or consent. However, the Tribunal is of the view that by instructing an agent to prepare and lodge the application for her, the applicant created an agency arrangement between herself and the agent preparing her application.
Further, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s 98 of the Act states that if the applicant did not fill in her application form, she is taken to do so if she causes it to be filled in or if it is otherwise filled in on her behalf. Section 100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s 111 states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers.
Conclusion on non-compliance

On the evidence before it, the Tribunal finds that when read together, the answers under Funding for Stay and Financial support from an individual in the Application for a student visa form indicate that the applicants each have access to sufficient funds to support their stay in Australia because of funds of AUD $76,840 held by the applicant’s parent in the Punjab National Bank. The applicant’s parent did not have funds of AUD $76,840 in the Punjab National Bank and therefore her answers were incorrect.
Accordingly, the applicant has not complied with s 101(b) as described in the s 107 notice.
The Tribunal further finds that the State Bank of India Statement of Account (account number 55008971862) in the applicant’s name provided with the application is a bogus document because the Department’s verification process determined that the document was counterfeit within the meaning provided by paragraph (b) of section 5(1) of the Act.
Accordingly, the applicant has not complied with s 103 as described in the notice.
Further non-compliance with s 101(b) of the Act was identified and particularised in the s 107 notice because the applicant answered Yes to the declarations that she agreed to provide correct and up to date information. The information regarding her access to funds in her parent’s name in a Punjab National Bank account and the State Bank of India Statement of Account (account number 55008971862) in her name showing funds INR83,761.78 was incorrect information. The Tribunal further finds the applicant declared in her application form that the information provided was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) and s 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response to the s 107 notice and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations).
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadji (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has taken the reg 2.41 prescribed circumstances as well as any other relevant facts and matters, including the applicant’s responses to the s 107 notice into account when considering the discretion.
Prescribed circumstances
The correct information
The correct information is that:
· each of the applicants did not have access to sufficient funds to support their stay in Australia because of funds AUD $76,840 in a Punjab National Bank account held by the applicant’s parent;
· the applicant did not have a cleared balance of INR 83,761.78 on 28 May 2018 in a State Bank of India Account number 55008971862 in her name.
The correct information was not provided. The Tribunal gives this some weight in favour of exercising its discretion to cancel the visa.
The content of the genuine document (if any)
This consideration does not apply in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant contended in her response to the s 107 notice that:
On top of everything, we had a knowledge at the time that we do not need to provide financial documents as our university was Level 1 University and India country was Level 2 for student visa in year 2018. So we do not need to provide much financials though we were financially sound to support study, accommodation and living and travel related expense
During the hearing the applicant gave evidence which was not materially different to the information provided in her response to the s 107 notice in this regard.
The Tribunal notes that cl 500.214 requires the applicant to meet certain financial requirements. If the applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in an instrument: cl.500.214(3). All primary applicants must also satisfy the Department that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia, as well as the costs and expenses of any members of their family unit who will be in Australia: cl.500.214(2). The Department must also be satisfied that the applicant will have genuine access to the relevant kinds of funds. These requirements were relevant in 2018.
The Tribunal finds that the decision to grant the visa was based partly on the incorrect information and the bogus document.
The Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant provided an incorrect answer on her visa application form and also provided a bogus document.
In her response to the s 107 notice and in her evidence to the Tribunal at the hearing, the applicant contended that the incorrect information and the bogus document were provided by a fraudulent agent without her knowledge.
The applicant told the Tribunal she was a victim of fraud by an agent and referred to the newspaper article provided to demonstrate that there are fraudulent agents in India.
As noted, the visa application form indicates that the applicant was a self-registered user and there was no indication that she had appointed an agent.
The delegate stated:
I consider the visa holder’s claims that the agent provided the bogus document without her knowledge implausible. It is also unclear why the agent would knowingly submit a bogus document in the place of a supposed genuine document that was already in existence when they pertain to the same information. I find that rather, the incorrect information and bogus document were knowingly provided for the purpose of achieving an immigration advantage, of which the visa holder has now benefitted in Australia for over two years.
In response to the Tribunal asking the reason an agent would provide correct information and a bogus document when she claimed correct information and genuine documents had been provided to the agent, the applicant claimed to have contacted the agent and asked the reason. She said he advised he would have to ‘check’ and he has now disappeared without responding to her query. No evidence to substantiate her claim that she contacted the agent or that her father attended the agent’s premises was provided.
The Tribunal finds the applicant’s submission that her agent provided the incorrect information and bogus document problematic. The Tribunal is of the view that the applicant had the responsibility to learn what evidence was being submitted on her behalf. The applicant could have made inquiries with the agent, particularly before the application was made, and she could have made a request to check the entire application before its lodgement. In the Tribunal’s view, it was her responsibility to do so to ensure that any information that was being submitted on her behalf was correct and accurate. The applicant told the Tribunal that she signed a document she described as a declaration. She said she did not read the document and blindly followed the agent’s instructions. If so, the Tribunal finds that the applicant was negligent in her actions and recklessly indifferent in her dealings with the agent.
Regarding the documents the applicant said were provided at the time of application (see paragraph 17 hereof and the documents provided in response to the s 107 notice (see paragraph 19 hereof), the Tribunal accepts that the applicant has provided evidence of her father’s and her uncle’s financial circumstances in response to the s 107 notice. The documents were not provided at the time of application and the Tribunal gives this evidence no weight against exercising its discretion to cancel the visa because as noted, it was the visa applicant’s responsibility to ensure she was aware of the document/s lodged in support of her application.
Regarding the newspaper article provided, the Tribunal was not provided with a translated copy and cannot know what the article says in relation to fraudulent agents. Accordingly the Tribunal gives the newspaper article no weight in favour of or against its discretion to cancel the visa.
The Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.
The present circumstances of the visa holder
The applicant has been residing in Australia with her partner since June 2018. They have a 14-month-old daughter.
The applicant told the Tribunal that she works in a restaurant 10 to 15 hours per week and when she is not working, she looks after her daughter. She said her partner works 20 hours per week in the restaurant. She said their combined employment income pays for their rent and groceries and if they need financial assistance, they can ask their family.
In her response to the s 107 notice the applicant said she and her partner have never breached any visa conditions and they don’t have bad credit with any financial institutions or any criminal record.
The applicant told the Tribunal that she has two more units to undertake to complete a Master of Business Administration. She said she cannot complete the two units in India. She said on completion of the degree she intends returning to India. She said her father passed away earlier this year and she wants to return to support her mother. The applicant said her intention is to work in a multi-national company and after five or six years she wants to open her own business, possibly in an accounting related field.
The Tribunal also accepts that the impact of cancellation of the visa is that the applicant has been unable to complete her Master of Business Administration course. The Tribunal gives this some weight against exercising its discretion to cancel the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal is not aware of any other breaches of the law since the non-compliance.
The Tribunal gives this consideration a little weight against cancelling the visa.
The time that has elapsed since the non-compliance
The applicant was granted her visa on 12 June 2018 and provided the bogus document and incorrect answers on her application form which was submitted to the Department on 25 May 2018.
The Tribunal accepts that it is over four years since the events of non-compliance occurred, however does not consider this to be a significant amount of time.
The Tribunal gives this factor some weight in favour of its discretion to cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal accepts the applicant’s claims that has no criminal record.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any contribution made by the holder to the community
The applicant told the Tribunal that she works in a restaurant and looks after her young daughter. The Tribunal accepts that the applicant works and when responding to the s 107 notice she provided PAYG payment summaries for the year ending 30 June 2019 showing tax was withheld from her gross payments.
The applicant told the Tribunal that currently she does not have time, but if she is given an opportunity she will contribute to the community using her accounting skills.
There is nothing before the Tribunal to indicate that the applicant makes any significant contribution to the community.
Overall, the Tribunal considers that this factor weighs neither in favour of cancellation of the visa nor against cancellation of the visa. Rather, the Tribunal considers this factor to be neutral to its decision-making process.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.
Other considerations
As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109.
Whether there would be consequential cancellations under s 140
The applicant’s partner is a secondary visa holder. Cancellation of the applicant’s visa means her partner will be subject to consequential visa cancellation of his visa, which was granted to him as a dependent family member.
The Tribunal accepts that there would be a consequential cancellation in this case. The Tribunal gives this factor some weight against exercising its discretion to cancel the visa.
Following the hearing the Tribunal received the following request from the applicant:
Please find the attached documents for the newborn child. We have sent multiple request to the immigration department and recently immigration has issued the bridging visa. We have called AAT to add the child and they have requested us to send an email to this email address.
A Birth Certificate for the applicant’s child, born on 12 June 2021 was also provided. The Department’s records show that the applicant and her partner both held Bridging visas on that date and therefore child is deemed to have been granted two Bridging visas at the time of her birth on the same terms and conditions as her parents’ visas (s 78(2) of the Act). As the child was born after the cancellation decision, no cancellation decision has been made in relation to the child.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa is cancelled, she will be an unlawful non-citizen and liable for detention under s 189 of the Act and removal under s 198 of the Act. Under s 197C of the Act, for the purposes of removal under s 198 it is irrelevant whether Australia has non-refoulement obligations or whether there has been an assessment of Australia’s non-refoulement obligations.
The applicant may be subject to s 48 of the Act preventing her from applying for further visas, she may not be permitted to work if granted a temporary visa for a specified period and she may be held in immigration detention.
Whilst these are all serious consequences, the Tribunal does not give them weight against cancelling the visa because they are the intended consequences of cancellation.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant is a citizen of India and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations.
The Tribunal considers this factor neutral in the exercise of its discretion.
Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions involving children, the best interests of the child shall be the primary consideration. In this case the applicant and her husband have a child who was born in Australia. The child is 14 months old.
Apart from a possible restriction on meeting visa requirements in the future, the applicant did not contend that her child’s interests may be adversely affected by the visa cancellation. She said it was her intention to return to India after undertaking two remaining units to complete her Master of Business Administration.
There is no suggestion that if the cancellation were to remain, that this family would be separated.
The Tribunal considered whether to cancel or not cancel the applicant’s visa would be in the child’s best interests. Although it was not contended by the applicant, it may be that to not cancel the visa is in the child’s best interests however in the Tribunal’s view, the child’s interests would not be significantly affected due to the applicant’s evidence that she plans to return to India in the near future in any event.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

100. The applicant told the Tribunal that it is her dream to work for a multi-national company in India. She said if she is found not to meet Public Interest Criterion 4020, she will have a black mark against her profile. She said she will not be able to work for a multi-national company without a Master of Business Administration qualification and will not be able to apply for a visa to enter any other country. In this regard the applicant mistakenly referred to Public Interest Criterion 4020 rather than cancellation of her visa for non-compliance with s 101(b) and s 103 of the Act as the reason for possible restrictions on future visa applications. As noted, such restrictions are an intended consequence of cancellation and the Tribunal gives it no weight against cancelling the visa.
101. The Tribunal notes that in her response to the s 107 notice the applicant said she had completed a bachelor’s degree in business administration in India and has completed a Master of Professional Accounting in Australia. There was no evidence before the Tribunal to substantiate the applicant’s contention that she will not be able to work for a multi-national company without a Master of Business Administration qualification. Accordingly, the Tribunal gives this evidence minimal weight against cancelling the visa.
102. The applicant told the Tribunal that if she is found to not meet Public Interest Criterion 4020, it may impact on whether her child will be permitted to enter Australia if she chooses to do so in 18 years’ time. In this regard the applicant mistakenly referred to Public Interest Criterion 4020 rather than cancellation of her visa for non-compliance with s 101(b) and s 103 of the Act as the reason for possible restrictions on her child’s future visa applications. The possibility of the applicant’s child facing such restrictions in the future is a potential hardship which may be caused and the Tribunal gives this consideration a little weight against cancelling the visa.
103. The delegate noted that on 18 May 2020 the applicant submitted an application for a further Student visa and on 14 July 2020, her partner also lodged an application for Student visa, with the applicant included as a dependent applicant. The delegate said:

I acknowledge that in the event a decision is made to cancel the visa that this will likely cause the visa holder and her husband a degree of hardship. However, it is unclear why the visa holder’s husband has also lodged a separate Student visa application with the visa holder as the dependent when the visa holder already has a pending application for a Student visa on account of her ongoing studies at Holmes Institute. I find the existence of two separate visa applications to be conflicting and raises questions as to what their intentions are in Australia.

104. The Tribunal asked the applicant the reason her partner applied for a Student visa. She referred to having 28 days to take action and said she was confused and stressed when the application was made. She said the application was subsequently withdrawn.
105. The Tribunal asked the applicant whether her partner intended to undertake study in Australia. She said they had discussed his future study however he told her to complete her study after which they could discuss his study. The Tribunal asked the applicant whether this study would be undertaken in Australia. Her response was that her partner would undertake any further study in India.
106. The Tribunal acknowledges that the cancellation of the applicant’s visa will cause some hardship because she has not completed the Master of Business Administration course and it is likely that this qualification would assist her in gaining future employment. However as noted, she has already attained business related qualifications in India and Australia. The Tribunal acknowledges that the cancellation of the applicant’s visa may cause some hardship to the applicant’s partner however no evidence was provided to demonstrate this would be the case. The Tribunal gives this consideration some weight against cancellation.
107. In her response to the s 107 notice the applicant said she has paid the fees for all subjects in Australia. The Tribunal gives this consideration some weight against cancellation.
108. The representative made the following submissions:

Since arriving in Australia the applicant has completed 14 out of 16 subjects towards a Master of Business Administration. She has paid her tuition fees without any financial trouble.

The applicant has no character issues.

The activities of some agents in India are fraudulent.

The applicant signed a document when submitting the application because she was memorised by the agent. The agent created an email address for the applicant and altered documents.

Conclusion on the exercise of the discretion
109. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101(b) and s 103 of the Act.
110. The Tribunal acknowledges that four years have passed since the non-compliance. The Tribunal accepts that the applicant’s partner’s visa is a consequential cancellation. The Tribunal accepts that hardship may be caused to the applicant and her partner if the visa is cancelled. The Tribunal accepts that the applicant has no other breaches of the law and no criminal record. These are factors that suggest that the visa should not be cancelled.
111. The Tribunal accepts that if the applicant’svisa is cancelled, and unless she is granted another visa, she may be subject to detention, although the applicant may be eligible to apply for othervisas.
112. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.
113. The applicant’s non-compliance may cause her and her partner some hardship however the Tribunal considers the applicant’s provision of incorrect information and a bogus document is not outweighed by the considerations before it. The Tribunal places greater weight on the fact that the decision to grant the visa was based partly on incorrect information and a bogus document provided to the Department by the applicant.
114. The Tribunal has considered the factors identified by the legislation and policy as well as the evidence available in relation to the applicant’s circumstances and has decided to exercise its discretion to cancel the visa.
115. 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
116. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 500 (Student) visa.
117. The Tribunal has no jurisdiction with respect to the other applicant.
Christine Kannis
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.

[2022] AATA 3957

8 October 2022

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