Maninder Singh (Migration)

Maninder Singh (Migration) [2023] AATA 2041 (3 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Maninder Singh
REPRESENTATIVE:  Mrs Aarti Khatri (MARN: 1791220)
CASE NUMBER:  2207817
HOME AFFAIRS REFERENCE(S):          BCC2022/318389
MEMBER:Christine Kannis
DATE:3 February 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 03 February 2023 at 7:02 am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – employment history – bogus document – employment reference letter – payslips – consideration of discretion – deliberate non-compliance – grant of visa based partly on incorrect information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 99, 100, 101, 103, 107, 109
CASES
MIAC v Khadji (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s 101(b) and s 103 of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 January 2023 to give evidence and present arguments.
The applicant was 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. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements. In making this determination the Tribunal notes that on 21 March 2022, the Department sent the applicant an email advising that it needed to send him important correspondence about his visa and requested that he provide his current address and email address. On 21 March 2022, the applicant replied by email and provided his current address and email address. The s 107 notice dated 31 March 2022 was sent to the applicant at the email address he provided.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
Background
In his Application for a Student Visa lodged on 16 December 2021, on pages 8 and 9, under the heading Employment history details, the applicant provided the following information:
Employment status: Employed
Is this the applicant’s current employment situation: Yes
Employer/business details
Give detail of the employer/business:
Organisation name: Bru and Blu CAFE
Industry type: Accommodation and Food Services
Contact person details
Give details of the contact person within the organisation.
Family name: Kaur
Given names: Amrinder
Business phone:
Mobil/Cell phone: 919641896419
Position details
Position: Guest Relation Officer
Date from: 01 Jan 2019
In his Application for a Student Visa lodged on 16 December 2021, on pages 14 and 15, under the heading Declarations, the applicant provided the following answers:
Have read and understood the information provided to them in this application.
Yes
Have provided complete and correct information in every detail on this form, and on any attachments to it.
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. Yes
In support of his application for the visa, the applicant submitted the following documentary evidence to support his claimed employment history:
(i)To Whom So Ever It May Concern letter dated 15 December 2021 on Bru and Blue School of Food Café letterhead, signed by Ms Kaur as Manager, which certified that the applicant had been working as a Guest Relation Officer from 01 January 2019 and withdrawing a salary of 12000/-. His job and responsibilities were listed as :
·Provide information about amenities, area and venues and promote services
·Seat guests and manage the seating chart. Prepared all the dishes upon order of the customers
·Respond to guest inquiries and requests in a timely, friendly and efficient manner
·Ensure all dishes were cooked and plated keeping up with the highest quality standards
·Coordinated with the waiters on how the food should be service to the customers
·Cooked different varieties of curries and dished as listed in menu
(ii)Three salary slips in the applicant’s name dated 7 October 2021, 9 November 2021 and 8 December 2021 indicating a gross salary of 12000/- rupees and mode of payment as cash. The payslips were signed by Ms Kaur as Manager. The applicant’s Designation was stated to be Guest Relation Officer.
(iii)A genuine temporary entrant statement confirming the applicant’s employer name, his position details and length of employment.
On the basis of the above information, as well as meeting all other relevant criteria, the applicant was granted a Student visa on 10 January 2022.
On 25 January 2022, the Department confirmed with the applicant’s employer, Bru and Blu School of Food Café, that the applicant was employed by them from January 2020. The Department was advised that the applicant’s position with the café was as a chef and he was paid by bank deposit.
Given the inconsistencies in the information provided by the applicant in his application and by his employer, the non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101(b) and 103 of the Act in the following respects:
Alleged non-compliance with s 101(b)
Section 101 provides that visa applications are to be correct, and paragraph (b) specifically requires that no incorrect answers are given or provided.
The non-compliance identified as non-compliance with s 101(b) was:
·The applicant provided incorrect answers in his Application for a Student Visa when he:
(i)provided details on page 8 and 9 of the visa application form, under the heading Employment history details, stating he worked in the position of Guest Relation Officer from 01 January 2019; and
(ii)declared that the information he provided was complete and correct information in every detail on the form, and on any attachments to it under the heading Declarations.
Section 99 of the Act provides that any information a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of s.101, paragraphs 101(b) and 102(b) and ss. 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
Section 100 of the Act provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
The information was considered to be incorrect because on 25 January 2022, information was received by the Department from Bru and Blu School of Food Café that the applicant was employed from January 2020 and the position he held was as a chef. Therefore, the information the applicant provided that his employment with Bru and Blu School of Food Café as a Guest Relation Officer from 01 January 2019 was incorrect.
Alleged non-compliance with s 103
Section 103 provides that bogus documents are not to be given. A ‘bogus document’ is defined in s 5 (1) of the Act as a document the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
The non-compliance identified as non-compliance with s 103 was:
·The applicant submitted the following bogus documents:
oTo Whom So Ever It May Concern letter dated 15 December 2021 which certified that the applicant had been working as a Guest Relation Officer from 01 January 2019 and withdrawing a salary of 12000/-.
othree salary slips in the applicant’s name dated 7 October 2021, 9 November 2021 and 8 December 2021 indicating a gross salary of 12000/- rupees and mode of payment as cash. The applicant’s Designation was stated to be Guest Relation Officer.
The documents were considered to be bogus because on 25 January 2022, the Department received information that the applicant’s employment with Bru and Blu Food of School Café commenced in January 2020 and whilst employed at the café he performed the duties of a chef and was paid via bank deposit. This information conflicted with the documents submitted showing he had been working as a Guest Relation Officer since 01 January 2019 and was paid in cash. On this basis the Department reasonably suspected the documents relating to Bru and Blu Food of School Café to be counterfeit or had been altered by a person who did not have authority to do so, as they were not genuinely issued in respect of the applicant’s claimed employment.
Response to the s 107 notice
On 19 April 2022, the applicant responded to the s 107 notice. No written submissions were provided from the applicant however a letter from his employer, Bru and Blu School of Food dated 14 April 2022, addressed to the Department was provided. The letter included the following information:
·The letter was on Bru and Blue School of Food Café letterhead and was signed by Chhavi Singhi described as Proprietor and Gourav Singhi, described as co-owner.
·Information provided to the Department by Ms Amrinder Kaur who works as the café Manager was misinterpreted. Ms Kaur advised that the applicant worked in the kitchen as a chef and this was partially correct. The applicant’s employment reference letter mentions some of his duties are that he did work in the kitchen and was responsible for food preparation. The applicant played dual roles which involved both kitchen duties as a chef and also as a Guest Relation Officer. The applicant cooked some signature dishes which were popular with patrons.
·Ms Kaur is only employed for one year and therefore she was not sure of the applicant’s tenure in the business. When questioned by the Department she said he is employed since January 2020 which is when she has been employed and worked with the applicant.
·The applicant commenced employment in January 2019 and this can be confirmed from his old payslips which he will submit to the Department. He has excelled in roles as a chef and as Guest Relation Manager.
·Ms Kaur told the Department that the applicant was paid by bank transfer. Ms Kaur is not responsible for staff salaries and it was wrong on her part to guess the applicant’s mode of payment.
·As co-owner and proprietor they are responsible for staff salaries and the applicant was paid in cash. Some staff are paid in cash and some by bank transfer and this is common practice in the hospitality industry in India.
·The employment reference letter signed by Ms Kaur clearly indicates the start date of the applicant’s employment.
·None of the employment related documents provided to the Department are bogus.
The following documentation was also provided:
·Registration Certificate issued to Chhavi Singhi (Proprietor), trading as Bru and Blu.
·three salary slips in the applicant’s name dated 7 May 2019, 9 October 2019 and 7 February 2020, indicating a net salary of 9000/- rupees and mode of payment as cash. The payslips were signed by a Manager and the applicant’s designation was stated to be Guest Relation Officer.
Statement of Purpose document
The evidence before the Tribunal included a document titled Statement of Purpose. This was a document the applicant provided to the Department in support of his application for a student visa and was referred to by the delegate as the applicant’s genuine temporary entrant statement.
The document included the applicant’s academic and employment history, the reasons he wished to study in Australia, details of the course he wished to study, his plans after completion of his study, his family details and financial arrangements and his accommodation and visa conditions in Australia. He set out his employment history as follows:
After completing my diploma, I decided to gain some professional work experience to understand the needs and what satisfy customers the most. Therefore, I secured a position of Guest Relation Officer on 01st January, 2019 in the nearby Hotel named as Bru and Blu, Sirhind, (PB). Presently I am working here and my duties are to:-
·Provide information about amenities ,area and venues and promote services
·Seat guests and manage the seating chart. Prepared all the dishes upon order of the customers
·Respond to guest inquiries and requests in a timely, friendly and efficient manner
·Ensure all dishes were cooked and plated keeping up with the highest quality standards
·Coordinated with the waiters on how the food should be service to the customers
·Cooked different varieties of curries and dished as listed in menu
During my experience, I have realized that despite of best services, highly maintained standards customer only raise their expectations and evaluations on food as a priority. I personally love food and feel that food is something that has a culture, a history, a story and relationships. Also, while our restaurant was closed during covid lockdowns, I did cooking for my parents at home, I would make new dishes for them and receive sincere appreciation. During this period I realized that, I was born to be a chef, I had already learnt the basics and had some practical experience in the hotel. Now, I decided to do a professional culinary course.
The duties listed by the applicant in the document are identical to the duties listed in the letter from the applicant’s employer dated 14 April 2022.
Evidence provided prior to the hearing.
Prior to the hearing the applicant provided the following additional documents:
·Statutory declaration dated 6 January 2023 in which he stated that he commenced employment with Bru and Blu School of Food Café in January 2019 and performed the roles of a Guest Relation Officer and also worked in the kitchen as a cook and was paid in cash.
·CoE for Certificate III in Commercial Cookery created on 21 October 2022
·CoE for Certificate IV in Kitchen Management created on 21 October 2022
·CoE for Diploma of Hospitality Management created on 21 October 2022
·Applicant’s Visa Entitlement Verification Online dated 3 January 2023
·Letter dated 1 January 2023 on Bru and Blu School of Food Café letterhead, signed by Chhavi Singhi described as Proprietor and Gourav Singhi, described as co-owner which provided evidence not materially different from the letter dated 14 April 2022 and the following additional evidence:
oThe applicant’s initial employment letter sent to the Department clearly stated that he worked as Guest Relation Officer and in his job responsibilities it was stated that he also worked in the kitchen and cooked dishes.
oWhen Ms Kaur mentioned that the applicant worked in the kitchen as a chef, it was a correct statement and this can be evidenced by the employment reference letter provided by the applicant which lists his duties.
Prior to the hearing the representative provided a written submission which included the following:
Mr. Maninder did commence the job in January 2019 and we fail to ascertain why the department would consider the words of a restaurant manager and ignore a written letter from the employer. The Mr. Maninder did play dual roles and this was already confirmed in the letter submitted to the department when the student visa application was made so there should be no issue there. Thirdly, Ms Amrinder Kaur (restaurant manager) does not deal with salaries and this is directly managed by the owners of the business. She merely ‘assumed’ that Mr. Maninder was paid through bank deposits without clarifying this information with the owners of the restaurant.
Due to the above misunderstanding, it is unfair for Mr. Maninder’s visa to be cancelled.
Evidence provided at hearing
The Tribunal noted that in his Application for a Student Visa, his Statement of Purpose, the To Whom So Ever It May Concern letter and the salary slips, the applicant’s position or Designation was stated to be Guest Relation Officer, and given the letter dated 14 April 2022 provided in response to the s 107 notice, asked him about his position at the café. He told the Tribunal that he worked as both Guest Relation Officer and chef and referred to the statement of his duties set out in his Statement of Purpose and the letter dated 14 April 2022, which included that he made curries. The Tribunal asked him whether he had a main role and he clearly stated that he worked as Guest Relation Officer “most of the time”.
The applicant told the Tribunal that he nominated Ms Kaur as the contact person because she was the Manager of the café.
The Tribunal asked the applicant whether Ms Kaur was the Manager when he commenced working at the café. He clearly said she was there “before” him.
The applicant told the Tribunal that the café owners and not Ms Kaur paid him.
The Department contacted Ms Kaur on 25 January 2022, less than 6 weeks after she signed the To Whom So Ever It May Concern letter. The delegate referred to some but not all of the information she provided on 25 January 2022. Accordingly, the Tribunal put the information she provided on 25 January 2022 to the applicant pursuant to s 359AA of the Act.
The Tribunal put to the applicant that Ms Kaur told the Department that she had been employed by the café for more than 3 years. This would mean that she had been employed from at least January 2019. In contrast to this, the letter dated 14 April 2022 stated that Ms Kaur advised the Department that the applicant commenced employment in January 2020 because that was when she commenced employment. In response, the applicant referred to the letter dated 14 April 2022 from the owners and said Ms Kaur may have been confused on 25 January 2022. The Tribunal noted that the applicant‘s evidence at the hearing was that Ms Kaur was employed at the café “before” he commenced employment.

The Tribunal put to the applicant that Ms Kaur told the Department that he was employed as a chef. The Tribunal pointed out his Application for a Student Visa, his Statement of Purpose, the To Whom So Ever It May Concern letter and his salary slips describe his position as Guest Relation Officer. In response, the applicant referred to the letter dated 14 April 2022 and said Ms Kaur may have been confused on 25 January 2022. The Tribunal noted his earlier evidence at hearing that he worked as Guest Relation Officer “most of the time” and given this, the Tribunal put to the applicant that it would be reasonable to expect Ms Kaur to have described his main role. Once again he said she must have been confused.
The Tribunal put to the applicant that Ms Kaur told the Department that his working hours were from 10.00 am to 10.00 pm and at times later. He confirmed that this information was correct.
The Tribunal put to the applicant that Ms Kaur told the Department that he joined the café in January 2020, just before first COVID-19 lockdown and that the Department requested she confirm if she was sure about the month and year of him joining, and she then confirmed he joined in January 2020. The Tribunal pointed out that the reference to the first lockdown was specific in that the onset of COVID-19 was in early 2020. In contrast to this the Application for a Student Visa, the Statement of Purpose, the To Whom So Ever It May Concern letter and the letter dated 14 April 2022 stated that he commenced employment on 01 January 2019. In response, the applicant referred to the letter dated 14 April 2022 and said Ms Kaur may have been confused on 25 January 2022.
The Tribunal put to the applicant that Ms Kaur told the Department that his gross salary was 10,000 INR per month and was paid into his bank account, however this is inconsistent with the information contained in the salary slips provided with his application. In response, the applicant referred to the letter dated 14 April 2022 and said Ms Kaur may have been confused on 25 January 2022.
The Tribunal put to the applicant that information in the To Whom So Ever It May Concern letter was inconsistent with the information provided by Ms Kaur less than 6 weeks later (on 25 January 2022) in several respects, namely the date he commenced employment, his position and his salary amount and payment. In response, the applicant referred to the letter dated 14 April 2022 and said Ms Kaur may have been confused on 25 January 2022.
The Tribunal noted that the letter dated 14 April 2022 said Ms Kaur is not responsible for staff salaries and it was wrong on her part to guess the applicant’s mode of payment. The applicant told the Tribunal that the café owners paid him and referred to the letter dated 14 April 2022. The Tribunal noted that the salary slips provided with the Application for a Student Visa (all dated in 2021) were signed by Ms Kaur. The salary slips indicate the mode of payment was cash and the applicant’s Designation was Guest Relation Officer. The Tribunal put to the applicant that given that she signed the salary slips in the 3 months preceding the Department’s interview, she would have been aware of the applicant’s salary and mode of payment. In response ,he said perhaps she was confused on 25 January 2022.
The Tribunal referred the applicant to the salary slips dated 7 May 2019, 9 October 2019 and 7 February 2020 provided in response to the s 107 notice and asked him who signed those salary slips. The Tribunal pointed out that they were indicated to have been signed by the Manager and asked him who the Manager was in February 2020. He said the salary slip dated 7 February 2020 was signed by Ms Kaur. The Tribunal pointed out that the signature on the salary slip dated 7 February 2020 was the same as the signature on the salary slips dated 7 May 2019 and 9 October 2019, and was not Ms Kaur’s signature as shown in the To Whom So Ever It May Concern letter and the salary slips provided with the Application for a Student Visa (all dated in 2021). In response, the applicant referred to the café having two restaurants however he did not identify any other the person as having signed the salary slip dated 7 February 2020. The Tribunal pointed out that the information provided to the Department including the letter dated 14 April 2022 had not mentioned the existence of two restaurants. The applicant provided no further evidence regarding another restaurant or its relevance to his application for review.
The representative made the following submissions:
·The role of a manager in India is different to the role of a manager in Australia where a manager has entire control of a business. In India the business owners play a big part.
·A manager in India does not handle the bank accounts of a business and she is not sure why Ms Kaur made the statements on 25 January 2022 about the applicant’s salary and mode of payment.
·There is no denying that the applicant was employed by the café and the letter dated 15 December 2021 confirms he commenced that employment in January 2019 and his mode of salary payment. Ms Kaur’s oral evidence to the Department on 25 January 2022 did not match the written information she provided in the letter and she must have been confused. She is not sure what Ms Kaur was thinking or what her frame of mind was on 25 January 2022.
·It is a common practice in India for an employee to have a dual role in a small business.
·The letters from the owners should be accepted because they have no hidden agenda.
The Tribunal places minimal weight on the letter dated 14 April 2022. The letter refers to the To Whom So Ever It May Concern letter signed by Ms Kaur however the Tribunal does not accept that Ms Kaur would sign a letter on 15 December 2021 which contained specific information regarding the applicant’s position, commencement date and salary, and provide contradictory statements to the Department regarding the applicant’s position, commencement date and salary less than 6 weeks later. The Tribunal does not accept the information in the letter dated 14 April 2022 that the reason Ms Kaur said the applicant commenced employment in January 2020 was because that was when she commenced her employment at the café. She told the Department, and the Tribunal accepts, that she commenced employment more than 3 years earlier. In addition, the letter dated 14 April 2022 stated that Ms Kaur is not responsible for staff salaries and would not know how the applicant was paid. However the three salary slips submitted with the visa application, which indicated the applicant’ s salary and mode of payment, are signed by Ms Kaur. The Tribunal also takes this into account in giving minimal weight to the letter dated 14 April 2022.
When responding to the s 107 notice, salary slips in the applicant’s name dated 7 May 2019, 9 October 2019 and 7 February 2020, indicating a net salary of 9000/- rupees and mode of payment as cash were provided. Given the Tribunal’s findings in relation to the letter dated 14 April 2022, the Tribunal does not accept that the salary slips contain correct information and accords them minimal weight.
When responding to the s 107 notice, a Registration Certificate issued to Chhavi Singhi (Proprietor), trading as Bru and Blu was also provided. The Tribunal accepts that Chhavi Singhi is the Proprietor and Gourav Singhi is a co-owner of Bru and Blue.
Conclusion on non-compliance
On the evidence before it, the Tribunal finds that the applicant’s answers on his visa application form stating he had worked in the position of Guest Relation Officer from 01 January 2019 were incorrect.
The Tribunal places significant weight on the information provided to the Department by Ms Kaur on 25 January 2022. The information she provided was specific in relation to when the applicant joined the café, the applicant’s salary and mode of payment, his position at the café and the hours he worked.
The Tribunal does not accept that that the applicant worked in the position of Guest Relation Manager, either as a primary or secondary position at the cafe. The Tribunal places weight on the evidence provided to the Department by Ms Kaur on 25 January 2022 that the applicant’s position was that of chef. The applicant and the representative contended that the applicant worked as Guest Relation Officer and chef and referred to the statement of duties provided. The Tribunal accepts that the applicant worked as a chef. This was the only role described by Ms Kaur despite the applicant’s contention at the hearing that he worked as Guest Relation Officer “most of the time”.
The Tribunal does not accept that that the applicant commenced employment on 01 January 2019. On 25 January 2022, Ms Kaur told the Department he commenced in January 2020. She was asked to confirm if she was sure about the month and the year, which she did. In addition, she advised that the applicant commenced just before the first COVID-19 lockdown, which in the Tribunal’s view is a time that is not difficult to accurately recall. Further, in her position as Manager, the Tribunal considers it likely that if she was unsure of the applicant’s commencement date for any reason, she would have checked his records. The Tribunal does not accept the information in the letter dated 14 April 2022 that the reason Ms Kaur said the applicant commenced employment in January 2020 was because that was when she commenced her employment at the café. At the hearing, in response to the Tribunal asking the applicant whether Ms Kaur was employed at the café when he commenced working there, he said she was there “before” him.
Further non-compliance with s 101(b) of the Act was identified and particularised in the s 107 notice because the applicant answered Yes to the Declarations that he agreed to provide correct and up to date information. The information regarding his position, commencement date, salary and mode of payment was incorrect information. The Tribunal further finds that by declaring that the information he provided was complete and correct information in every detail on the form and on any attachments to it, he provided an incorrect answer.
Accordingly, the applicant has not complied with s 101(b) as described in the s 107 notice.
The Tribunal finds that the To Whom So Ever It My Concern letter dated 15 December 2021 is a bogus document because it certified that the applicant had been working as a Guest Relation Officer from 01 January 2019 and withdrawing a salary of 12000/-. As noted, the Tribunal has found that the applicant was not working as a Guest Relation Officer from 01 January 2019. In addition, the document certifies the applicant’s salary of 12000/- which is inconsistent with the information provided by Ms Kaur, and which the Tribunal accepts. The letter purports to be signed by Ms Kaur however this would mean that she signed the letter despite her knowledge (as advised on 25 January 2022) that it contained incorrect information in relation to the applicant’s position, commencement date, salary and mode of payment. The applicant’s explanation for these inconsistences was that Ms Kaur must have been confused on 25 January 2022. At the hearing the Tribunal noted that no subsequent document from Ms Kaur explaining the inconsistencies had been provided. The applicant sought to rely on the letter dated 14 April 2022 however, given the Tribunal’s findings, it does not accept the information in the letter and gives it minimal weight. In the absence of any persuasive evidence otherwise, the Tribunal accepts that the information Ms Kaur provided to the Department on 25 January 2022 was correct. Therefore, the Tribunal reasonably suspects that the To Whom So Ever It May Concern letter is counterfeit or has been altered by a person who does not have authority to do so and finds it is a bogus document.
The applicant also provided salary slips dated 7 October 2021, 9 November 2021 and 8 December 2021 indicating a gross salary of 12000/- rupees and mode of payment as cash. The applicant’s Designation was stated to be Guest Relation Officer. The payslips are purported to be signed by Ms Kaur however this would mean that she signed the payslips despite her knowledge (as advised on 25 January 2022) that they contained incorrect information in relation to the applicant’s position, salary and mode of payment. The applicant’s explanation for these inconsistences was that Ms Kaur must have been confused on 25 January 2022. In the absence of any persuasive evidence otherwise, the Tribunal accepts that the information Ms Kaur provided to the Department on 25 January 2022 was correct. The Tribunal accepts the representative’s submission that it is the owners who paid the applicant however it is Ms Kaur’s signature on the salary slips. Therefore, the Tribunal reasonably suspects that the payslips are counterfeit or have been altered by a person who does not have authority to do so and finds them to be bogus documents.
The Tribunal finds that the To Whom So Ever It May Concern letter and the payslips are counterfeit within the meaning provided by paragraph (b) of section 5(1) of the Act.
Accordingly, the applicant has not complied with s 103 as described in the notice.
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 the applicant was not employed as a Guest Relation Officer at Bru and Blu School of Food Café from 01 January 2019. This information was provided by the applicant in his Application for a Student Visa and the To Whom So Ever It May Concern letter.
In response to the s 107 notice the applicant provided a letter from the proprietor and co-owner of Bru and Blu School of Food Café which said the information provided by Ms Kaur on 25 January 2022 had been misinterpreted because the applicant worked in the kitchen as a chef as evidenced by his statement of duties and also worked as a Guest Relation Officer, playing dual roles. The letter also disputed the information provided by Ms Kaur on 25 January 2022 in relation to the applicant’s commencement date, salary and mode of payment. For the reasons set out above the Tribunal accepts that the correct information was provided by Ms Kaur on 25 January 2022 that the applicant was employed as a chef from January 2020 was paid a gross salary of 10,000 INR per month and payment was by bank transfer. This information was not provided at the time of application.
As noted, a subsequent statement from Ms Kaur explaining the inconsistencies in the letter she signed on 15 December 2021 and the information she provided on 25 January 2022 has not been provided.
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
For the reasons set out above, the Tribunal has concluded that the decision to grant the visa was based partly on incorrect information and bogus documents. It is not necessary to establish that the visa would not have been granted if the correct information was known and bogus documents not provided. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on the incorrect information and bogus documents.
The Tribunal gives this factor weight in favour of its discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant’s explanation for the inconsistent information given by Ms Kaur on 25 January 2022 was that she must have been confused. For the reasons set out above, the Tribunal is satisfied that the applicant provided incorrect answers on his visa application form and also provided bogus documents.
The Tribunal is satisfied that the applicant’s non-compliance was deliberate as he would have been aware of his position at the café, the date he commenced this employment, his salary and his mode of payment. In making this determination the Tribunal also takes into account the applicant’s evidence at hearing that Ms Kaur was working at the café when he commenced employment, which was inconsistent with the letter dated 14 April 2022 and his contention that the inconsistent information provided by Ms Kaur on 25 January 2022 was because she was confused..
The Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.
The present circumstances of the visa holder
The applicant has been residing in Australia for one year, having arrived on 16 January 2022. The Tribunal noted the CoEs provided prior to the hearing and asked him about his current study. He told the Tribunal he is studying a Certificate III in Commercial Cookery. He said the course is a 12 month course and commenced study in November 2022. He said on completion of the course he will undertake Certificate IV and Diploma studies.
The applicant told the Tribunal that he does not work and is financially supported by his parents. He lives in shared accommodation with 3 friends.
The Tribunal accepts that the impact of cancellation of the visa is that the applicant will be unable to complete his 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 his obligations.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance.
The Tribunal gives this consideration a little weight against cancelling the visa.
The time that has elapsed since the non-compliance
The applicant was granted the visa on 10 January 2022 and provided the bogus documents and incorrect answers on his application form was submitted to the Department on 16 December 2021. The Tribunal accepts that it is 13 months since the events of non-compliance occurred, however does not consider this to be a significant amount of time.

The Tribunal gives this factor 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 gives this consideration a little weight against cancelling the visa.
Any contribution made by the holder to the community
There is nothing before the Tribunal to indicate, and the applicant did not contend, that he makes any contribution to the community.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.
Other considerations
As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s 189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a 3 year exclusion period unless he meets the relevant Public Interest Criterion. Whilst these are serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation.
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.
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. No claim has been made that there are any children in Australia who may be affected by a decision to cancel the visa. The Tribunal is satisfied that should the visa be cancelled, this would not breach Australia’s obligations in respect to the International Convention on the Rights of the Child.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
The applicant told the Tribunal that if his visa is cancelled he will not be able to complete his studies in Australia. He said completion of his studies would mean that he would be able to secure a higher level, higher paying job as a chef in India. He said he has worked hard in relation to his studies.
The representative submitted that the applicant has gone though a lot to obtain study rights. She said he did not apply to have work rights attached to his visa. The representative submitted that many families in India borrow money to pay for their child’s overseas living and education expenses. The Tribunal accepts this however pointed out that this was not contended by the applicant in his case.
The Tribunal acknowledges that the cancellation of the applicant’s visa may cause some hardship to the applicant because he would not be able to complete his studies in Australia. The Tribunal gives this consideration some weight against cancellation.
Conclusion on the exercise of the discretion
The Tribunal has considered the factors identified by the legislation and policy. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101(b) and s 103 of the Act.
The Tribunal acknowledges that 13 months has passed since the non-compliance. The Tribunal accepts that hardship may be caused to the applicant 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.
The Tribunal accepts that if the applicant’svisa is cancelled, and unless he is granted another visa, he may be subject to detention, although the applicant may be eligible to apply for othervisas.
The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

100. The applicant’s non-compliance may cause him some hardship however the Tribunal considers the applicant’s provision of incorrect information and bogus documents is not outweighed by the considerations before it. The Tribunal places greater weight on the fact that the correct information was not provided to the Department, the circumstances in which the non-compliance occurred and that the decision to grant the visa was based partly on incorrect information and bogus documents provided to the Department.
101. 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
102. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
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.

[2023] AATA 2041

3 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Procedural Fairness

Judicial Review

Statutory Construction

Natural Justice

Jurisdiction

Appeal