Methku (Migration)

[2023] AATA 1467

Methku (Migration) [2023] AATA 1467 (17 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ajay Kumar Methku

REPRESENTATIVE:  Mr Owais Shaheen (ALP No: 5511917)

CASE NUMBER:  2205338

HOME AFFAIRS REFERENCE(S):          BCC2021/2361478

MEMBER:Gabrielle Cullen

DATE:17 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 17 May 2023 at 2:19pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – bogus qualifications – college de-registered – several course changes – concurrent enrolments of a vocational and a master’s course – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 359; Direction No.69
Migration Regulations 1994, Schedule 2, cl 500.212; Schedule 4, Public Interest Criterion 4013; rr 2.12, 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The applicant is a national of India. On 15 March 2021 he made an application for a Student (Higher Education Sector) (Subclass 500) visa. On 8 September 2021 he was granted the visa valid to 27 October 2023. He had previously arrived in Australia on a Subclass 500 visa on 29 July 2018.

3. On 10 February 2022, the delegate sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC) of his student visa under s 109 of the Act and informed him that a response must be provided in writing within 14 calendar days after he was taken to have received the letter.

4. On 24 February 2022, the applicant provided a response to the NOICC in the form of an email.

5. On 6 April 2022, the delegate cancelled the applicant’s Student visa under s 109 on the basis that he had not complied with s 101(b) and s 103 of the Act on the basis of information and documents provided to the Department.

6. On 11 April 2022, the applicant applied to the Tribunal for a review of that decision and attached the decision of the Department.

7.    On 12 April 2023 the Tribunal invited him to appear before the Tribunal by video link on8 May 2023 at 9.30am to give evidence and present arguments relating to the issues arising in his case.

1. On 17 April 2023 the Tribunal wrote to the applicant informing him of the existence of a s 375A non-disclosure certificate issued by the Department on 14 April 2023 and attached the certificate. The letter noted the following:

   Release of the material is prevented by s 375A of the Act.

   The Tribunal’s preliminary view is that the certificate contains a valid ground of public interest immunity not to disclose the information. The certificate is attached to this correspondence.

2. It invited him to comment on the validity of the s 375A certificate by 8 May 2023 and advised he would also be given an opportunity at the hearing on 8 May 2023 to discuss this matter and provide oral submissions.

3. The applicant appeared before the Tribunal via video on 8 May 2023 to give evidence and present arguments. His representative attended the hearing.

4. He was given until 12 May 2023 to provide evidence of enrolment and study in the Certificate III in Light Vehicle Mechanical Technology from 25 January 2021 until the cancellation of the visa as claimed at hearing. He had not provided any further post-hearing submissions as at the date of this decision.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Section 375A certificate of non-disclosure

6. The Tribunal wrote to the applicant advising that there is a s 375A certificate on the Department’s file which it considered is valid. At the hearing the Tribunal advised that it considered the certificate to be valid. It referred to its previous letter sent to the applicant in regard to the certificate which outlined the reason given by the Department for the certificate. The applicant’s representative said they had no issue with the validity of the certificate.

7. The Tribunal outlined at hearing, via the process outlined in s 359AA, the information it covered in general with regard to integrity checks being undertaken that indicate that qualifications submitted from Keyboard Concepts Pty Ltd trading as Australian Information Technology College (AITC) by the applicant with the application for the visa were bogus. The Tribunal noted that information received from the Australian Skills Quality Authority (ASQA) and the Office of the Unique Student Identifiers Registrar shows that the applicant had not completed any course units or any qualification from this education provider, and therefore the Diploma of Business certificate is bogus and that it was cancelled as a registered training organisation.

8. The applicant responded at hearing as outlined further below that he attended the course and classes and was provided with the certificate from AITC for completion of the Diploma of Business. He said the fault for issuing the bogus certificate is that of the College but he attended and completed the course.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

9. 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.

10. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

    Did the notice comply with the requirements in s 107?

11. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Was there non-compliance as described in the s 107 notice?

12. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) and s 103.

13. The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 6 April 2022. The information indicates that on 15 March 2021 he applied online to the Department for a Student (Higher Education Sector) (Subclass 500) visa to undertake an Advanced Diploma of Leadership and Management followed by a Graduate Certificate in Management (Learning). It notes he was assessed by the delegate as meeting all the relevant criteria and a Student visa was granted on 8 September 2021 valid to 27 October 2023.

14. The Department decision notes that in the NOICC dated 10 February 2020, the delegate set out the particulars of the non‑compliance.

15. In particular the delegate noted the applicant in his application form included at page 9 under Education History the following information:

    Give details of all past studies at secondary level and above.

    Qualification: Diploma

    Category of study: Business and Management

    Field of study: Business and Management, n.e.c.

    Course name: Diploma of Business

    Institution name: Australia Information Technology College

    Campus: Docklands, Victoria

    Postcode: 3008

    Date from: 13 Nov 2018

    Date to: 15 Nov 2019

16. At pages 14 and 15 under the heading Declarations the delegate noted he provided the following answers:

    Warning:

    Giving false or misleading information is a serious offence.

    The applicants declare that they:

    Have read and understood the information provided to them in this application.

    Yes

    The applicants declare that they:

    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

17. The delegate noted that in support of his claimed education history he also submitted with his application the following documentary evidence:

    Certificate of Completion in a Diploma of Business and the academic transcript indicating the units completed. The certificate has purportedly been issued by Keyboard Concepts PTY LTD, trading as Australian Information Technology College (AITC), document number AITC/KB/DB93882A15112019-AKM, issued on 15 November 2019

18. The Department’s Decision Record indicates that based on the information provided by the applicant in his visa application form and the supporting documents provided, he was granted the Student (Higher Education Sector) (Subclass 500) visa on 8 September 2021 valid to 27 October 2023.

19. The Department’s Decision Record indicates that:

    On 11 August 2021, the Australian Border Force (ABF) received information from the Office of the Unique Student Identifiers Register (USI) that the visa holder had not completed any course units or qualifications with AITC.

    On 8 February 2022, the Provider Registration and International Students Management System (PRISMS), which provides the Confirmation of Enrolment (CoE) and study records of international students registered in Australia, which the Department has access too, was checked. PRISMS indicated that there is no evidence that the visa holder was enrolled in a Diploma of Business with AITC.

20. The delegate considered the applicant’s response to the NOICC which is as follows:

    Currently, I’m pursuing an Advanced Diploma of Leadership and Management leading to Graduate Certificate in Management, Lennox Institute, Sydney, Australia. Since childhood, I have had a dream to study in Australia. Australia is a lovely country and its attractive features fascinated me to study here. After coming here, I studied Master of Information Technology and Network Engineering one semester from Latrobe University Sydney, but this was for the first time I came somewhere to study in a place where everything was new and unknown. It was both happening and exciting for me. However, one of my friends, who I knew from my home county school, asked me to stay with him for a few days till I get a place to live. It was a real challenge to get my own place as it was something I was doing for the first time in my life. Plus, new people and a new culture, and I was on my own. Moreover, I went to one consultant and he guided me to go with basic course which was not related to my previous studies at that time I was completely confused and continued my studies in same university and I studied there one more semester but got fail in some subjects beside this I was still feeling homesick, I began missing my parents and living totally by me was something I was experiencing for the first time. Things were not as easy as I thought it would be without family and friends. I came under a lot of stress with the different environment. In Australia, it was hard for me to get a grip on my life. I finally learned to cook and settle down taking care of myself. On the other hand, I joined the Diploma of Leadership and Management in Newton College but still I was not satisfied so I changed my course and joined Advanced Diploma of Automotive. As I was not able to cope up with the complex Education pattern over there so during the same period I decided not to waste my time and enrolled myself in Diploma of Business in Australian Information Technology College which is an RTO registered college and completed it successfully.  

    Later on, I discussed in brief with my Parents they asked me to continue with some Business-related course and come back to home country and join our family business and upon their suggestion and guidance I decided to switch back to Business and Management by enrolling into Advanced Diploma of Leadership and Management leading to Graduate Certificate in Management in Lennox Institute. I found there are many study courses which could provide me a fundamental foundation of how to boost our family business along with the management of finances with Business and Management Skills, to the education which leads to my desired business career of boosting up our business in my home country India. I chose Advanced Diploma of Leadership and Management leading to Graduate Certificate Management as it is not available in my Home Country and neither was it a part of my Bachelor and the advantage is, I can get good experience after learning this course in Australia.

    I have closely looked the subject offered in this course in Lennox Institute. It covers all the aspects and hence provides an overall comprehensive knowledge. As evident in the aforementioned paragraph I am exactly looking for the same in my future course of studies to fulfil my career goal in the future vision. I strongly believe that the subjects offered will help me to understand the practical aspect of the Business, Management, Banking and corporate world.

    I have researched the Australian education system. I believe that I hold its value around the globe. Obviously, it is vital to have an education that is recognized everywhere in the world. I have not stayed here long enough to understand the lifestyle and I am sure studying in Australia is going to be an exciting experience not only from career point of view but from personal point of views as well, I will be able to get perfect international exposure including the networking opportunity which I wouldn’t be able to access if I study in my home country.

    Lennox Institute is centrally located in the heart of Sydney and easily accessible from where I live. I have researched all the subjects offered in the course and I am glad to learn that the education at the Lennox Institute is entrepreneurial focused alone with providing real practical experience through the Business and Banking simulation game. It has all the support, facilities and infrastructure required for any modern education institute. I am glad to have found such a wonderful institute which aligns with my career goals and meets my expectations.

    The proposed course will enhance my Business, Banking and Managerial skills which I can utilize back in my Home Country for the growth of our Family Trading Business as I don’t want my father to work anymore and want him to retire after two years.

    I am in Australia and I have utmost respect for the Australian laws and Australian values. I have got no adverse immigration history in any country in the world and have a very clean track record. I have an immediate family settled in India. I am the eldest son for my Parents and hence adding extra responsibilities to look after our parents as per our tradition and culture I hope the information provided by me is useful in assessing my application. Please advise me if any further information is required.

    I received an NOICC letter stating that the Diploma of Business in Australian Information Technology College is a bogus document. This college was an RTO registered College which doesn’t provide a COE and which is the reason the PRISM doesn’t have my CoE for the same. But after receiving an NOICC I have contacted my college and have requested them for more information on my qualification as it was very heart breaking to know that all my efforts of pursuing studies have been declared bogus and I feel I am a victim here as they were not responding to any of my contact approaches. I have requested them for further details and one of the student service attendants has informed me that the information shall be updated on my USI at the earliest.

    Here I state that I have not altered any of the documents neither have submitted any bogus documents and I consider myself a Victim in this situation that occurred. I request you to consider my request to Not Cancel my visa so I can return to my home country with an international education which can eventually help me further to build my career in a better way with wide opportunities. But apart from that I have been a genuine student and I have completed 90% of Advanced Diploma of Leadership and Management after which I will be left with Graduate Diploma of Management learning to complete and after completion of this course I intend to return back to my home country and grow my future career in India in a better way and give my family the basic luxuries they deserve.  

    In conclusion I would like to request you to please give me at least one chance to prove myself as everyone deserves a second chance and that is all I am asking. In advance, I would like to express my gratitude for your time and consideration with a hope that the decision would be taken in account of wisdom.

21. The delegate considered that the applicant had had not complied with s 103 as he had submitted bogus documents being the Certificate of Completion of a Diploma of Business and the academic transcript indicating the units completed by Keyboard Concepts Pty Ltd, trading as AITC. The delegate noted that a subsequent check of the Provider Registration and International Student Management System (PRISMS) indicates that the applicant was not enrolled in a Diploma of Business with AITC. Based on this information, the delegate found that the applicant had not complied with s 103 of the Act because he provided  documents to the Department that were counterfeit or had been altered by a person who did not have authority to do so and therefore his Student visa was liable to be considered for cancellation under s 109 of the Act.

22. The Department’s Decision Record indicates that the delegate found that the applicant had not complied with s 101(b) of the Act because he had provided incorrect information as to being enrolled in and studying the Diploma of Business at AITC and that he had not provided correct answers in the declarations in the application for the visa as outlined above. The delegate found that his Student visa was therefore liable to be considered for cancellation under s 109 of the Act.

23. Prior to the hearing the applicant provided the following submission:

    I am writing this statement to appeal against the cancellation of my subclass 500 visa. I am Ajay Kumar Methku, an international student from India who came to Australia in July 2018 to pursue a Master of Information and Communication Technology from La Trobe University.

    I am aware that my visa was cancelled due to the use of bogus documents, specifically the Certificate of Completion in a Diploma of Business and the academic transcript from Australian Information Technology College (AITC), document number AITC/KB/DB93882A15112019- AKM, issued on 15 November 2019. However, I would like to clarify that I stand by the response I provided to the Department of Home Affairs regarding these documents.

    I would like to provide some background information about my journey as an international student in Australia. Since childhood, it has been my dream to study in Australia, and after arriving here, I initially studied a Master of Information Technology and Network Engineering for two semesters at La Trobe University, Sydney. However, I struggled with this course and failed a number of subjects. At that time, I was feeling homesick and found it hard to adjust to the new country and people

    Due to my confusion and uncertainty about my course, I went to a consultant who guided me towards a basic course that was not related to my previous studies. However, I soon realized that this course was not suitable for me and decided to continue my studies at the university for one more semester. Eventually, I joined the Diploma of Leadership and Management in Newton College but later changed to the Advanced Diploma of Automotive.

    Despite my best efforts, I was unable to cope with the complex education pattern at Newton College, and I decided not to waste any more time there. Therefore, I enrolled myself in the Diploma of Business at Australian Information Technology College, which is an RTO registered college, and successfully completed it.

    Later, my parents discussed with me the idea of continuing my studies in the business field and returning to our home country to join the family business. After this discussion, I switched back to Business and Management by enrolling in the Advanced Diploma of Leadership and Management leading to Graduate Certificate in Management at Lennox Institute.

    I chose to complete this course as it was not available in my home country and was not a part of my previous Bachelor's degree. I also researched the Australian education system and found its global recognition to be a bonus. Additionally, I believe that studying and living in Australia has given me good international exposure and an understanding of different lifestyles.

    I want to clarify the inconsistencies mentioned in the cancellation decision by DHA regarding my response to the Certificate of Completion in a Diploma of Business and the academic transcript from Australian Information Technology College (AITC), document number AITC/KB/DB93882A15112019-AKM, issued on 15 November 2019. In their decision, DHA stated that my response was inconsistent because I stated that I had studied two semesters for my Masters, which should have been from July 2018 to June 2019. However, I had also enrolled and studied in a Diploma of Business at AITC from November 2018 to November 2019.

    I want to clarify that I was under the impression that I had completed two semesters for my Masters, but upon reflection, I realized that I had only completed one semester until November 2018. This was a confusing time for me because I was new to the country and had never been to a western country before. Therefore, it was difficult for me to make such references. I am not doubting the findings of the Australian Border Force (ABF), but I want to submit that I have completed the course. However, I was not aware of how the college had positioned themselves when it came to being registered with PRISMS.

    As an international student, I appreciate the education provided in Australia, but we often have a difficult time making the right decisions due to the overload of courses offered and incorrect guidance from many University/College Agents. Therefore, we generally take the word of the person advising/suggesting us the course and their credibility. When I enrolled in AITC, I was under the impression that this is an official college/institute to provide education. Hence I would of never thought that this would become an issue later on in my life. Not to mention, the college has also de-registered themselves since 2020, so I have no way of re-confirming with them regarding my certificates and transcript that I received from them.

    In my response to DHA, I mentioned that I spoke with a school service attendant who assured me that my records would be updated on his Unique Student Identifier (USI). However, DHA assumed that I was referred to someone from the college. I was actually referring to the University Agent who assisted me with my enrolment with AITC, rather than someone directly involved with AITC.

    I want to emphasize that I am not denying the ABF's findings, but rather confirming that I did study. However, AITC misguided me into thinking that I had completed my course successfully, meeting all the requirements of a student visa. Unfortunately, that was not the case. I believe that I should not be punished for something the college did, and now they have run away by deregistering themselves in 2020, so I cannot even contact them to find out what exactly happened if it was an error on their end to rectify it.

    It would not make sense for me to pay fees to AITC had I known they were offering unaccredited courses. Recently, I also heard about a well-reputed university, James Cook University, offering courses to students. However, near completion of their degree (i.e., estimated 3 years), the accreditation was not provided1. Hence it is quite difficult for students, specifically international students, to know which institute is right one to choose.

    I come from a traditional family, and as the eldest son, I have added responsibilities to look after my parents. Therefore, I request that my visa is not cancelled so I can return to my home country with an international education, which will enable me to build a successful career and contribute to my family's business. I maintain that I deserve another chance to prove myself as I believe everyone deserves a second chance.

    I respectfully request the AAT to consider my position, my situation of leaving my home country for better education and yet due to this whole experience, I feel stuck in my life. All my hard effort of studies and coming to Australia seems like a waste at this stage.

1. He also provided a Confirmation of Enrolment (CoE) dated 12 July 2018 to study a Master of Information and Communication Technology from 30 July 2018 to 30 June 2020, a CoE dated 20 May 2019 to study a Diploma of Leadership and Management at Newton College from 12 June 2019 to 7 August 2020, and a Letter of Offer dated 24 January 2021 to study a Certificate III in Light Vehicle Mechanical Technology from 25 January 2021 to 12 June 2022, followed by a Certificate IV in Automotive Mechanical Diagnosis from 25 July 2022 to 22 January 2023.

2. At hearing the Tribunal discussed with the applicant the non-compliance, as described in the s 107 notice, in relation to the Subclass 500 Student visa and the provision of bogus documents and incorrect information as to his enrolment and completion of the Diploma of Business at AITC as outlined in the NOICC and Department’s decision. It also raised with him via s 359AA the gist of the information referred to in the s 375A non-disclosure certificate.

3. The applicant responded orally at hearing and said he initially came to study a Master of Information and Communication Technology, but after one semester had failed two subjects as it was totally new and he felt it was too difficult. He referred to having never studied in a  western country before and the cultural differences as well as being homesick. He said he told the College after one semester that he did not wish to continue. He said he met with a university/education agent who guided him to enrol in the Diploma of Business at AITC. He said this agent guided him to do the course. He confirmed he did not have contact with AITC personally regarding his enrolment in the course; it was all done through this agent who was called Rizwan.

4. He said he went straight from studying the master’s degree to studying the Diploma of Business at AITC. He said he was enrolled in the Diploma of Business, attended classes, successfully completed the course and was provided with a completion certificate and academic record. When asked about the course he referred to studying how to manage meetings, how to do eMarketing and how to implement projects.

5. He said he filled in and completed the application for the Student visa.

6. The Tribunal raised a number of concerns as follows.

7. Firstly, that his evidence appeared inconsistent to that given in his recent submission where he stated that ‘I enrolled myself in the Diploma of Business at AITC, which is an RTO registered College and successfully completed it’. He said that is a mistake.

8. Secondly, that his evidence appeared inconsistent to that given in his submissions that he went straight from studying the master’s course to the Diploma of Business at AITC undermining his claim he studied the course. It also questioned that this undermined he was enrolled in the course.

   Due to my confusion and uncertainty about my course, I went to a consultant who guided me towards a basic course that was not related to my previous studies. However, I soon realized that this course was not suitable for me and decided to continue my studies at the university for one more semester. Eventually, I joined the Diploma of Leadership and Management in Newton College but later changed to the Advanced Diploma of Automotive.

   Despite my best efforts, I was unable to cope with the complex education pattern at Newton College, and I decided not to waste any more time there. Therefore, I enrolled myself in the Diploma of Business at Australian Information Technology College, which is an RTO registered college, and successfully completed it.

9. Thirdly, it raised as of concern why he would enrol in the Diploma of Leadership and Management as noted in the submitted CoE dated 20 May 2019 from 12 June 2019 to 7 August 2020, if he was enrolled in, attending and successfully completing the Diploma of Business at AITC. It questioned why he would enrol in two courses at the same time and raised this as a concern. He initially said that he applied early, became confused and initially said he did not commence this course. In contrast he later said he did study the course and the Tribunal raised with him via s 359AA that PRISMS indicates enrolment in this course was cancelled on 4 September 2019 for non-commencement of studies. He initially said it was an online course, then said he did not complete any course in this subject, then said he did not commence this course.

10. Fourthly, it raised via s 359AA that the PRISMS record indicates he studied the master’s course from 30 July 2018 to 6 June 2019 and enrolment ceased on this date when he advised of cessation of studies. It also noted that in his submission to the Department he had referred to studying for two semesters his master’s course and questioned why he would then start studying the Diploma of Business at AITC from November 2018 while still enrolled in and studying the master’s course. He said he only did one semester in his master’s course; he was confused and scared as he was in a new country, and homesick with no family. He said it was a mistake and he only finished the first semester. It raised with him that the evidence he studied the master’s course to June 2019 may undermine he was ever enrolled in the Diploma of Business at AITC.

11. The Tribunal also asked him why he was enrolled in a Certificate III in Light Mechanical Technology from 15 October 2019 and why he would study this course at the same time as the Diploma of Business. He said while he enrolled at that time, he commenced the course later in 2020. He also referred to studying this course online during the COVID-19 pandemic.

12. When asked if he had anything to add, he said when he first arrived to study the master’s course he failed two subjects, he was in a new country and had no one to help him, he had never been in a western country before and was confused and made a mistake by previously telling the Department he completed two semesters when he only finished one. He said he attended classes, paid the fees and successfully completed the Diploma of Business at AITC. He said it was organised by a university agent and he completed the course. He said he has been genuine and did not know AITC issued bogus documents. He said he had no idea until he was told by the Department that there was an issue with the documents and that is a mistake of the College and not of him as he genuinely attended and completed the course. He said he has not provided incorrect information as he studied and completed the course. He said he was a victim and was genuinely studying the course.

13. The applicant’s representative said the applicant had a difficult time when he came to Australia for cultural reasons and being in a new country, with no family, being homesick and a change in culture; he has had multiple CoEs and is confused as to his education. He said he has been reliant on his education agent and completed the Diploma of Business and whether it is or is not a bogus document, the applicant genuinely studied and finished the Diploma of Business.

    Consideration

14. In determining whether the applicant has provided incorrect information and bogus documents in his Subclass 500 visa application as identified and particularised in the s 107 notice, the Tribunal has considered the evidence before it as follows.

15. The applicant has repeatedly indicated that he studied at AITC the Diploma of Business, from 13 November 2018 to 15 November 2019, attended the classes, paid fees and successfully completed the course and was provided by AITC with the completion certificate and academic record he submitted with his application. He submits that he was a genuine student attending the Diploma of Business at AITC and whatever has occurred in the provision of bogus documents is the fault of AITC. He claims he only became aware of the difficulties with AITC when the Department contacted him regarding cancellation. He claims he has not altered any documents nor submitted any bogus documents and he is the victim in this situation. He claims he was guided as an international student by his education agent to enrol in the course and he took their word and guidance and never believed this would be an issue. He submits he should not be punished for what AITC did as he had no knowledge.

16. For the reasons that follow the Tribunal does not accept the applicant’s explanation that he was ever enrolled in, attended classes, paid fees or received a genuine completion certificate and academic record for the Diploma of Business at AITC. It follows it does not accept he was a victim who genuinely studied and without his knowledge AITC issued these bogus documents.

17. The Tribunal places significant weight on the evidence as outlined in the s 107 notice that on 11 August 2021 the Australian Border Force received information from the Office of the Unique Student Identifiers Registrar that the applicant had not completed any course units or qualifications with AITC.

18. It has also considered that the PRISMS,[1] which provides the CoE and study records of international students registered in Australia, has no record that the applicant was enrolled in a Diploma of Business with AITC. The Tribunal, however, acknowledges that PRISMS is not always accurate and that as AITC has been deregistered since 2020 this cannot be clarified with the education provider.

    [1] As outlined in the Department decision submitted to the Tribunal by the applicant.

19. Further, the applicant provided the following inconsistent and concerning evidence undermining his claim he was ever enrolled in, paid fees, attended classes and successfully finished the Diploma of Business at AITC.

20. Firstly, he has provided inconsistent evidence as to when he studied the course at AITC, specifically whether following studying the masters’ course, he studied it before or after he was enrolled in the Diploma of Leadership and Management at Newton College. In his response to the NOICC and in his submission to the Tribunal he referred to after studying the master’s course, first enrolling in the Diploma of Leadership and Management at Newton College before changing and studying the Diploma of Business at AITC. However, the evidence from the PRISMS record, as raised with him via s 359AA and the submitted CoE indicate he was enrolled in the Diploma of Leadership and Management at Newton College from 12 August 2019 to 7 August 2020, which is midway through his claimed enrolment and study of the Diploma of Business at AITC studied from 13 November 2018 to 15 November 2019.

21. Of further concern as raised with him, is why if he was enrolled, paid fees and was attending classes at AITC studying the Diploma of Business from 13 November 2018 to 15 November 2019 he would then enrol in a Diploma of Leadership and Management at AITC midway through the course to commence on 12 August 2019. When raised with him the applicant’s evidence was confusing; he initially said he did not commence the Diploma of Leadership and Management then said he did, it was online and he was confused. When the Tribunal raised that the PRISMS record indicates he did not commence the course, he then said he did not commence the course, in the manner outlined above. He also said as he had almost finished the Diploma of Business he was looking at what to study. He said he wanted to finish the course and requested his agent to enrol him in the next thing to study. The Tribunal raised with him his vague study history as being of concern and undermining his claim he was enrolled and studying the Diploma of Business.

22. Further, the applicant has repeatedly claimed that on ceasing studying the Master of Information and Communication Technology by advising the provider he no longer wanted to study the course he changed to study at the vocational level, including the Diploma of Business at AITC. However, undermining the applicant’s claims that he was enrolled in, studying and attending classes in the Diploma of Business from November 2018 is his evidence in his response to the NOICC that he was enrolled in and studying the Master of  Information and Communication Technology which began on 30 July 2018 for two semesters. In the response to the NOICC he referred to studying this course for two semesters. He said in the response to the NOICC he studied for one semester the master’s course, and later said he studied one more semester but failed some subjects and gave reason as to the difficulties he encountered studying this course. The PRISMS record accords with him studying for two semesters. As raised with him via s 359AA the PRISMS record indicates he notified cessation of this course on 6 June 2019. At hearing and in his submission to the Tribunal he addressed the inconsistency by claiming he only studied one semester in the Master of Information and Communication Technology. He claims that he was under the impression that he completed two semesters but on reflection he only completed one semester until November 2018. He claims it was a confusing time for him as he was in a new country and had never been in a western country before as a reason for the inconsistency. He said at hearing he failed two subjects in the first semester and then went to a university/education agent to change courses. He confirmed he said he only studied the first semester and it was a mistake he referred to studying the master’s course for two semesters. He said he was in a new country, confused, scared and homesick. The Tribunal does not accept that the applicant would be so confused for the reasons he claims that he would make a mistake and claim he was enrolled in two semesters when in fact he was enrolled in one. That the PRISMS record accords with him being enrolled for two semesters also undermines his claim it was a mistake. That the applicant was enrolled and studying the master’s course for two semesters undermines his claim he went to study the Diploma of Business in November 2018 as the master’s course was too difficult. This further undermines his claim he was enrolled in, attending classes and studying the Diploma of Business at AITC.

23. Further, the applicant has provided inconsistent evidence as to who organised his enrolment at AITC to study the Diploma of Business. At hearing he indicated he contacted the university/education agent who guided him to enrol in the course. He confirmed he did not have contact with AITC re his enrolment. He submitted that as an international student they take the word and guidance of these agents and as a result he was under the impression that it was an official College/ institution to provide education. He claims as a result he would never have thought this would become an issue. However, in his response to the NOICC he specifically indicated that he enrolled himself in the Diploma of Business.  Similarly in his written submission to the Tribunal he said he enrolled himself in this course. When the inconsistency was raised with him, he said it was a mistake. The Tribunal does not accept this explains why he would say he enrolled himself and then later say he did not but the university/education agent did so. While not solely determinative the inconsistency adds to the finding the applicant did not enrol in and attend classes in the Diploma of Business at AITC as claimed.

24. Further, the applicant has provided inconsistent evidence as to whether he spoke to the school following receipt of the NOICC. In a written response to the NOICC the applicant indicated he attempted to contact AITC, and after some difficulty he spoke to a school’s service attendant who informed him the information would be updated by the Unique Student Identifier (USI) portal. However, as noted in the Department’s decision and raised with the applicant at hearing, AITC had its RTO cancelled on 11 February 2020 which questions how he could have contacted them after receiving the NOICC. When the Tribunal questioned the applicant at hearing, he indicated that he did not contact AITC directly but a university or education agent. While not solely determinative it further undermines his claims as to being truthful that he genuinely attended the school and finished the course.

25. On the basis of the information as outlined in the s 107 notice that on 11 August 2021 the Australian Border Force received information from the Office of the Unique Student Identifiers Registrar that the applicant had not completed any course units or qualifications with AITC, evidence from the PRISMS record as outlined in the s 107 notice and on the basis of the inconsistencies and concerns from the applicant’s evidence, the Tribunal is of the view the applicant did not enrol in, pay fees, attend classes or receive a genuine certificate from AITC for studying the Diploma of Business from 13 November 2018 to 15 November 2019. It rejects his explanation as to the provision of bogus documents and in particular that he is a victim and had no knowledge they were bogus.

26. In making this finding it has considered his evidence relating to some of the subjects studied but is of the view these are general in nature, and that this does not lead the Tribunal to change its view that the applicant did not study, enrol in, pay fees, attend or receive an academic record and completion certification for the Diploma of Business from AITC.

27. It has also considered his claim that it does not make sense that he would pay fees to AITC if they were offering an unaccredited course and his written submission of the difficulties encountered at James Cook University when near the completion of the degree accreditation was not provided, and it is difficult for international students to know which institution is the right one to choose; however, these factors do not lead the Tribunal to change its view that the applicant did not study, enrol in, pay fees, receive a certificate and academic record or attend the Diploma of Business from AITC.

28. The evidence of the applicant is that he filled in and completed the application, as well as submitting the certificate indicating he successfully completed the Diploma of Business at AITC.

29. The Tribunal is therefore of the view that the applicant has provided incorrect answers in his application for the Student visa pertaining to studying and completing the Diploma of Business at AITC from 13 November 2018 to 15 November 2019. It therefore finds there has been non-compliance with s 101 in the way described in the notice.

30. The Tribunal also finds on the evidence before it that there are documents that the Tribunal reasonably suspects are counterfeit or have been altered by a person who does not have authority to do so. As it has found he did not attend or study the course, it follows that the Diploma of Business from AITC completion certificate and academic transcript provided with the visa application are bogus documents as defined in s 5(1)(b) of the Act.

31. It therefore finds that the applicant has caused bogus documents to be given. It follows that there has been non-compliance by the applicant with s 103 of the Act in the way described in the notice.

32. For the above reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

33. 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).

34. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations). The Tribunal has considered each of the circumstances as follows.

35. The Tribunal raised these with the applicant at hearing and the evidence provided as well as written evidence provided is considered below.

    The correct information

1. The applicant has submitted when this criterion was raised that he enrolled in the course, attended classes, paid fees, successfully completed the course and was provided with the completion certificate and academic record and that the bogus documents have arisen because of the fault of AITC and he is a victim.

2. However, for the reasons outlined above, the correct information is that the applicant did not enrol in, study, pay fees or successfully complete the Diploma of Business at AITC. The applicant’s successful completion of the Diploma of Business at AITC would have been relevant evidence considered when accepting the applicant met the genuine temporary entrant criterion under cl 500.212, and ultimately the grant of the Student visa. Direction No.69 being the Ministerial Direction to Assess the Genuine Temporary Entrant Criteria refers to, under 11(e), previous study and qualifications in assessing this criterion.

3. On the basis of the evidence of the applicant the Tribunal has found that the application for the Student visa was completed by the applicant.

4. The integrity of the migration programme relies on, amongst other things, applicants providing correct information in visa application forms and in their dealings with the relevant agencies including the Department. 

5. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

   The content of the genuine document (if any)

6. The applicant has submitted when this criterion was raised that he enrolled in the course, attended classes, paid fees, successfully completed the course and was provided with the completion certificate and academic record. He claims that the bogus document issue has arisen because of the fault of AITC and he is a victim. However, for the reasons outlined above the Tribunal has found that the Certificate of Completion in the Diploma of Business and the related academic transcript indicating the units completed purportedly issued by Keyboard Concepts Pty Ltd, trading as AITC and provided with the visa application are bogus documents, as the applicant never attended the course for the reasons outlined above.

7. While the applicant contended he attended the course, paid fees and successfully finished it and it is not his fault that AITC gave him bogus documents, for the reasons above the Tribunal does not accept this claim. A genuine document would therefore not show that the applicant completed this course and achieved the academic units claimed as the Tribunal has found he never attended the course or completed any units.

8. There is therefore no genuine document to consider.

9. The Tribunal gives this consideration neutral weight.

   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

10. One of the primary criteria for the grant of the Subclass 500 (Student) visa is that the applicant meets the genuine temporary entrant criteria.  Via Direction No.69 the decision maker is to consider their potential circumstances in Australia. In particular, at 11(e), the Direction directs the decision maker to consider the applicant’s previous study and qualifications.

11. The Tribunal considers that the decision to grant the visa was therefore based, in part, on the incorrect information in the visa application form as to his successful completion of the Diploma of Business at AITC from November 2018 to November 2019, and on the supporting bogus documents as to successfully completing this course when he applied for the visa in March 2021.

12. As outlined above, the Tribunal does not accept that he was not aware that bogus documents and incorrect information had been provided with his application as it has found he did not enrol, pay fees or attend the course as claimed.

13. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

    The circumstances in which the non-compliance occurred

14. The circumstances in which the non-compliance occurred are outlined above. Essentially, the applicant submits in his evidence that he studied at AITC the Diploma of Business from  13 November 2018 to 15 November 2019, attended the classes, paid fees and successfully completed the course and was provided by AITC with the certificate and academic record he submitted with his application. He submits that he was a genuine student attending the  Diploma of Business at AITC and whatever has occurred in the provision of bogus documents is the fault of AITC. He claims he only became aware of the difficulties with AITC when the Department contacted him regarding cancellation. He claims he has not altered any documents nor submitted any bogus documents and he is the victim in this situation. He claims he was guided as an international student by his education agent to enrol in the course and he took their word and guidance and never believed this would be an issue. He submits he should not be punished for what AITC did as he had no knowledge of it. He claims he has not provided incorrect information as he attended and finished the course.

15. However, the Tribunal does not accept that he was not aware that inaccurate information had been provided with the visa application or bogus documents submitted with his application for the visa as it has found he did not enrol in, attend, study, pay fees or successfully complete the Diploma of Business at AITC.

16. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

    The present circumstances of the visa holder

17. In his evidence to the Tribunal at hearing the applicant referred to his study in Australia and the effect that the cancellation of his visa would have on him.

18. The applicant said at hearing he was enrolled and studying at Lennox College the Certificate III in Light Vehicle Mechanical Technology and was then to study the Certificate IV in Automotive Mechanical Diagnosis when he had to cease studying due to the cancellation of the visa in April 2022 and a no study condition being placed on the visa. He said his aim is to complete these courses and return to his country and work in the area to look after his family. He said he has to look after his family and he wants to study to go back with the Australian degree and open the business. In his NOICC he refers to being the eldest son and having to take care of his parents.

19. The Tribunal noted that the applicant had only submitted an Offer of Enrolment to study these courses from 25 January 2021 to 12 June 2022 and 25 July 2022 to 22 January 2023 and no evidence of enrolment or studying these courses. It raised with him via s 359AA that there is no evidence in the PRISMS record that he was enrolled in or studying in these courses at Lennox College while the holder of the visa granted in March 2021 up to the date of cancellation of this visa and it questions whether he is in Australia to study as he claimed. He said he commenced these courses, then there was COVID-19 lockdown; he attended online and he also had a kidney stone operation in 2022 but is much better now. He also said other than the Diploma of Business at AITC he had not successfully completed any other course until cancellation of the visa in April 2022.

20. The applicant was given until 12 March 2023 to provide evidence of enrolment and studying these courses as agreed. However, no evidence of enrolment or study of these courses until the visa was cancelled has been provided as at the date of this decision.

21. The Tribunal accepts that he has been unable to study since the cancellation of the visa as he has a no study condition placed on his Bridging visa. However, as there is no evidence he was studying a Certificate III in Light Vehicle Mechanical Technology and was then to study the Certificate IV in Automotive Mechanical Diagnosis from March 2021 up to when the cancellation occurred in April 2022 and his evidence he has not completed any course in Australia other than the Diploma of Business at AITC, which the Tribunal has found above he did not study, it does not accept he is in Australia to study to provide for his family and open a business on return, as he claimed and that cancellation would affect his future plans.

22. In his response to the NOICC he refers to studying different courses, being the Advanced Diploma of Leadership and Management leading to the Graduate Certificate in Management in Lennox Institute and wanting to return to the family run business and pursue his future career goals. He refers to his father wishing to retire in two years. He said it has been his dream to study in Australia. He refers that studying these courses gives him the perfect international exposure and networking opportunities which he would not be able to access in his home country. He said he has finished 90% of the Advanced Diploma of Leadership and Management and he wants to finish the Graduate Certificate in Management and provide his family with the basic luxuries they deserve. He also referred to studying these courses in his submission to the Tribunal.  However, at hearing the applicant did not refer to studying these courses or returning to the family business. The Tribunal is of the view this undermines his claim he is in Australia to study these courses and return to the family business, to provide for his family.

23. He also refers to the stress he encountered in Australia, being homesick, the different study environment and that it was hard to get a grip on life and settle down as reason for his poor study history soon after arrival, which the Tribunal accepts as factors encountered by many international students. However, the Tribunal views these as short-term factors soon after arrival and the applicant arrived in July 2018 and as at the time of the cancellation of the visa, over three and a half years later, he had not successfully completed any course.

24. The applicant said he is not currently in a relationship and has not interacted with the community. He said he is working 20 hours a week in a warehouse. He said he is not presently sending money to his family in India.

25. The Tribunal gives this consideration neutral weight.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

26. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

27. The Tribunal finds there are no other instances of non-compliance by the applicant known to the Tribunal. The Tribunal gives this factor neutral weight.

    The time that has elapsed since the non-compliance

28. The non-compliance occurred when the application was made on 15 March 2021. While the Tribunal acknowledges that since this period the applicant has established himself in Australia, the Tribunal notes the applicant has been on notice, since being notified by the Department on 10 February 2022 that there was evidence of non-compliance with the visa application which may result in the cancellation of the visa.

29. In these circumstances the Tribunal gives this neutral weight.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

30. There is no information before the Tribunal which suggests that there have been breaches of law by the applicant since the non-compliance.

    Any contribution made by the holder to the community

31. At hearing the applicant indicated he had not contributed to the community. The Tribunal gives this consideration neutral weight.

32. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be any consequential cancellations under s 140

33. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor neutral weight.

    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

34. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

100.   If the visa remains cancelled, the applicant would continue to hold a Bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however, there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

1. If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under public interest criterion (PIC) 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore. There is no restriction on which visa he can apply for once he leaves Australia. However, those are also intended and legitimate consequences of cancellation.

102.   The Tribunal gives this consideration neutral weight.

Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

103.   The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.

104.   There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

105.   The Tribunal gives this consideration neutral weight.

Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

106.   The applicant referred to having to look after his parents who are retired, and his brother who is studying. As to how cancelling the visa has and would affect this, he said he wants to finish the Certificate III in Light Vehicle Mechanical Technology and the Certificate IV in Automotive Mechanical Diagnosis. He said these courses are not provided in India; Australian qualifications are recognised worldwide and then he can start a business in the area of study, earn good money and support his family. He said he was currently not sending money to his family.

107.   While the Tribunal accepts there is a degree of hardship for applicants whose visa is cancelled as to the lack of obtaining Australian qualifications, given there is no evidence the applicant successfully completed any course from his arrival in July 2018 on a Student visa until a further Student visa was cancelled in April 2022 and he was not enrolled in the courses Certificate III in Light Vehicle Mechanical Technology and the Certificate IV in Automotive Mechanical Diagnosis and had to stop studying due to the cancellation on the evidence before it, the Tribunal gives this factor neutral weight in favour of cancelling the visa.

1. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant had given incorrect information and bogus documents with his visa application and that he did not comply with s 101(b) and s 103 of the Act. The Tribunal has found that there are grounds for cancelling his visa.

109.   The Tribunal’s concern is that the decision to grant the visa was based on incorrect information and a bogus document because the applicant’s past study would have been relevant to that decision of whether the applicant met the genuine temporary entrant criteria. This factor also weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa as does his poor academic record prior to the cancellation of his visa by the Department.

110.   The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant and as outlined above there are factors that weigh in favour of the exercise of the Tribunal’s discretion to cancel the visa. The Tribunal is mindful of the seriousness of providing incorrect information and bogus documents in support of an application for the visa.

111.   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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

112.   The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Gabrielle Cullen
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.