Mohamed Ziard (Migration)

[2022] AATA 3650

Mohamed Ziard (Migration) [2022] AATA 3650 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Ishfahan Mohamed Ziard

REPRESENTATIVE:  Mr Narayan Prasad Humagain (MARN: 1802195)

CASE NUMBER:  2100726

HOME AFFAIRS REFERENCE(S):          BCC2020/2640020

MEMBER:Michael Biviano

DATE:8 September 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 8 September 2022 at 4:55 pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant gave an incorrect answer in the visa application – failure to disclose the Charges to the Department – criminal Charges – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 104, 107, 109
Migration Regulations 1994 (Cth)

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 delegate cancelled the visa on the basis that the applicant failed to inform the Department of a change in circumstances in his visa application, which resulted in the answer to a question in his visa application being incorrect in contravention of s104 of the Act, in that after making the visa application, but before the grant of the student visa he had failed to inform the Department that he had been charged with various offences by the Victoria Police, including trafficking cannabis (2 counts), possessing cocaine, and knowingly dealing with proceeds of crime (2 counts).

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 3 June 2022 to give evidence and present arguments.

5. The applicant was represented in relation to the review.

6. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and the Migration Regulations 1994 (Cth) (the Regulations) have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.

7. 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

8. 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.

9. 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.

10. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

11. 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 s107 notice was constituted by the Notice of Intention to Consider Cancellation (NOICC) dated 11 December 2020. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 104 of the Act in the following respects: -

    a.On 10 July 2020 the applicant lodged an application for Student visa. As part of the applicant’s application, he completed online application form Application for a Student Visa.

    b.On page 12 of the application under the heading Character declarations the applicant provided the following information (in bold) to the question:

    Has any applicant ever been charged with any offence that is currently awaiting legal action? No

    c.On page 15 of the application under the heading Declarations the applicant provided the following information (in bold) to the questions:

    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
    …
    Will inform the Department in writing immediately as they become aware of a change in circumstances (including change of address) or if there is any change relating to information they have provided in or with this application, while it is being considered.
    Yes

    [8063588] CLD202040446378 - Notice of Intent

    d.Based on the answers and information in the application and having satisfied the relevant criteria, the applicant was granted a Student visa on 30 October 2020.

    e.Since the grant of the visa, the Department received information which indicated the applicant did not inform the Department of a change in his circumstances prior to the decision, which related to an answer provided in his Student visa application form, specifically that he had not been charged with an offence that is awaiting legal action.

    f.On 14 August 2020, the applicant was charged by Victoria Police under the name Ishfahan ZIARD with the following offences:

    ·Traffick Cannabis (two counts);

    ·Possess Cocaine;

    ·Knowingly Deal with Proceeds of Crime (two counts);

    (Charges)

    g.The applicant was due to appear at Melbourne Magistrates Court on 28 January 2021 in relation to the Charges, and there appeared to be no record of the applicant having contacted the Department in writing to advise them that he had been charged with offences while his Student visa application was being processed.

    h.It appears that this change in the applicant’s circumstances was not known to the Department at the time a decision was made to grant the Student visa. Had the applicant’s new circumstances been known to the Department at the time of his visa application was being processed, his application would have been required to undergo further checks prior toa decision being made. Therefore, it appears the applicant did not inform the Department of the change in his circumstances in order to achieve an immigration advantage.

    i.Based on the above information, it appears the applicant had failed to comply with section 104 of the Migration Act 1958. If this information is correct the applicant’s your Student (subclass 500) visa is liable for cancellation under section 109 of the Migration Act 1958.

12. On 24 December 2020 the applicant provided a Response to the NOICC being a statement from the applicant dated 23 December 2020 (Response) and submissions from the applicant’s representative dated 23 December 2020 (Submissions) which relevantly claimed:

    ·The applicant accepts there was non-compliance as made out in the Notice, however submitted that at 26 years of age he was young and experiencing “anxiety, fear, depression and other feelings of that negative nature. He had to visit police stations and the Magistrates Court under circumstances that were not pleasant to him.”

    ·The applicant in the Submissions claims that “Due to the emotional impact he suffered as a result of the consequences of his wrongdoing his main concern was to demonstrate to the relevant authorities that this was a once off event and that the issues themselves were of a minor gravity.”

    ·He was not honestly aware that he had to inform the Department of these Charges or that the Charges would affect his visa conditions since his application had already been lodged on 10 July 2020, before the Charges.

    ·He did not try to hide the information from the Department, as he took a police check which stated the Charges, and he knew that the information in police check would be received by the Department. He claimed that if his objective was to hide this information, he would not have undertaken a police check.  

    ·He was not aware that he had to directly inform the Department of the Charges and his failure to inform was not done purposely and he was scared as it was the first time something of this manner had happened to him and he wanted to sort this matter out as soon as possible.

    ·COVID-19 pandemic had hit hard as an international student as he lost his job which resulted in financial hardship and caused him mental stress which lad to depression and did not bring out the best in him as he was here by himself. He claimed he had a mental health plan in place to recuperate.

    ·He claimed that it was not his intention to mislead or gain an immigration advantage and he sincerely and graciously apologised for the inconvenience caused and asked that his visa not be cancelled by reason of a genuine mistake from his end.

    ·He completely missed the fact that he had a duty to inform the Department of the change in circumstances and he was not in a good state of mind and he did not think this would affect the visa application that had been lodged or visa conditions as he was going through a lot.

13. The applicant by the Response and in evidence admitted the non-compliance and breach of s 104 of the Act.

14. The Tribunal notes that the applicant is a 28-year-old Sri Lankan national who obtained a Student (Class TU) (Subclass 500) visa on 30 October 2020, which had a visa expiry date of 9 January 2022.

15. The Decision Record of the delegate of the Department of Home Affairs dated 14 January 2021, which was provided to the Tribunal by the applicant, confirms the Department cancelled the student visa and the reasons for the cancellation of the visa (Decision Record).

16. The Decision Record confirms that the applicant arrived in Australia on 30 January 2022 and that he held an enrolment in a Bachelor of Business course at Latrobe University.

17. The applicant in his Genuine Temporary Entrant Statement in the application for a Student visa claimed: -

    I, Mohamed Ziard Mohamed Ishfahan of age 25, completed the Degree in Hospitality Management at Holmesglen TAFE in Melbourne. I am interested to continue and pursue a course in Commercial Cookery certificate III and IV at Academies Australasia Polytechnic Institution, Australia. I was born on the 09th of August 1994, me being the eldest son in the family of 3. My mother is Hairdresser cum Beautician at Sha's Salon Running her own business registered under her name. I completed my Ordinary Level in 2011 and Advance Level 2013 at Colombo International School Kandy. I wanted to get a feel of the real experience in a hotel so I started my work experience at Earls Regency Hotel Kandy (which is a 5 star hotel) for 8 months from December 2013-July 2014 as a Trainee Front Office receptionist instead of taking a gap year (kindly note that the respective organization does not issue any services letters unless a period of 12 months is served). After I completed my work experience, I moved on to complete a Certificate Level in Front office from August 2014-February 2015 at Dutch Lanka Hotel
    School. There after I started my Diploma in Hospitality and Tourism Management at Management and Science Institute Colombo which is a branch Institute of Management and Science University Malaysia in March 2015-July 2016. After graduating from the bachelor's in hospitality management at Holmesglen, I wanted to continue my studies and enroll for commercial cookery certificate III and certificate IV at Academies Australasia Polytechnic Institution, Australia.

    My parents and my uncle will be funding me for my Tuition fees, food, accommodation and my personal expenses. To add the above I will also be looking for a part time job relating to the field I'm specializing in so that I would be getting exposure to both theory from and then applying it practically while working. Since the permitted work hours for a student is 20 hours a week, I'm willing to work during my free time.

18. The applicant in evidence claimed that: -

    a.He had completed a Bachelor of Hospitality Management at Holmesglen Institute which he completed in 2019 and graduated with the degree.

    b.The applicant had gained employment at the Pan Pacific Hotel, as a food and beverage attendant and he claimed that he enjoyed working in that position.

    c.The applicant had a problem with his right knee. He initially claimed in evidence that as a consequence of a basketball injury, he required a knee reconstruction on his right knee, which took place at St Vincent’s Hospital in mid-2018, but then claimed it occurred June 2019.

    d.He gave evidence that his brother came to Australia in June 2019 at the time of the surgery, and he remained here with the applicant. The applicant’s brother remains here on a student visa and he has since completed a Certificate III and IV in Commercial Cookery, and an Advanced Diploma of Hospitality Management.

    e.As a consequence of the knee injury, he was unable to continue working in the hotel position which was a physical role and he lacked mobility. He claimed that the lack of mobility occurred due to his knee and the knee reconstruction, caused substantial interruption and continued for approximately 2 years.

    f.He claimed on 10 July 2020 he applied for a student visa to study a Certificate III and IV in Commercial Cookery at Academies Australasia Polytechnic.

    g.He failed to complete those courses because of the cancellation of his student visa and his enrolment in the courses was cancelled. He was unable to recall when his studies ceased. He claimed that on the cancellation of the visa he lost all work and study rights.

    h.He claimed that he wanted to complete the Commercial Cookery courses, so that he could work as a chef and then obtain a temporary residency visa to work in the hospitality industry. He claimed that he eventually wanted to work as a restaurant manager or hotel manager, and eventually become a general manager of a hotel. He claimed that he required the Commercial Cookery qualifications to get the position of restaurant manager. He claimed that he may also open a restaurant/café back in Sri Lanka.

    i.The applicant claimed that as he was here as a student and due to his knee condition, he had lost full time in employment and that he had undertaken work as an Uber driver but due to the restrictions imposed by COVID-19 pandemic there was no work, and he and his brother were struggling to survive here due to lack of support. He claims that he needed to support himself and his brother and he got involved in trafficking and using illegal drugs.

    j.He was charged with the Charges on 14 August 2020, and he admitted the Charges laid against him regarding trafficking cannabis, possessing cocaine, and dealing with the proceeds of crime, and pleaded guilty to the Charges. The applicant claims that the offences were a one-off and his offending conduct was solely for the purpose of providing money for their survival.

    k.The applicant claimed that notwithstanding he had made his application for a student visa, less than one month before being charged with offences, that he did not know that he had to inform the Department of the Charges.  He admitted that he did not notify the Department of the Charges.

    l.The applicant obtained his student visa on 30 October 2020.

    m.The applicant applied for and obtained a Nationally Coordinated Criminal History Check Certificate which was dated 4 December 2020 for the purpose of applying for a job as a driver with Door Dash.

    n.The applicant pleaded guilty to the Charges which were heard by the Melbourne Magistrates Court and on 29 March 2021, the Court found the charges proven without conviction and made a Community Correction Order, which is very serious sentence, and imposed conditions as to treatment and mental health assessment.

    o.The applicant claimed that he has completed the Community Correction Order, submitted to six psychologist sessions and is free from drugs and his testing is negative.

    p.He is living with his brother who is looking after the applicant and he wants to put the matter behind him and recommence his studies and pursue his career path.

19. The applicant submitted the following documents to the Tribunal in support of his application: -

    a.Nationally Coordinated Criminal History Certificate dated 4 December 2020;

    b.Counsel’s Memo to Instructor;

    c.Department of Justice Order Completion Report;

    d.Department of Justice Assessment Outcome Report;

    e.Community Correction Order made by the Magistrates Court of Victoria dated 29 March 2021;

    f.Report of Forensicare;

    g.Applicant’s personal statement (Statement); and

    h.Police Check dated 1 June 2022.

20. The Tribunal made directions at the hearing on 10 June 2021 allowing the applicant until 10 June 2022 to file any further documentation in support of the review application.

21. The applicant filed with the Tribunal three test results of urine samples provided for the purposes of ascertaining whether the applicant had taken a prohibited substance, confirming he was free from drugs, and a statement from his brother here in Australia. The statement generally supports the claims made by the applicant in evidence.

22. The Tribunal has considered the applicant’s evidence, and the abovementioned documents, together with the documents provided to the Department and including but not limited to the Response and the Submissions.

23. The applicant in evidence and in the Response admitted that at the time of making the application for a student visa, the information contained therein was accurate, but that at the time he was charged with the Charges, he did not notify the Department of his change in circumstances and of the Charges prior to the grant of the visa.

24. The applicant submitted he was not aware that he was required to report his change in circumstances—namely the Charges—to the Department while his application was being processed.

25. The applicant holder also submitted that he was experiencing poor mental health at the time due to distress at being charged for the first time and having to attend a police station and court.

26. He claims that the Department would have been aware of the Charges if they had undertaken a police check of his criminal history. The Tribunal notes that the record of the Police Check supplied by the applicant, does not identify when the Charges were recorded.

27. In the circumstances, the applicant had an obligation under section 104 of the Act to correct an answer in his visa application when the change in circumstances occurred before the visa was granted. The Tribunal is satisfied that this obligation was made clear by the relevant declaration which was agreed to by the applicant when he completed the visa application form, in which he agreed that he would inform the Department of a change in circumstances relating to information provided in or with his application, while it is being considered.

28. Accordingly, his student visa was granted without the Department being made aware of the Charges. The Charges are of a serious nature and the applicant would have been aware that the existence of the Charges would have been of interest to the Department in considering his visa application.

1. Additionally, the Tribunal considers the failure to disclose the Charges to the Department constitutes a contravention of s 104(1) of the Act.

2. For these reasons, the Tribunal finds that there was non-compliance with s 104(1) of the Act by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

3. 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).

4. 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 Regulations. Briefly, they are:

   ·     the correct information

   ·     the content of the genuine document (if any)

   ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

   ·     the circumstances in which the non-compliance occurred

   ·     the present circumstances of the visa holder

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

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

   ·     the time that has elapsed since the non-compliance

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

   ·     any contribution made by the holder to the community.

5. 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.

6. As discussed above the applicant has outlined in evidence and the Response and the Submissions the reasons why the visa should not be cancelled.  

7. The applicant claims that he did not intentionally seek to mislead the Department. However as discussed above the applicant was aware from completing the application and seriousness of the Charges that he needed to inform the Department of his change in circumstances.

8. The applicant claims he was in a poor mental state and dealing with the criminal charges which contributed to him not informing the Department of the Charges and the change in circumstances. There was no medical evidence presented that his mental state was such that he was unable to notify the Department of the Charges. In fact, the applicant’s disposition was such that he was able to give instructions and engage lawyers to deal with the criminal prosecution. The applicant gave evidence that he had six counselling sessions with a psychologist, and he submitted the letter to the psychologist dated 4 December 2020 which sets out a provisional diagnosis of a situational crisis with depressed mood. The letter confirms the referral for six more treatment sessions. The medical evidence did not address whether by reason off his mental state, he was unable to notify the Department of the Charges.

9. He claimed in evidence that he committed the offences to raise money to survive during the COVID-19 pandemic lockdowns as he could not obtain work. The applicant’s evidence clearly demonstrated he was aware that he was committing an offence by conducting the actions he was undertaking. 

10. The applicant claimed in evidence that he pleaded guilty to the charges and that he had completed the time of the Community Correction Order, and that he should now be allowed to get on with his life and complete his studies. The applicant in the Statement claimed that he obtained a recent Police Check which indicates that his record is clear, and it was a one-off matter.  However, the applicant’s conduct that led to the cancellation of the visa and is the subject of this application is his failure to notify the Department of his change in circumstances, namely the Charges and whether they give rise to the cancellation of the visa.  

11. The applicant claimed in the Statement that he was so pre-occupied with the Charges and being away from home, in the middle of a pandemic, recovering from knee surgery and being at a Police station for the first time – his mental state went down hill and he did not realise that he had to notify the Department. While the Tribunal accepts that the applicant was going through a difficult time: -

    a.He was here with his brother who was providing him with support.

    b.His knee surgery was more than a year before the charges; and

    c.The entire country was going through the pandemic.

12. The reasons advanced by the applicant do not excuse the failure of the applicant to inform the Department of his change in circumstances where he was aware his visa application was awaiting determination and that the Charges, in particular serious criminal charges would impact his visa application but also in light of the declarations given in the visa application that he knew that he was obliged to inform the Department of a change in his circumstances

13. The applicant claims in the Response and the Statement that it was not his intention to mislead the Department and that the contents of his application were correct. Whilst this maybe the case, it does not excuse the applicant of not informing the Department of the Charges before the grant of the visa.

14. The Tribunal accepts that the applicant has since the cancellation of the visa not been working or studying. The applicant claimed in evidence that he wishes to complete the Certificate III in Commercial Cookery and then a Certificate IV in Commercial Cookery and thereafter apply for a temporary residency visa to obtain work experience so that he can return to Sri Lanka to work either as a chef, restaurant manager, or a general manager back at home. He claimed that he may want to return home and open a restaurant/café.

    Assessment of factors

15. The Tribunal has assessed the applicant’s Response, the Submissions, the Statement, the supporting documents to the Department and the Tribunal, his evidence and all the prescribed circumstances as set out in reg 2.41 as follows:

    (a) The correct information

16. As discussed above the applicant had provided the correct information when he lodged the application, but on being charged with the Charges, the answer to the question: -

    Has any applicant ever been charged with any offence that is currently awaiting legal action?

    which the applicant responded “No”, which was no longer correct.

17. The applicant made further declarations in the application for the student visa on page 15 of the application under the heading Declarations that: -

    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
    …
    Will inform the Department in writing immediately as they become aware of a change in circumstances (including change of address) or if there is any change relating to information they have provided in or with this application, while it is being considered.
    Yes

18. By giving those declarations the applicant was aware he had to inform the Department of a change in circumstances. The applicant has provided numerous reasons for failing to inform the Department of the change in his circumstances and they are discussed in detail above at paragraphs 32 to 40 above. For the reasons set out above, the Tribunal does not accept that those matters provide a reasonable excuse for the failure to inform the Plaintiff of the change in circumstances.

19. The applicant confirms and accepts in evidence, the Response, the Statement and the Submissions that he did not inform the Department of the change in circumstances, which had the effect that the information in the visa application in response to the question about the criminal charges became incorrect and his visa was granted on the basis of his response to the question that he had not been charged with any offence awaiting legal action.

20. The Tribunal gives this consideration substantial weight in favour of cancelling the visa.

    (b) The content of the genuine document (if any)

21. The content of a genuine document is not in issue in this matter, as the issue of non-compliance relates to incorrect information in a visa application and there is no issue as to whether he has provided genuine documents.

22. The Tribunal gives this consideration no weight in favour of cancelling the visa.

    (c) 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

23. The applicant in the Submissions submitted the change of circumstances experienced by the applicant were not determinant in the decision to grant him a visa. He claims that the occurrence of the events of 14 August 2020 are not under the scope of section 501 of the Act which would have been crucial in the decision making. It is important to note that section 501 of the Act which relates to character testing of visa holders and visa applicants is not relevant to this matter.  

24. The applicant in the Submissions also submitted that according to Procedural Advice Manual (PAM) visa cancellation power with respect to non-compliance with section 104, the instructions provide relevant examples of different scenarios of non-compliance where the undisclosed change in circumstances is material to the purpose of the visa, such as relationship breakdown between sponsor and applicant in a Partner visa application, where the applicant no longer has a sponsor. The applicant submitted that “In the above example presented by the relevant PAM, the failure to notify to the Department about the changes of circumstances (v.gr. lack of sponsor) constitutes a severe omission that alter the core and purpose of a sponsored visa. It is understood that such denaturing omission will be sanctioned with a visa cancellation. In the present case under review, the gravity of the offences may be waived by the decision maker to grant a visa.”

25. The Tribunal has considered the applicant’s submissions. However, in this particular case, the applicant had an obligation under section 104 of the Act to correct an answer in his visa application when the change in circumstances occurred before the visa was granted. The applicant did not comply with this obligation. It is on this basis and these circumstances that grounds for visa cancellation have been enlivened. If the applicant had disclosed the Charges before his visa was granted, the Charges would have been considered and assessed before a decision was made whether or not to grant the visa.

26. The Tribunal notes that in assessing the applicant’s eligibility for the visa, one of the requirements the delegate assessed was whether the applicant satisfied cl 500.212, as to whether he was a genuine applicant for entry and stay as a student.

27. In making that assessment as to whether the applicant is a genuine temporary entrant, the applicant’s circumstances as a whole would need to be considered to determine that this requirement is satisfied. In assessing those matters, regard is had to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The decision maker will have regard to a number of circumstances including:

    a.the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    b.the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    c.if the applicant is a minor, the intentions of a parent, legal guardian, or spouse of the applicant; and

    d.any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

28. Accordingly, the decision maker will consider the applicant’s circumstances and whether he satisfies the primary criteria for the grant of student visa including his character. Importantly the Department relies on the truthfulness of the applicant’s responses in the application. If the Charges had been disclosed, they would have been one of the factors that would have been taken into consideration in the assessment of the applicant’s application for a student visa. It is highly probable that the disclosure of the Charges, which are of a serious nature would have at least invited further scrutiny.

29. Plainly had the correct information been known at the time of assessing the application and making the decision it may have resulted in the delegate making a different assessment and decision.

30. The Decision Record confirms that the Department made the decision based on the answers contained in the application. The applicant in evidence had claimed that the Police Check he obtained on 4 December 2020 for a job application and provided to the delegate, disclosed the Charges. Notwithstanding a summary of the Charges appear in the Police Record, it is unclear when those Charges were entered into the database and there is no evidence that the Department was aware of the Charges at the time of the grant of the visa.

31. The Tribunal accepts that the issue of the Charges would have resulted in the delegate making further enquiries and investigations when considered in light of the circumstances of the applicant, the delegate may have made a different assessment.

32. Accordingly, the Tribunal gives this consideration substantial weight in favour of cancelling the visa.

    (d) The circumstances in which the non-compliance occurred

33. The non-compliance occurred when the applicant did not inform the Department of his change in circumstances, in that he had been charged with the Charges.

34. As discussed above, especially at paragraphs 34 to 40 above and in evidence at paragraph        18 above, the applicant claims that he was emotionally distressed by reason of the Charges and he had not been required to deal with criminal proceedings previously, and he was not aware that he had to disclose the Charges to the Department.

35. The applicant by giving the responses set out in the application for the visa, was aware that he was required to disclose the Charges to the Department. Furthermore, while the Tribunal accepts that the applicant was going through a difficult time with the Charges and he was under enormous stress, the reasons advanced by the applicant do not excuse the failure of the applicant to inform the Department of his change in circumstances where he was aware his visa application was awaiting determination and that the Charges, in particular serious criminal charges would impact his visa application.

36. The applicant claimed in evidence that he did not intent to take advantage of the visa application by not reporting the Charges. He claimed by undertaking the Police check on 4 December 2020 which stated the Charges had been laid, he had nothing to hide and believed that the Department would have been aware of the Charges. The applicant submitted a Police check dated 4 December 2020, which post-dated the granting of the visa. It is unclear when the Charges were recorded in the database on which the Police check was prepared. Even if the Charges had been recorded in the database prior to the grant of the visa, there is no material before the Tribunal to confirm that the delegate consulted that database from the date of the Charges on 14 August 2020 to the grant of the visa on 30 October 2020. The difficulty with the applicant’s evidence on this issue is that there is no guarantee that the Department would have undertaken a police check, and it may have merely relied on the declarations given by the applicant in the application. Alternatively, the delegate may have undertaken the Police check before the Charges were laid.

37. The applicant knew by reason of the declarations made in the visa application that he had a positive obligation to disclose the Charges and he has not done so. The Decision Record confirms that the applicant completed the visa application online himself. He was aware of his obligations to report to the Department.

38. As discussed above the Tribunal accepts that there has been non-compliance as set out in the NOICC.

39. Accordingly, the Tribunal does not accept that the provision of the visa application form with incorrect information was due to circumstances beyond his control. It was open to the applicant to inform the Department of the Charges.

40. The Tribunal gives this consideration substantial weight in favour of cancelling the visa.

    (e) The present circumstances of the visa holder

41. The applicant arrived in Australia in September 2017 on a student visa and had completed a Bachelor of Hospitality at Holmesglen Institute. He had commenced studying the Certificate III in Commercial Cookery and was enrolled in a Certificate IV in Commercial Cookery at Academies Australasia Polytechnic and gave evidence that he ceased those studies that when his visa was cancelled. He also had a job which he lost as a consequence of the visa cancellation.

42. The Decision Record confirms that he had completed two semesters of the Certificate III in Commercial Cookery.

43. He gave evidence that he wanted to complete those studies here in Australia, with a view of gaining work experience here in Australia before returning back to Sri Lanka.

44. The applicant pleaded guilty to the Charges and has completed the penalty of the 12-month Community Correction Order and counselling ordered by the Court. Since the cancellation the applicant has been prevented from studying or working.

45. He claims that he wants to complete the Cookery courses before he returns home for his future career. The applicant in evidence confirmed that he had not told his parents about the Charges and that they had provided him with some financial support.

46. The Tribunal notes that if his visa is cancelled, the applicant would no longer hold a visa to lawfully reside and study in Australia. The Tribunal notes that this would cause him both emotional hardship and financial hardship as he would no longer be permitted to study towards an educational qualification in Australia as he had planned and desired to complete.

47. Furthermore, it would mean his returning to Sri Lanka in circumstances before he could complete his studies, in particular the Certificate III course which he had part completed at substantial cost.

48. It would cause financial hardship, in that the tuition fees that his family had paid for the Certificate III would be lost. If the visa is cancelled, he will be unable to complete his studies or return to employment.

49. The cancellation of the visa on 14 January 2021, has caused his hardship as he has been unable to study and work, and he has been supported here by his brother.

50. The Tribunal accepts that taking away the applicant’s opportunity to complete his studies here will be detrimental to him.

51. The Tribunal accepts that the applicant has established significant ties to Australia with his study, employment and friends, which would be severed by the cancellation.

52. The Tribunal gives this consideration significant weight against cancelling the visa.

    (f) The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act

53. There is no evidence before the Tribunal that would suggest the applicant’s behaviour does not accord with his obligations under Subdivision C of Division 3 of Part 2 of the Act. He has been compliant through the cancellation process.

1. The Tribunal gives this consideration marginal weight against cancelling the visa.

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

2. The Decision Record does not indicate there are other instances of non-compliance by the applicant.

3. The Tribunal gives this consideration marginal weight against cancelling the visa.

   (h) The time that has elapsed since the non-compliance

4. The non-compliance occurred when the applicant was charged with the Charges and did not notify the Department of the Charges. Such non-compliance occurred when the Charges were laid, which took place on 14 August 2020.

5. A period of just over 2 years has lapsed since the non-compliance which is significant. He has connections and ties here through work study and friendships developed, prior to the cancellation of the visa.

6. The Tribunal gives this consideration some weight against cancelling the visa.

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

7. The Decision Record confirmed that there was no information before the delegate to indicate the applicant has breached any laws since the non-compliance occurred. There is no evidence before the Tribunal to suggest otherwise.

8. The Tribunal gives this consideration some weight against cancelling the visa.

   (k) Any contribution made by the holder to the community

9. The applicant both in evidence claimed that he had worked in his previous employment and had applied to undertake volunteer work at a restaurant at Hunter’s Kitchen and Bar, in Albert Park. However, he had not undertaken such work as required a Police check. He had also undertaken studies, paying tuition fees.

10. Whilst these matters establish that he has made contributions to the community, the Tribunal considers that such contribution to the community has not been substantial.

11. The Tribunal gives this consideration marginal weight against cancelling the visa.

    Other matters

12. In making its assessment of the applicant’s evidence, Response and the applicant’s application, the Tribunal has considered the following other relevant matters:

    Whether there are persons in Australia whose visas would, or may, be cancelled consequentially

13. The applicant obtained a visa on his own and there are no dependents to his visa.

14. The Tribunal finds that if it decides to cancel the visa, it will not result in the consequential cancellation of any other person’s visa pursuant to s 140 of the Act.

15. Therefore, the Tribunal gives this consideration no weight in favour of or against cancelling the visa.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

16. The applicant has not applied for protection nor made any claims that returning to his home country would result in significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations, if the visa were to be cancelled and the applicant had to return to his home country.

17. The policy guidelines require an assessment as to whether Australia would be in breach of its international obligations including the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).

18. There is no evidence before the Tribunal to indicate that the applicant has any minor children in Australia whose interests may be adversely affected if the Tribunal decides to cancel the visa.

100.   In such circumstances the Tribunal does not consider that cancelling the visa would potentially result in a breach of Australia’s obligations under the CROC or the ICCPR.

101.   In all those circumstances, the Tribunal is satisfied that cancelling the visa would not potentially lead to the applicant being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention, or in breach of the Refugee Protocol.

102.   Accordingly, the Tribunal gives this consideration no weight in favour of or against cancelling the visa.

Whether there are mandatory legal consequences to a cancellation decision

103.   A visa cancellation may result in the applicant being detained under s 189 and liable to be removed from Australia under s 198 of the Act as he would no longer hold a valid visa.

104.   If the Tribunal decides to cancel the visa, as a citizen of Sri Lanka it would be open to the applicant to return to that country, to mitigate the possibility of being placed in immigration detention. In such circumstances the Tribunal does not consider there is potential for the applicant to be detained indefinitely.

105.   Further the applicant may be subject to s 48 of the Act preventing him from applying for further visas while in Australia and he is likely to be affected by PIC 4013 limiting the granting of a further temporary visa for a specified period.

106.   While these matters impose substantive legal consequences that flow upon the cancellation of the visa, the Tribunal notes that is the effect of both the legislation and regulatory framework that has been enacted and put in place.

107.   The Tribunal give this consideration marginal weight against cancelling the visa.

Any other relevant matters

108.   The Tribunal is not aware of any other relevant matters to be considered.

Conclusion

109.   Having considered the above circumstances, 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

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

Michael Biviano
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.

104Changes in circumstances to be notified

(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4)Subsection (1) applies despite the grant of any visa.

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.