Mohammed (Migration)

[2021] AATA 543

Mohammed (Migration) [2021] AATA 543 (26 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sohail Qureshi Mohammed

CASE NUMBER:  1907750

HOME AFFAIRS REFERENCE:               BCC2017/3467597

MEMBER:L. Symons

DATE:26 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2021 at 3:54pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – request for postponement of hearing – unstable Internet and telephone network in rural India – ground for cancellation – incorrect information in visa application – financial capacity – bogus document – purported ‘Loan Letter’ from the State Bank of India – consideration of discretion – visa grant based partly on incorrect information and bogus document – responsibility of the Education Agent – applicant’s careless disregard for his own obligations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 99, 100, 101, 103, 107, 109

Migration Regulations 1994 (Cth), r 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 (the Act).

2. The applicant is a national of India. On 10 March 2017, he made an online application for a Student (Higher Education Sector) (subclass 500) visa. On 21 April 2017, he was granted the visa with an expiry date of 15 September 2019. On 1 February 2019, the delegate sent him by email a Notice of Intention to Consider Cancellation (NOITCC) 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.

3. On 11 February 2019, the applicant’s migration agent wrote to the delegate requesting an extension of time to respond to the NOITCC. On 11 February 2019, the delegate responded by email and informed him that there was no provision under the Act to allow for an extension of time to respond to the NOITCC but any information received prior to a decision being made would be considered and assessed. She also requested that he file a completed Form 956.

4. On 12 February 2019, the delegate again wrote to the applicant’s migration agent and informed him that whilst the Act made no provision for an extension of time to respond to the NOITCC, she would not be making a decision in his client’s case until the week commencing 18 February 2019.

5. On 28 February 2019, the applicant’s migration agent wrote to the delegate and provided a response to the NOITCC in the form of a Statutory Declaration dated 28 February 2019 from the applicant together with supporting documents from him, his guardian and his sponsor (brother). He stated that the applicant had requested additional documents from his family members and he would provide a “full submission” upon receipt of those documents. No submission was provided to the Department.

6. On 29 March 2019, the delegate cancelled the applicant’s Student visa on the basis that he had not complied with s.101(b) and s.103 of the Act. On 1 April 2019, the applicant applied to the Tribunal for a review of that decision.

7. On 23 December 2020, the Tribunal wrote to the applicant and informed him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to appear before the Tribunal by video link on 19 January 2021 at 9.00am to give evidence and present arguments relating to the issues arising in his case.

8. On 4 January 2021, the Tribunal received an email letter from the applicant’s migration agent advising the following “we attempted to contact the applicant via Whatsapp. We experienced difficulty in establishing the connection and the line got disconnected several times due to poor internet connection. Based on our experience, we are of the opinion that due to unstable internet connection, video hearing might not be suitable. On December 24 2020, the applicant also confirmed that he is technically not ready for the hearing. Please find the attached response from the applicant. Based on the above reasons, I would request the Tribunal for the adjournment of the proposed hearing on 19/01/2021.” The Tribunal was provided with an email dated 24 December 2020 from the applicant to his migration agent in which he stated, “technically I am not able to attain the video conference at this time.” (sic)

9. On 6 January 2021, an officer of the Tribunal contacted the applicant’s migration agent by telephone and was informed that the applicant is currently in India and he was unsure of his expected return date to Australia because of the travel restrictions. His migration agent stated that he would try to establish a clear connection with the applicant and advise the Tribunal when he was able to do so.

10. On 7 January 2021, an officer of the Tribunal contacted the applicant’s migration agent by telephone and informed him that the Tribunal was prepared to change the mode of the hearing to a telephone hearing to accommodate the applicant if his difficulty with the internet connection persisted and he was unable to attend a video hearing. He indicated that he would obtain the applicant’s instructions and respond to the Tribunal by 11 January 2021. The Tribunal did not receive a response by 11 January 2021.

11. On 13 January 2021, the Tribunal received an email letter from the applicant’s migration agent indicating that he had spoken to the applicant by telephone on 13 January 2021. He informed the Tribunal that the applicant lived in a village in India, did not have access to a good network for telephone and the internet and, due to the unstable network, believed that it will be difficult to conduct a hearing over the telephone. He indicated that the applicant  instructed him to request a postponement of the hearing.

12. The applicant’s migration agent enclosed an email dated 13 January 2021 from the applicant instructing him to request a postponement of the hearing. In his email, the applicant stated that he is living in a village, he does not have a stable network or landline telephone, due to Covid 19 in his town he is not allowed to travel to the city and he has applied for a landline but it will take some time to be installed.

13. On 18 January 2021, the Tribunal received an email letter from the applicant’s migration agent providing the Tribunal with details of the applicant’s address and telephone number in India. On 18 January 2021, an officer of the Tribunal contacted the applicant’s migration agent by telephone and informed him that the hearing listed on 19 January 2021 had been cancelled and he could expect to receive a letter from the Tribunal.

14. On 20 January 2021, the Tribunal wrote to the applicant and informed him that the records of the Department of Immigration indicate that he departed Australia on 7 December 2019. At that time, he was the holder of a Bridging E visa which ceased upon his departure from Australia. As he is no longer the holder of a Bridging visa or a substantive visa, he is unable to return to Australia for the purpose of attending a face to face hearing. The Tribunal noted that he was invited to attend a hearing by video and was also offered the opportunity to attend a hearing by telephone. The Tribunal noted that he has indicated that he is unable to attend a video hearing or a telephone hearing.

15. The Tribunal informed the applicant that, in these circumstances, the Tribunal did not propose to offer him another hearing as it would be pointless to do so. The Tribunal informed him that his application for the postponement of the hearing was refused. The Tribunal informed the applicant that it proposed to make a decision on the review based on the documentary evidence before it. The Tribunal informed him that if he wished to provide the Tribunal with any further documentary evidence, he was required to do so within 14 days of the date of the letter. The Tribunal informed him that it would thereafter make a decision on the review based on the evidence before it at that time. This letter was sent to his migration agent by email on 20 January 2021.

16. On 2 February 2021, the Tribunal received an email letter from the applicant’s migration agent in which he conceded that the applicant did not have a current visa that would enable him to return to Australia for a face to face hearing. He stated that he is discussing with the applicant an alternate solution where he can be heard. He requested that he be given another opportunity to attend a hearing. He stated that he was enclosing an email from the applicant in which he requested further time to obtain evidence against his education agent to “prove his innocence”.

17. An officer of the Tribunal spoke to the applicant’s migration agent on 5 February 2021 and informed him that the Tribunal was considering his request for further time to provide documentary evidence to the Tribunal and sought to clarify what evidence the applicant was seeking to provide the Tribunal, why he had not been able to do so since he filed his application for review and since he returned to India in December 2019. He informed the Tribunal officer that he would obtain instructions and get back to her. He did not get back to her.

18. On 12 February 2021, the Tribunal officer contacted the applicant’s migration agent. He told her that he had informed the applicant of the Tribunal’s request for further information and had not heard back from him. The Tribunal has not received any further correspondence or evidence from the applicant or his migration agent since then.

19. On 15 February 2021, the Tribunal wrote to the applicant and informed him that it had considered the request by his migration agent to offer him another hearing and had declined that request in view of his advice that he was unable to attend a telephone hearing or a video hearing from India and has no visa to return to Australia for an in person hearing. The Tribunal also informed him that it had declined his request for further time to provide documentary evidence as he had not provided the information sought by the Tribunal as to what evidence he wished to file and why he was unable to do so in the 1 year and 10 months since he filed his application for review and the 1 year and 2 months since he returned to India.

20. The Tribunal informed the applicant that it proposed to make a decision on the review based on the written evidence and submissions before it. This letter was sent to the applicant’s migration agent by email on 15 February 2021. The Tribunal did not receive a response from the applicant or his migration agent. The Tribunal has not received any further evidence from the applicant or his migration agent.  

21. In view of the fact that the applicant does not have a valid visa to return to Australia to attend an in person hearing, his advice that he is unable to attend a video hearing or a telephone hearing in his village, is unable to travel to the city to do so and has applied for a land line but it will take some time for a land line to be installed, the Tribunal is of the view that it is futile to offer the applicant another hearing. In these circumstances, the Tribunal gave the applicant the opportunity to provide written evidence to the Tribunal and written submissions from his migration agent.

22. The applicant’s migration agent appears to be able to have contact with the applicant and obtain instructions from him. Despite this, the Tribunal has not received any written evidence from the applicant, any supporting documents or written submissions from his migration agent. The Tribunal will therefore proceed to make a decision on the review based on the evidence before it.

23. The issue in the present case is whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

24. 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 AND FINDINGS

25. 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.

26. 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.

27. 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?

28. 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.

29. The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 29 March 2019. It indicates that on 10 March 2017 he applied for a Student (Higher Education Sector) (subclass 500) visa via the online facility at the Department of Immigration (the Department).

30. The applicant included with his application a document titled ‘Loan Letter’ as evidence of his financial capacity to support himself in Australia whilst here as a Student. The document was printed on a letter head that appeared to be from the State Bank of India, Mansoorabad Branch 18167, was stamped with the State Bank of India stamp and was signed by the Branch Manager. The letter stated that the State Bank of India had sanctioned an education loan for the visa holder to pursue a Master of Information and Communications Technology (Software Engineering) at the University of the Sunshine Coast, Sydney Campus, Australia.

31. 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, including those relating to his meeting the financial capacity requirement, he was granted the Student (Higher Education Sector) (subclass 500) visa on 21 April 2017. On 14 September 2017, the Australian High Commission in New Delhi contacted the State Bank of India to verify the document he provided to support his application for a Student visa.

32. The Department’s Decision Record indicates that on 21 September 2017 the State Bank of India advised that the loan document had not been issued by the official mentioned in the document nor had the document been issued by the State Bank of India. The State Bank of India also advised that the letterhead, branch seal and signature on the document were forged. The delegate considered that the applicant had provided incorrect information in his application for a Student visa when he provided the following answers (in italics):

    ·On page seven under the section ‘Funding for stay’:

    Do all applicants in this application confirm that they each have access to sufficient funds to support themselves for the total period of stay in Australia and understand that further evidence of funds may also be requested?

    Yes

    Show how each applicant included in the application will support themselves in Australia to meet living, tuition and school costs. Select any that apply:

    Financial support from an individual

    ·On page seven under the section ‘Financial support from an individual’ he provided the following answer:

    Will the funds be provided by an individual other than the applicant?

    Yes

    Relationship to the applicant:

    Other

    Other relationship:

    Siblings

    Funding type:

    Loan from financial institution

    Approximate value in Australian dollars (AUD):

    39216

    Financial institution:

    State Bank of India

    ·On page twelve under the section ‘Student Declarations’:

    Have access to sufficient funds to support themselves for the total period of stay in Australia. They also understand that they may be requested to provide further evidence of funds:

    Yes

    ·On pages thirteen under the section ‘Declarations’:

    The applicants declare that they:

    Have provided complete and correct information in every detail on this form and on any attachments to it:

    Yes

33. The Department’s Decision Record indicates that the delegate considered these answers to be incorrect because the State Bank of India had verified that the loan document that the applicant had provided to the Department in support of his application for a Student visa was bogus and it appeared that he did not receive the said loan from the State Bank of India.

34. The Department’s Decision Record indicates that the delegate concluded that the applicant’s answers being ‘Yes’ to the question ‘Do all applicants in this application confirm that they each have access to sufficient funds to support themselves for the total period of stay in Australia and understand that further evidence of funds may also be requested?’, ‘Yes’ to the Declaration that he would ‘Have access to sufficient funds to support themselves for the total period of stay in Australia’, ‘Loan from financial institution’ to the question ‘Funding type’, ‘39216’ to the question ‘Approximate value in Australian dollars (AUD)’ and ‘State Bank of India’ to the question ‘Financial institution’ were incorrect and he may not have had access to sufficient funds that were genuinely available to him to meet the financial capacity requirement for the grant of his Student visa. 

35. The Department’s Decision Record indicates that the delegate considered that the applicant did not provide complete and correct information in every detail on his (visa application) form or in the attachment (being the loan document he provided as part of his Student visa application). The delegate concluded that his answer ‘Yes’ to his Declaration that he ‘Have (has) provided complete and correct information in every detail on this form and on any attachments to it’ to be incorrect.

36. 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 provided incorrect information in his application for a Student visa and therefore his Student visa was liable to be considered for cancellation under s.109 of the Act.

37. The Department’s Decision Record indicates that the State Bank of India verified that the loan document, which the applicant provided to the Department as part of his Student visa application, was not issued by the official mentioned in the document nor had the document been issued by the State Bank of India. The State Bank of India also verified that the letterhead, branch seal and signature on the document were forged. Based on this information, the delegate found that the applicant had not complied with s.103 of the Act because he provided a document to the Department that was 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.

38. In his response to the NOITCC, the applicant provided the Department with a Statutory Declaration dated 28 February 2019 and a number of other supporting documents in relation to his financial circumstances, studies in Australia and an Affidavit from his cousin, Mohammed Habeeb. In his Statutory Declaration, the applicant stated that in January 2017 he consulted an Education Agent in Hyderabad in India in relation to him undertaking studies in Australia. He provided his Education Agent with a number of documents to support his application for a Student visa including Tax Returns and affidavits from his sponsors (elder brother and two sisters), bank statements from his guardian (cousin) and his property documents to support his application for an education loan to study in Australia.

1. In his Statutory Declaration, the applicant stated that his Education Agent charged him fees to process the bank loan. He was not aware that his Education Agent had fabricated documents in relation to the education loan and it was not disclosed to him that the document was not genuine. On 10 March 2017, his Education Agent informed him that his application for a Student visa had been lodged but he was not provided with a copy of his visa application or any supporting documents submitted with the visa application. He was granted the Student visa on 21 April 2017 and travelled to Australia on 12 May 2017.

2. In his Statutory Declaration, the applicant stated that he had no involvement in any wrongdoing or preparing bogus documents and this was done by his Education Agent. He trusted his Education Agent. He had no knowledge of the process to apply for a Student visa and followed the instructions from his Education Agent. He acknowledged his mistake in not asking for the papers. Had he known about this at the time of the visa application, he would have stopped his Education Agent from “doing this kind of inappropriate things”. If he had known about this, he would have withdrawn from his course, returned to India and invested the money in setting up his own business.

3. The applicant provided the Department with an Affidavit from his cousin, Mohammed Habeeb, who stated that he had supported the applicant’s studies in India and in Australia. He stated that he provided the applicant with his bank statement in February 2017 so he could provide it to his Education Agent who prepared his visa application. He stated that he supported the applicant financially to pay his tuition fees in Australia and was informed by him that he had seven unit left to complete his Master’s degree in Australia. He stated that he was informed in February 2019 that the applicant had received a letter from the Department in relation to the “bank papers” and was very disappointed with the unethical work of the Education Agent.  

4. The applicant did not provide the Tribunal with any evidence nor did the Tribunal receive any submissions from his migration agent despite being given the opportunity to do so. In his Statutory Declaration provided to the Department, the applicant did not dispute the evidence from the State Bank of India nor did he dispute that there had been non-compliance with s.101(b) and s.103 of the Act. He just denied that he had knowledge of it prior to receiving the NOITCC and placed responsibility for the non-compliance on his Education Agent.

5. Under s.99 of the Act any information that the applicant gave or provided, or caused to be given or provided on his behalf, to an authorised system (the online application) is taken for the purposes of s.101(b) to be an answer to a question in the applicant’s application form. Further, s.100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

6. Therefore, as the Education Agent was acting on behalf of the applicant and the applicant instructed him to prepare and lodge the application for a Student visa on his behalf, he caused him to provide the answers in the visa application that was provided through the Department’s authorised system. The information is therefore incorrect even if the applicant did not know that it was incorrect. Further, s.101 of the Act puts the onus on the applicant to fill in or complete his application form in such a way that all questions on it are answered and no incorrect answers are given or provided.

7. Having considered all the evidence, the Tribunal finds that the applicant did not obtain an education loan from the State Bank of India as referred to in his application for a Student visa. The Tribunal finds that he did not fill in or complete his application form in such a way that no incorrect answers were given or provided. Therefore, the Tribunal finds that the applicant did not comply with s.101(b) of the Act.

8. The Tribunal further finds that the ‘Loan Letter’ that was attached to the applicant’s application for a Student visa was a bogus document because it purports to have been, but was not, issued in respect of the applicant and is counterfeit. The Tribunal finds that the applicant has given, produced or provided a bogus document or caused such document to be given, produced or provided. Therefore, the Tribunal finds that the applicant did not comply with s.103 of the Act.

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

   Should the visa be cancelled?

10. 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).

11. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. 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 visa holder to the community.

    The correct information

12. The correct information is that the State Bank of India did not provide the applicant with an education loan to undertake his studies in Australia. 

    The content of the genuine document

13. The content of a genuine document would not show that the State Bank of India had approved an education loan to the applicant to undertake his studies in Australia.

    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

14. It is a requirement for the grant of a Student (Higher Education Sector) (subclass 500) visa that a visa applicant satisfy cl.500.313 which states, in part, that the visa applicant will have genuine access to funds of a kind mentioned in subclause (2) and subclause (3), if applicable, to meet the costs and expenses of the visa applicant during his intended stay in Australia. As evidence that he satisfied this requirement, the applicant stated in his visa application that he had obtained a loan from the State Bank of India and attached a ‘Loan Letter’ purportedly from the State Bank of India confirming this. Therefore, the Tribunal finds that the decision to grant the applicant a Student visa was based partly on incorrect information and a bogus document. 

    The circumstances in which the non-compliance occurred

15. The circumstances in which the non-compliance occurred are that the applicant provided the Department with incorrect information and a bogus document in relation to his financial capacity and his ability to satisfy the requirements of cl.500.313 in his application for a Student visa.

16. In his Statutory Declaration dated 28 February 2019, the applicant stated that in January 2017 he consulted an Education Agent in Hyderabad in India and instructed him to prepare his application for a Student visa. He stated that he provided his Education Agent with a number of documents to support his application for a Student visa including Tax Returns and affidavits from his sponsors (elder brother and two sisters), bank statements from his guardian (cousin) and his property documents to support his application for an education loan to study in Australia.

17. In his Statutory Declaration, the applicant stated that his Education Agent charged him fees to process the (application for a) bank loan. He was not aware that his Education Agent had fabricated documents in relation to the education loan and it was not disclosed to him that the ‘Loan Letter’ was not genuine. On 10 March 2017, his Education Agent informed him that his application for a Student visa had been lodged but he was not provided with a copy of his visa application or any supporting documents submitted with the visa application.

18. In his Statutory Declaration, the applicant stated that he had no involvement in any wrongdoing or preparing bogus documents and this was done by his Education Agent. He trusted his Education Agent. He had no knowledge of the process to apply for a Student visa and followed the instructions from his Education Agent. He stated that his property and his brothers’ and sisters’ income sources would have secured the education loan. He acknowledged his mistake in not asking for the papers. Had he known about this at the time of the visa application, he would have stopped his Education Agent from “doing this kind of inappropriate things”. If he had known about this, he would have withdrawn from his course, returned to India and invested the money in setting up his own business.

19. Whilst the applicant may not have been provided with a copy of his application for a Student visa and the supporting documents attached to it and he may not have been aware that his Education Agent provided the Department with incorrect information and a bogus document on his behalf, under the provisions of s.99 of the Act any information that the applicant gave or provided, or caused to be given or provided on his behalf, to an authorised system (the online application) is taken for the purposes of s.101(b) to be an answer to a question in the applicant’s application form. Further, s.100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

20. Therefore, as the Education Agent was acting on behalf of the applicant and carrying out his instructions to prepare and lodge an application for a Student visa on his behalf, he caused him to provide the incorrect answers in the visa application. The information is therefore incorrect even if the applicant did not know that it was incorrect. Further, s.101 of the Act puts the onus on the applicant to fill in or complete his application form in such a way that all questions on it are answered and no incorrect answers are given or provided.

21. Therefore, the applicant is taken to have provided the incorrect answers and the bogus document to the Department leading to the non-compliance.

    The present circumstances of the visa holder

22. The evidence before the Tribunal is that the applicant voluntarily returned to India on 7 December 2019. He was the holder of a Bridging E visa prior to his departure and this visa ceased on his departure from Australia. He is currently not the holder of a Bridging visa or a substantive visa and is unable to lawfully return to Australia.

23. In his Statutory Declaration dated 28 February 2019, the applicant stated that he had been studying his Master of Information Technology at the University of Sunshine Coast and completed three semesters with one semester left to complete his degree. He stated that he was shocked to receive the NOITCC and felt devastated as it not only affected his Student visa but also his future and his life. His family has invested $43,000.00 in his tuition fees. He spent $1,700.00 on his visa application fee, Education Agent’s fee and other fees. He spent approximately $35,000.00 on his living expenses in Australia. He has spent a total of $80,700.00 on his Australian education and has lost 2 years for which he cannot be compensated.

24. In his Statutory Declaration dated 28 February 2019, the applicant stated that his purpose in coming to Australia was to get an international degree from a reputable university and use it to secure a good job in India. The cancellation of his Student visa has not only affected his study and career but will also bring him shame when people in the community find out that he submitted a fraudulent document to the Department and has been deported from Australia. (The evidence before the Tribunal indicates that he departed Australia voluntarily and was not deported). It has had a long term impact on him and his family both financially and emotionally. 

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

25. The applicant provided a response to the NOITCC. Nothing adverse is known to the Tribunal about his subsequent behaviour concerning his obligations under the Act.

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

26. The Tribunal is not aware of any other instances of non-compliance by the applicant.

    The time that has elapsed since the non-compliance

27. It is almost 4 years since the applicant provided incorrect information and a bogus document to the Department in his application for a Student visa lodged on 10 March 2017.

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

28. The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance.

    Any contribution made by the visa holder to the community

29. The Tribunal is not aware of any contribution made by the applicant to the community.

30. 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 are persons in Australia whose visas would, or may, be cancelled consequentially

31. There are no persons in Australia whose visas would, or may, be cancelled as a consequence of the decision to cancel the applicant’s Student visa.

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

32. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would or may result in a breach of any of Australia’s obligations under relevant international agreements.

    Whether there are mandatory legal consequences to a cancellation decision

33. The evidence before the Tribunal is that the applicant departed Australia voluntarily on 7 December 2019. If his Student visa is cancelled, he would be subject to Public Interest Criterion 4013 which may prevent him from being granted particular temporary visas for a period of 3 years from the date of cancellation. 

    Any other relevant matters

34. The Tribunal is not aware of any other relevant matters.

    CONCLUSION

35. Having considered all the evidence, the Tribunal accepts that the applicant has spent a considerable amount of money and time on his Australian studies and that it is disappointing for him and his family that he did not complete his Master of Information Technology and Communication degree in Australia. The Tribunal accepts that this would have an impact on his career and his future plans. The Tribunal also accepts that the cancellation of his Student visa would have an emotional impact on him and his family and consequences for him in terms of applying for other visas.

36. The Tribunal acknowledges that a considerable period of time has lapsed since the applicant’s non-compliance with s.101(b) and s.103 of the Act. The Tribunal also notes that there is no evidence before it to indicate that he has not complied with other sections of the Act or Regulations or has breached any other laws in Australia.

37. However, the Tribunal is of the view that providing incorrect answers in an application for a Student visa and providing the Department with a bogus document to support that application are serious matters. It is highly unlikely that he would have been granted the Student visa if not for the fact that incorrect answers and a bogus document were provided to the Department and relied on. The seriousness of these matters is reflected in the legislation which provides for the cancellation of a visa in circumstances where there has been non-compliance with s.101(b) and s.103 of the Act.

38. The applicant’s conduct, based on his own evidence, discloses at best a careless disregard for his obligations under the legislation to ensure that no incorrect answers or bogus documents are provided to the Department. He has accepted that he made a mistake by not asking his Education Agent for a copy of the application for a Student visa and the supporting documents provided with it. However, he has not accepted any responsibility for his role in not fulfilling his obligations under the legislation or expressed any remorse for his non-compliance with s.101(b) and s.103 of the Act.

39. In view of the above, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the Student visa should be cancelled.

    DECISION

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

    L. Symons
    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.