Muzakkir (Migration)

[2019] AATA 5673

Muzakkir (Migration) [2019] AATA 5673 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Muzakkir

CASE NUMBER:  1832852

DIBP REFERENCE(S):  BCC2017/3638002

MEMBER:Helen Kroger

DATE:27 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 27 November 2019 at 5:41pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – bogus documents – bank documents – submitted in good faith – genuine document – decision under review set aside  

LEGISLATION

Migration Act 1958 (Cth), ss 101, 103, 109

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 Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with s.101 and s.103 of the Migration Act.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 17 October 2018, the Department sent the applicant a Notification of Intention to Consider Cancellation (NOICC) of the Subclass 500 visa, setting out the matters indicating non-compliance and inviting him to comment or respond. The applicant responded on 31 October 2018 and provided documentation to support his response. The delegate considered the applicant’s response in addition to all available information and on 6 November 2018 decided to cancel the applicant’s Subclass 500 visa on the basis that he had provided a bogus document and incorrect information on his application form.

4. The applicant appeared before the Tribunal on 12 November 2019 to give evidence and present arguments.

5. The applicant provided a copy of the delegate’s decision to the tribunal for the purpose of its consideration.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b):

    Section 101:

    Visa applications to be correct

    A non-citizen must fill in his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)No incorrect answers are given.

    and

    Section 103

    Bogus 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.

    Subsection 5(1) defines a bogus document as:

    Bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    Purports to have been, but was not, issued in respect of a person; or

    Is counterfeit or has been altered by a person who does not have authority to do so; or

    Was obtained because of a false or misleading statement, whether or not made knowingly.

12. The visa applicant, Mr Muzakkir lodged a visa application on 12 July 2017, indicating that he was funding his living, tuition and associated school costs with a loan from the State Bank of India for the amount of AUD$40,000.  This loan was under his father’s name, using family property as surety. He claims that before the Bank would complete and release the loan, that he was required to provide verification that his visa had been granted, which in itself necessitated a confirmation of enrolment (COE).

13. He indicated that it was necessary to secure a loan at that time as it was not possible for his father, a businessman and property owner, to immediately provide the necessary funds. The applicant claims that the Bank required him to secure his visa before they would finalise the loan payment details. As funds were required to secure a COE for the visa application, the family approached  ‘cousins’ who lived in Australia, to cover the first semester, with the intent on drawing on the bank loan for the remainder of the fees. Following the grant of the visa, the applicant travelled to Australia within a couple of weeks to commence his course.   Mr Muzakkir explained to the Tribunal that the State Bank of India had demanded he return to India to personally sign further documents, documents that he claims that he had already signed with his father and submitted to the Tribunal that the bank manager had become vexatious.  He remained in Australia to complete his Master’s course and the bank refused to finalise the loan arrangement, notwithstanding that they had a letter of confirmation regarding the bank loan. Evidence was submitted to the Tribunal to support this claim. Subsequently the applicant was able to fund his course fees through property rentals and the sale of property. (folio 37 -56). Mr Muzakkir claims that adverse tension developed between the bank manager and he and his father, that may have contributed to the advice provided to the Department, that indicated  that no loan had been agreed to. The applicant confirmed that the loan had not been ‘activated’ and that no money had been provided.

14. The Tribunal has carefully considered all the evidence before it and is satisfied that the document of intent provided by the State Bank of India by the applicant is not a bogus document and reflected the intent of the State Bank of India and the applicant at the time that the visa application was made. The Tribunal has considered the circumstances following the lodgement of the application, the Bank’s request to secure a visa before finalising arrangements, and the changing circumstances of the applicant’s family that enabled them to pay for the course fees, and is satisfied that the applicant did not intend to mislead the delegate in his visa application nor seek to provide bogus information to distort the visa application process and that the document in question was provided by the State Bank of India.

15. Whilst the Tribunal finds that the submission of the State Bank of India document is misleading in that it indicates that the course fees were to be funded through a bank loan, which were later funded through extended family members, it is satisfied that the document is not a bogus document, and was submitted with the  application form, in good faith and that the document  provided on the State Bank of India letterhead, is a genuine document.

16. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Helen Kroger
    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.