Nomula (Migration)

Nomula (Migration) [2023] AATA 65 (4 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vishal Reddy Nomula
REPRESENTATIVE:  Mr Gaurav Gaur (MARN: 1680615)
CASE NUMBER:  2006015
HOME AFFAIRS REFERENCE(S):          BCC2019/2653532
MEMBER:Gabrielle Cullen
DATE:4 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 January 2023 at 12:03pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – bogus document – false previous employment details – accusation against education adviser – unsatisfactory course progress – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 359; Direction No. 69
Migration Regulations 1994, Schedule 2, cl 500.221; Schedule 4, Public Interest Criterion 4013; rr 2.12, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India. On 6 February 2019 he made an application for a Student (Higher Education Sector) (subclass 500) visa. On 14 February 2019 he was granted the visa valid to 19 April 2021. He arrived in Australia on 28 February 2019.
On 19 February 2020, the delegate sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC) of his student visa under s.109 of the Act and informed him that a response must be provided in writing within 14 calendar days after he was taken to have received the letter.
On 4 March 2020 the applicant wrote to the delegate requesting an extension of 7 days’ time to respond to the NOICC. On 5 March 2020, 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 NOICC but any information received prior to a decision being made would be considered and assessed.
On 5 March 2020, the applicant provided a response to the NOICC in the form of an email.
On 17 March 2020, the delegate cancelled the applicant’s Student visa under s.109 on the basis that he had not complied with s.101(b) and s.103 of the Act.
On 25 March 2020, the applicant applied to the Tribunal for a review of that decision and attached the decision of the Department.
On 12 July 2022 the Tribunal wrote to the applicant informing him of the existence of a s.376 non-disclosure certificate issued by the Department on 14 June 2022, and what the certificate says. It advised that:
The Tribunal’s preliminary view is that the section 376 certificate is valid. The Tribunal has discretion under section 376(3)(b) of the Act to disclose the document or information subject to this section 376 certificate. However, the Tribunal has decided not to exercise this discretion at this time and concurs that there is a valid public policy reason in this case for non-disclosure
It invited him to comment on the validity of the s.376 certificate and to afford him the opportunity to seek a favourable exercise of the Tribunal’s discretion under section 376(3)(b) of the Act and provide submissions as to why the information protected under the section 376 certificate should be disclosed to him.
On 26 June 2022 the applicant provided a response requesting the Tribunal exercise its discretion under s.376(3)(b) and requested all the information relating to the investigation done by the Department from which they have concluded the documents are fraudulent. He noted he has applied to the Tribunal where he will be providing detailed information about all the documents submitted to the Department and outline his reasons at hearing. He requested the information related to the investigation undertaken by the Department.

11. On 15 November 2022 the Tribunal invited him to appear before the Tribunal by video link on 14 December 2022 at 10.00am to give evidence and present arguments relating to the issues arising in his case.

The applicant appeared before the Tribunal via video on 14 December 2022 to give evidence and present arguments. He was assisted with an interpreter in the Punjabi and English languages. He indicated that he would proceed in English and only use the interpreter when needed. The Tribunal stressed to him that he should use the interpreter at any time he needed to as it was important he understood and was able to communicate effectively; which he did a number of times throughout the hearing. His representative did not attend the hearing.
He was given until 15 December 2022 to provide the report of the psychologist referred to at hearing as reason for his unsatisfactory course progress while studying the Master of Information Technology. He provided that report on 15 December 2022.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
s.376 Certificate of Non-Disclosure
The Tribunal wrote to the applicant advising that there is a s.376 Certificate on the Department’s file which it considered is valid. At the hearing the Tribunal advised that it considered the certificate to be valid. It referred to its previous letter sent to the applicant in regard to the certificate which outlined the reason given by the Department for the certificate. It has considered his response to the letter. It outlined at hearing, via the process outlined in s.359AA, the information it covered in general with regard to integrity checks being undertaken by the Department that indicate that information provided in relation to his previous employment at Sanyam Infotech, and the supporting reference letter, is fraudulent. It noted that the information indicates that the phone number and address details listed for Sanyam Infotech in the visa holder’s Student visa application match the phone number and address details of several other IT companies submitted by other persons in their visa applications to support previous employment from the same area in India. The Tribunal noted that verification checks conducted by the Department conclude that none of these IT companies, including Sanyam Infotech, are located at the KTC Illumination office space as listed in the visa holder’s Student visa application as the address for this company.
The applicant responded orally at hearing confirming he did not ever work at Sanyam Infotech and this information in his application, statement of purpose and in the letter was submitted by his agent without his knowledge and was false.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
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?
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.
The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 17 March 2020. It indicates that on 6 February 2019 he applied online to the Department for a Student (Higher Education Sector) (subclass 500) visa to undertake a Master of Information Technology at Charles Sturt University. It notes he was assessed by the delegate as meeting all the relevant criteria and a student visa was granted on 14 February 2019 valid to 19 April 2021.
The Department decision notes that in the NOICC dated 19 February 2020, the delegate set out the particulars of the non‑compliance as below.
The applicant in his application form included at page nine the following:
Employment
Employer / business details
Give details of the employer / business
Organisation name: SANYAM INFOTECH
Industry type: Professional, Scientific and Technical Services
Organisation address
Country: INDIA
Address: Plot No 32-34, Ground Floor,
KTC Illumination, Opp Hotel West In,
Suburb / Town: Mind Space, Hyderabad
State of Province: TELANGANA
Postal code: 500081
Position details
Position: Senior Software Engineer
Date from: 05 Aug 2015
Date to: 30 Nov 2018
And at page 14
Declarations
Warning:
Giving false or misleading information is a serious offence.
The applicants declare that they:
Have provided complete and correct information in every detail on this form, and on any
attachments to it.
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
YES
In his supporting statement he also included a Statement of Purpose which notes that:
After completion of my bachelors I worked as Senior Software Engineer for SANYAM INFOTECH, Hyderabad from 05^th August 2015 to 30^th November 2018.
In support of the above claimed employment, the applicant provided the following document:
· Employment reference letter purportedly completed by the Human Resource Manager of Sanyam Infotech, stating he was employed as a Senior Software Engineer from 5 August 2015 to 30 November 2018.
It notes that it appears the information was fabricated to meet the genuine temporary entrant criteria for the grant of a student visa.
In his response to the NOICC, where the above information was outlined, the applicant provided the Department with a statement in an email dated 5 March 2020. He submitted the following:
I am writing this email to plead my innocence in relation my work experience as “Senior Software Engineer for Sanyam Infotech, Hyderabad from 5th August 2015 to 30th November 2018”.
This is the first time I am hearing about this company or my experience related to this company. Reading your email, it was very clear to me that I have been defrauded by the education agent through whom my student visa was processed. Name of that education agent is i20 Services and the name of the owner of that company is Pramod Reddy. I never claimed to have worked at Sanyam Infotech to this agent. I gave my education documents to the education agent only. He processed my visa as well and it is very clear he put in my experience on his own. I gave him my Statement of Purpose as well. I did not claim in the Statement of Purpose anything regarding the Sanyam Infotech experience. I am as much the victim here and because of this my full life and career can be ruined.
I have discussed this with my parents as well and they are equally shocked. We are in the process of registering a police complaint against i20 Services and its owner Pramod Reddy. We will drag this person to the courts and demand justice! This is the reason I requested more time to respond to the Notice of Intention to Cancel my visa. I wanted to submit the official complaint made as evidence. I don’t know how many more innocent student’s careers this company has ruined. He is the real culprit here. I am sure if you have more students who have come through his company, they will also tell similar stories.
I would again like to say that I am a genuine student and have been a victim of the scam run by this person Pramod Reddy in Hyderabad. My parent’s life and my life will be completely ruined if my visa is cancelled due to this scam. We are already a victim of this elaborate scam and now my student visa is being cancelled due to something for which we had no knowledge. I am requesting you to please help us through this difficult situation.
I am promising you that we are in the process of taking legal action against i20 services and its owner Pramod Reddy and can send you the official complaint in a few days’ time.
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 14 February 2019 valid to 19 April 2021 and the applicant arrived in Australia on 28 February 2019.
The Department’s Decision Record indicates that
Integrity checks undertaken by the Department indicate that the above information provided in the visa holder’s Student visa application in relation to his previous employment at Sanyam Infotech, and the supporting reference letter, is fraudulent.
The phone number and address details listed for Sanyam Infotech in the visa holder’s Student visa application match the phone number and address details of several other IT companies submitted by other persons in their visa applications to support previous employment. Verification checks conducted by the Department conclude that none of these IT companies, including Sanyam Infotech, are located at the KTC Illumination office space as listed in the visa holder’s Student visa application.
The delegate considered that the applicant had provided incorrect answers on page nine and page fourteen of his visa application form, and on page one and two of his GTE or Statement of Purpose statement submitted in support of his application, as the evidence indicates he did not work as a Senior Software Senior Software Engineer for Sanyam Infotech from 05 August 2015 to 30 November 2018. He considered the above response by the applicant that the education agent provided the information without his knowledge. However, he considered section 98 of the Act and was of the view that the applicant caused the information to be provided by engaging an agent to act on his behalf. 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.
He also considered that the applicant has not complied with section 103 as he had submitted a bogus document being the reference letter purportedly provided by the Human Resources Manager of Sanyam Infotech confirming the applicant was employed there from 5 August 2015 to 30 November 2018 which is contrary to the above evidence provided by the Department’s Integrity Unit. 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.
Prior to the hearing the applicant provided to the Tribunal a response to the letter referring to the s.376 Non-Disclosure Certificate which is outlined above.
At hearing the applicant confirmed that the information he provided in the application, in his statement of purpose and in the letter was false as he had never worked at Sanyam Infotech. He confirmed he had provided incorrect information as per s.101(b) and a bogus document as per s.103. He said he had approached a consultant, a migration agent to prepare the application. He said he gave him correct information and gave him his education certificates, and his PTE score, the agent took the money and submitted the application. He said he did not know that he had provided false information in the application with regard to employment at Sanyam Infotech. He said he met with the agent on one occasion.
The Tribunal noted he had personally signed the Statement of Purpose which includes the incorrect information that he worked at Sanyam Infotech in the position claimed and period noted and he said he was sent it by email by the agent to sign so he just signed it. He said he did not read it. He confirmed he entrusted submission of the application to the agent and did not read the application form submitted. The Tribunal raised with him that it appeared he had the opportunity to correct the information especially as the statement of purpose was sent to him; and he answered in the affirmative. It raised with him that it did not appear he had taken steps to ensure the application and information provided was genuine.
The Tribunal also raised with him that in his submission he said that he went to an education agent not a migration agent and he said it was a consultant. It asked the name of the organisation and he said he did not know but said the man’s name was Promed. It also noted that there was no evidence of a migration agent or any agent in his application for the visa. He said his father had tried to contact this man but he could not and his father also went to the police but the company has closed.
The Tribunal has considered the applicant’s contention that he had engaged an agency in India to act on his behalf in relation to the student visa application, to whom he paid a fee for the service, and that he was under the impression that the information and documents submitted on his behalf were those that he had provided to the agency. In essence, the applicant claims to have had no knowledge of the incorrect information provided in the visa application form or the non-genuine document that had been submitted with the application.
The Tribunal observed that the visa application form does not indicate that any agent was acting on behalf of the applicant in relation to their visa application. However, this does not necessarily undermine the applicant’s claims to have engaged an agency to act on his behalf. The visa application form was electronically generated and lodged online and could have been completed and lodged by a person other than the applicant. Furthermore, the applicant provided evidence regarding his dealings with the agency in India, including details of the agency’s name. On that evidence, the Tribunal accepts that the applicant had engaged an agent to act on his behalf in relation to the Subclass 500 student visa application.
The Tribunal has concerns with his evidence that he was not aware that inaccurate information and a non-genuine document had been provided with the visa application. In his write submission to the Department of 5 March 2020 he indicated that both he and his parents were shocked by the inclusion of the incorrect information and bogus document. He said they are in the process of registering a police complaint against i20 Services and its owner Pramod Reddy and will drag this person to the courts and demand justice. He said he is sure there are more students who have come through this company who are similarly victims of this company.
The evidence indicates that the Statement of Purpose with the incorrect information in it as to his employment was sent to him via email and that he signed it. It has difficulty accepting the applicant would sign a document without reading it. It accepts he may not have known of the provision of a bogus document to support the claim of employment but is of the view he knew of the incorrect information in the Statement of Purpose.

Whether he knew or did not know of the provision of the incorrect information is not relevant because under s. 98, an applicant who does not fill in his application form is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf and 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.
Therefore, as the 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.
It is therefore not relevant, for the purpose of establishing whether there was non-compliance as described in the notice, whether or not the applicant had knowledge of the information that was provided on his behalf by the agent.
The applicant did not dispute or challenge the information discovered by the Department indicating that Sanyam Infotech does not exist with the conclusion that the applicant did not work at this company in the position and time period claimed in his application for the visa, statement of purpose attached to his application and as stated in the letter from the purported company. The Tribunal finds on the evidence before it that the answers in the visa application form and attached statement of purpose about the applicant having worked at Sanyam Infotech is incorrect. It follows that there has been non-compliance by the applicant with s.101(b) of the Act in the way described in the notice.
The Tribunal also finds on the evidence before it that the letter of employment from Sanyam Infotech is a document that the Tribunal reasonably suspects is counterfeit or has been altered by a person who does not have authority to do so. It follows that the letter provided with the visa application is a bogus document as defined in s.5(1)(b) of the Act.
The Tribunal has accepted the applicant’s evidence that he had engaged an agency in India to act on his behalf in respect of the visa application. The applicant’s evidence is that he was not personally involved in the preparation of bogus documents and was unaware of that. However, the applicant was sent the statement of purpose containing the incorrect information and signed the document. The Tribunal does not accept the applicant would not have read the statement before signing it. It does not a accept he was unaware that incorrect information was being provided with his application. Therefore, with respect to the bogus document the Tribunal is of the view knowing that incorrect information was being submitted, he was recklessly indifferent to the agent submitting a bogus document and acting unlawfully. It therefore finds that the applicant has caused a bogus document to be given. It follows that there has been non-compliance by the applicant with s.103 of the Act in the way described in the notice.
For the above reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (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. The Tribunal has considered each of the circumstances as follows.
The Tribunal raised these with the applicant at hearing and the evidence provided as well as written evidence provided is considered below.
The correct information
The correct information is that the applicant did not work at Sanyam Infotech in the position or period claimed. He said at hearing he did not work in India prior to his departure. The applicant’s employment in an area relevant to his proposed study being the Master of Information Technology would have been relevant evidence considered when accepting the applicant met the genuine temporary entrant criterion under cl.500.212, and ultimately the grant of the student visa. Direction 69 being the Ministerial Direction to Assess the Genuine Temporary Entrant Criteria refers to, under 12(b), the relevance of the course to the student’s past or proposed employment either in their home country or a third country in assessing this criterion.
As outlined above, the Tribunal has considered the totality of the evidence and although the Tribunal has some doubts, on the balance of the available evidence, the Tribunal found that the application for the student visa was completed and submitted by an agent in India, even though there is no evidence of one in the application form. The Tribunal does not draw any adverse conclusion as to whether this agent was an education agent or migration agent.
However, the Tribunal does not accept that the applicant was not aware that inaccurate information had been provided with the visa application. The evidence indicates that the Statement of Purpose with the incorrect information in it as to his employment was sent to him via email and that he signed it. The Tribunal does not accept that the applicant would sign a document without reading it.
The integrity of the migration program relies on, amongst other things, applicants providing correct information in visa application forms and in their dealings with the relevant agencies including the Department. Sections 98 to 100 reflect the seriousness of the provision of the incorrect information even in situations where there was no intention to provide incorrect information.
The Tribunal gives this consideration significant weight in favour of cancellation.
The content of the genuine document (if any)
The employment reference letter purportedly issued by Sanyam Infotech and provided with the visa application is a bogus document. Th applicant confirmed at hearing he never worked at Sanyam Infotech and this confirms the information provided by the Department’s Integrity Unit. A genuine document would not show that the applicant worked at Sanyam Infotech as his evidence is he never worked there and was not employed in India prior to his departure.
There is therefore no genuine document to consider.
The Tribunal gives this consideration no weight in favour of cancellation.
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
One of the primary criteria for the grant of the subclass 500 (Student) visa is that the applicant meets the genuine temporary entrant criteria. Via Direction 69 the decision maker is to consider their circumstances in their home country as well as the value of the course to the applicant’s future. In particular, at 12(b), the Direction directs the decision maker to consider the relevance of the course to the applicant’s past and future employment either in their home country or a third country. The Tribunal considers that the decision to grant the visa was therefore based, in part, on the incorrect information in the visa application form as to his employment at Sanyam Infotech, and on the supporting bogus document as to this employment when he applied to study a Master of Information Technology. This is particularly so as it indicates he was employed in a similar industry to the proposed course.
As outlined above, the Tribunal does not accept that he was not aware that incorrect information as to his employment with Sanyam Infotech had been provided with the visa application. The evidence indicates that the Statement of Purpose with the incorrect information in it as to his employment was sent to him via email and that he signed it. The Tribunal does not accept that the applicant would sign a document without reading it.
The Tribunal gives this consideration significant weight in favour of cancellation.
The circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred are outlined above. Essentially, the applicant submits in his evidence to the Tribunal that the incorrect information and bogus document were submitted without his knowledge by his agent in India.
As outlined above, the Tribunal has considered the totality of the evidence and although the Tribunal has some doubts, on the balance of the available evidence, the Tribunal found that the application for the student visa was completed and submitted by an agent in India, even though there is no evidence of one in the application form. The Tribunal does not draw any adverse conclusion as to whether this agent was an education agent or migration agent.
The applicant has submitted that both he and his parents were shocked to find the incorrect information in the application and that Pramod and i20 have made similar misrepresentations for other applicants. He also writes of his father registering a complaint with police, however at hearing he indicated while his father went to the police the company has since closed.
However, the Tribunal does not accept that he was not aware that inaccurate information had been provided with the visa application. The evidence indicates that the Statement of Purpose with the incorrect information in it as to his employment with Sanyam Infotech was sent to him via email and that he signed it. The Tribunal does not accept that the applicant would sign a document without reading it.
While the Tribunal accepts he did not know of the provision of the bogus document on his behalf as all he was sent was the Statement of Purpose, the Tribunal is of the view he did know that information as to his employment was not correct and that he should have checked the application and attachments. The Tribunal is of the view that the applicant did have a chance (and a responsibility in the Tribunal’s view) to check the content of the application especially when it is of the view he knew of the incorrect information in the Statement of Purpose. The Tribunal is concerned that the applicant had not taken sufficient steps to ensure the application contained genuine information and documents.
The Tribunal gives this consideration significant weight in favour of cancellation
The present circumstances of the visa holder
In his evidence to the Tribunal at hearing the applicant referred to his study in Australia and the effect that the cancellation of his visa would have on him. The Tribunal accepts that he applied for a new visa to study at the vocational level in 2020 as the current visa would no longer be relevant as he is not proposing to study at the master’s level. He said he applied for a further visa in early 2020 to study cookery at the vocational level and the cancellation of his visa could affect the grant of the visa and his future study. He has been unable to study since the cancellation of the visa as he has a no study condition placed on his bridging visa. As to why he wants to study cookery; he said he likes it and likes food and interacting with people. The Tribunal asked for more detail and raised with him his evidence appeared vague and lacking in detail as to why he wants to study cookery. He again referred to interacting with people, being productive, trying new things, liking cooking and that he worked in that area for about six months from June 2019 in a Thai restaurant. He later indicated he wants to become a Chef on return focussing on Italian food. When asked if he could study similar course in India, he said he did not know.
The applicant said he is not in currently in a relationship and has not interacted with the community.
The Tribunal gives this consideration neutral weight in favour of cancellation
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
There is also evidence as raised with the applicant via s.359AA that enrolment was cancelled for unsatisfactory course progress in the Master of Information Technology on 31 March 2020 which may indicate a breach of condition 8202(3). He said he only studied in semester 1 of this course and completed 1 subject and failed 2. He said he then did not attend most of semester 2. He said he could not handle the pressure, he tried but was mentally affected by a relationship break up. He has provided reasons as to why as outlined below.
However, a possible breach of a visa condition, is not an instance of non-compliance under ss 101-105. Regulation 2.41(g) requires the Tribunal to bring to mind and evaluate all other instances of non-compliance with ss 101–105 known to it. The Tribunal therefore does not consider this possible breach as relevant and finds there are no other instances of non-compliance by the applicant known to the Tribunal.
The time that has elapsed since the non-compliance
The non-compliance occurred when the application was made in February 2019. While the Tribunal acknowledges that since this period the applicant has established himself in Australia, the Tribunal notes the applicant has been on notice, since being notified by the Department in February 2020 that there was evidence of non-compliance with the visa application which may result in the cancellation of the visa.
In these circumstances the Tribunal gives this neutral weight in favour of cancellation.
Any it is breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal which suggest that there have been breaches of law by the applicant since the non-compliance.
Any contribution made by the holder to the community.
At hearing the applicant indicated he had not contributed to the community. The Tribunal gives this consideration neutral weight in favour of cancelling the visa
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be any consequential cancellations under s.140
The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore. There is no restriction on which visa he can apply for once he leaves Australia. However, those are also intended and legitimate consequences of cancellation.
The Tribunal gives this consideration neutral weight in favour of cancelling the visa.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight in favour of cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant referred to being unable to be granted a further visa to study the cookery courses. He also referred to the payment of $23,000 to study the master’s course and that for the last 3 and a half years he has not studied or progressed and will go back without anything to enhance his career.
There is also evidence as raised with the applicant via s.359AA that enrolment was cancelled for unsatisfactory course progress in the Master of Information Technology on 31 March 2020 which may indicate a breach of condition 8202(3). He said he only studied in semester 1 of this course and completed 1 subject and failed 2. He said he then did not attend most of semester 2. He said he could not handle the pressure, he tried but was mentally affected by a relationship break up. He has provided reasons as to why as outlined below.
Following the hearing he provided a report from Ms Elizabeth Chetcuti dated 13 February 2020 which outlined that on arrival in Australia his 7-year relationship in India broke down. The report notes that at that time he was still not sure as to the status of the relationship and that had not talked for the previous 7 months. He advised that he was unable to concentrate and wanted to move to the cookery area. The psychologist noted that the applicant was experiencing Adjustment Disorder, Depression and anxiety but due to a friend’s support and enrolment in the cookery course he now feels much improved, although he still wants answers from his girlfriend in India. She summarised that he will be able to recover with the support of his friends and by enrolment in the cookery course. She notes that he is now highly focussed and motivated to complete the cookery courses

While the Tribunal accepts that the breakup of the relationship would have affected him, and has considered the psychologist’s report, the Tribunal has difficulty accepting he was able to work part-time as a kitchen hand during the second semester from June 2019, as he indicated at hearing, but not attend and study in this period, even if suffering some issues as a result of the breakup.
While it accepts there is a degree of hardship to the applicant as to his lack of obtaining Australian qualifications, given the applicant was aware of the submission of incorrect information in the statement of purpose, he did not achieve satisfactory course progress in the master’s course which the payments of money was made towards and his lack of detailed evidence as to the value of the cookery courses which he now indicates he wants to study on the evidence before it the Tribunal gives this factor neutral weight in favour of cancelling the visa.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant had given incorrect information and a bogus document with his visa application and that he did not comply with s,101(b) and s. 103 of the Act. The Tribunal has found that there are grounds for cancelling her visa.
The applicant’s evidence is that he was not personally involved in the preparation of bogus documents and was unaware of that. However, the applicant was sent the statement of purpose containing the incorrect information and signed the document. The Tribunal does not accept the applicant would not have read the statement before signing it. It does not a accept he was unaware that incorrect information was being provided with his application. With respect to the bogus document and other incorrect information in the application the Tribunal has formed the view that the applicant may not have taken adequate steps in checking the content of his application, which he should have done. In the Tribunal’s view, the circumstances in which the non-compliance occurred weigh in favour of cancellation.
The Tribunal’s concern is that the decision to grant the visa was based on incorrect information and a bogus document because the applicant’s employment would have been relevant to that decision of whether the applicant met the genuine temporary entrant criteria. This also weighs heavily in favour of the cancellation.
The Tribunal therefore gives his poor academic record as outlined above some weight in about of cancellation.
The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant and as outlined above the circumstances favour cancellation. Although it is accepted that there were events that occurred outside the applicant’s control, such as the breakdown of his relationship, the Tribunal is also mindful of the seriousness of providing incorrect information and a bogus document in support of an application for the visa.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
decision
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Gabrielle Cullen
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2023] AATA 65

4 January 2023

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