Parmar (Migration)

Parmar (Migration) [2023] AATA 4868 (12 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sandeep Singh Parmar
REPRESENTATIVE:  Mr Ravi Turan (MARN: 2217760)
CASE NUMBER:  2311580
HOME AFFAIRS REFERENCE(S):          BCC2023/1796416
MEMBER:Noelle Hossen
DATE:12 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 12 December 2023 at 12:45pm
CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – ground for cancellation – incorrect information in visa application – previous visa applications – known by another name – adverse immigration history – reliance on the agent – consideration of discretion – knowingly omitted the correct information – present circumstances of the visa holder – time elapsed since the noncompliance – best interest of the child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), Schedule 2, cl.573.326
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 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his application for the Student (subclass 573) visa application lodged on 31 May 2014 and therefore he has not complied with section 101(b) of the Act and his current visa, the skilled-independent visa, is liable for cancellation under section 109 of the 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.
The applicant appeared before the Tribunal on 29 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Pooja Rajput and Parveen Kumar. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The Department’s file includes a non- disclosure certificate issued under Section 357A of the Act in respect of various documents, which included CLD 2023 /21674228, ADD 2023/1926150, CLD 2023/21675626, CLD2023/ 23595199, CLD 2023/23599215 and BCC 2023 /1796416.The Tribunal formed the preliminary view that the Certificate was valid.
Prior to the hearing the Tribunal sent a letter to the applicant regarding the non-disclosure certificate, which was issued on the 7 August 2023 signed by the delegate of the Department. The Tribunal informed the applicant of the following reasons stated in the certificate for the non- disclosure:
Disclosure would reveal lawful methods for preventing, detecting, and investigating breaches or evasions of the law, which would or would likely to prejudice the effectiveness of those methods
Where information was provided in confidence, the provider of the information has not consented to the disclosure of the information to the review applicant.
The Tribunal explained to the applicant that notwithstanding the non-disclosure certificate placed on the relevant documents in the Department’s file, the Tribunal is still required to inform him of the information in those documents that is relevant to his case.
The applicant was provided with 14 days to comment on the non-disclosure certificate as the Tribunal advised him on the 13 September 2023 by email that he had until the 29 September 2023 to comment and provide submissions to the Tribunal. The applicant stated in submissions that he understood the importance of the reasons which were mentioned in the Certificate and that he was not challenging the validity of the Certificate.
The Tribunal is satisfied that the certificate issued under Section 375A of the Act is valid as it provides a valid public interest reason for the non-disclosure of the stated documents. In any case, the Tribunal is satisfied that the relevant information contained in those documents has been disclosed to the applicant in the s107 notice and the applicant had an opportunity to respond to the information prior to the hearing. Furthermore, the information was set out in the delegate’s Decision Record which was provided to the Tribunal with the application for review by the applicant.
Prior to the hearing the applicant through his representative provided numerous documents to the Tribunal which included but is not limited to the following documents:
Email from Raju Swamy dated the 21 September 2023.
Character check
Brother’s identity Documents
Father’s identity Documents
Mother’s identity Documents
Birth Certificate
Letter from medical practitioner
Medical information
Applicant statement
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal has considered the documents provided to the Tribunal by the applicant.
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
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.
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?
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 ss.101 in the following respects:
The information in the delegate’s Decision (on the Tribunal file) discloses that on the 31 May 2014 the applicant applied for a student Visa (subclass 573).
The applicant provided a specific response to the information in the NOICC that he provided an incorrect answer when he answered “no” to the question “Have you or any other person included in this application previously applied for any type of Australian Visa? On page 18, at the section of application titled “Previous visa applications: He submits that at the time of lodgement of his visa as a dependant on his wife’s Student (Subclass 573) visa in 2014, he disclosed his previous visa history to his agent but not his wife. He further stated that it was his agent’s decision not to declare his previous visa history as the agent thought his and his wife’s visa application may be refused due to the applicant’s adverse immigration history. His wife completed the visa application forms if all the information provided in these forms was correct as she did not know about the applicant’s past immigration history in his Australian Citizenship application.
The applicant had used another identity which he previously used to apply for an Australian Visa.
The particulars that were specific in the Application was found on page 18 under the heading of “Previous visa applications” the applicant provided an answer that he had not previously applied for any type of Australian Visa.
He also stated that he had not had a previous application for entry to Australia refused or had a visa for Australia cancelled. He also stated that in the last 5 years he had not visited or lived outside your country of passport for more than 3 consecutive nights.
On Page 26 under the heading Declaration and Consent he acknowledged the following declaration and declared that the information he had supplied was complete and correct.
He signed the declaration and consent on the 12 June 2014.
His visa as a dependent ceased 11 September 2016.He was then granted a temporary Graduate Visa on the 25 August 2016 and a Skilled independent Visa on the 20 October 2018. The applicant provided the same answers in the applications. He was granted the Skilled Independent visa on the 6 February 2019 and this is the visa that he currently holds.
The applicant did not mention that he had been known by any other name or had overstayed his welcome in any other country including Australia.
The forensic facial examination dated the 24 August 2020 by the Department concluded that the applicant’ s facial image was biometrically matched with another identity, Sandeep Sandeep, date of birth 4 March 1985, who had an adverse immigration history.
In the response to the NOICC the applicant admitted that he had another identity and that he resided in Australia between 2007 and 2013. He acknowledged that he had not complied with Section 101(b) of the Act. He submits that the previous identity, Sandeep Sandeep is not his genuine identity, and that the current one is his present identity. He denied any knowledge of the incorrect information and the bogus documents, including the passport with only his first name on it and the bogus educational documents and incorrect family member’s details, provided to the Department on his behalf by an agent nor the provision of such information and documents by the same agent. He subsequently became aware of the provision of incorrect information and bogus documents by the agent when he was in Australia, however, did not know “where to start fixing these issues.”
The Delegate acknowledged the applicant’s submissions but stated as follows:” I consider these do not mitigate to disprove the grounds for cancellation. The fact remains that the visa holder provided incorrect answer to the above question, in relation to his previous Australian visa history, in his application for the Student visa lodged on 31 May 2014. In accordance with Section 98 of the Act, I consider that engaging a third party to prepare and lodge his visa application does not excuse the visa holder from the requirement to provide correct information in his visa application form.”
The Tribunal agrees with the Delegate’s comments that it is immaterial to the issue that the applicant engaged an agent to complete his application as it does not excuse him from the requirement to provide correct information in his visa application form.
The Tribunal finds that the applicant provided incorrect information as he knew that the Department was aware that he had adverse information on his immigration history and by providing the incorrect information the Department were unable to assess his applications against his adverse immigration history. This fact allowed him to remain living in Australia as a recipient of various visas from 2014 to this date.
The Hearing
At the hearing the Tribunal asked the applicant whether he had arrived in Australia on a student visa in 2007. He said yes that he did.
The applicant had applied to the Department for a visa on the 23 September 2010. The delegate refused to grant the visa on the 26 November 2010. The applicant applied for a review of the Decision made by the Delegate of the Department on the 10 December 2010 to the Migration Review Tribunal (hereinafter referred to as the MRT). He was asked whether he had read the MRT Decision dated the 19 December 2012. He said that he had not. The Tribunal explained that it would be sent out to him and he would have 14 days to comment on the document as the Tribunal intended to refer to the document in the Decision.
It was put to the applicant that the MRT found that “he had not studied after April 2009”. He confirmed in his oral evidence that this was true and that he had not studied for 3.5 years at the time of the MRT hearing.
He said that he had not read the Decision and that his agent had told him the wrong information and that as soon as he knew that he had to leave Australia he did so, The Tribunal does not draw any adverse conclusions regarding the fact that he may have made an honest mistake and overstayed his stay by a few days after the Decision was made on the 19 December 2012 as it was close to the Christmas holidays. The Tribunal does however rely on the finding that the applicant breached and did not comply with the conditions of his Student Visa for a significant period after April 2009 as he did not study.
The applicant disputed the findings of the MRT decision of the 19 December 2012. He disputed that he had ever told the member that he was mentally sick.
Paragraph 21 and 22 of the Decision of the MRT states as follows:
I asked the applicant to detail what he had studied and completed since the completion of the Certificate III on 17 April 2009, i.e., for the past 3 and a half years. He said that he had not undertaken any other studies as “I have been waiting to get my visa… I have been mentally sick and went home to India for a period but after 21/2 months I came back, and I didn’t work as well. I asked what he has been doing during this period if he hasn’t been studying. He said, “I’ve just been staying at home nothing else.” He then added that he had started work in May or June 2011 at first at a service station and then later cleaning.”
“I asked the applicant when he last studied. He confirmed this was the Certificate III, and he had not studied after April 2009. I put to him that he could not claim that he was not studying as he was waiting for his visa as in the 1 and half years prior to the Delegate’s Decision, and during which time he held a student visa, he was not studying. I put to him that with such a history I could accept that he was a genuine student for entry and stay as a student. His adviser Mr. Deshwal asked the applicant if this was correct, and he had not in fact studied since the end of that course in April 2009, and hence wasn’t studying in the 1 and 1/2 years up to the time of the Delegate’s Decision. The applicant confirmed that this was correct.”
The applicant disputed the findings of the MRT. However, there is no record that he ever tried to appeal the decision and the Tribunal places weight on those facts against the applicant’s case and finds that the applicant did not comply with the conditions of his student visa as contained in the Decision dated the 19 December 2012.
The Tribunal questioned the applicant about why he had travelled to Australia in 2007 with the fake identity. He blamed the agent who prepared the documents. The Tribunal put to him that he must have signed the documents before they were submitted. He said he believed it was the agent’s fault. He said the agent never asked for his details. He said he did not sign for the documents and made a reference to his signatures having been collected. He said a travel agent booked his flights. Although he said he did not put the entire blame on the agent he did not specify what he did not blame him for. When he was asked whether he thought the agent had forged his signature he said” he must have done.”
He said he realised that his details were wrong when he received the file. He said he had paid 15 Lacs to the agent. His parents had sold their house for personal reasons. He said his flight was 2 to 4 days after that. He said that most of the details were completed by the agent. He said he was not old enough to question them. He was nearly 20 years of age at the time. The Tribunal was unable to elicit further evidence regarding the circumstances as to why and how the applicant travelled to Australia with an incorrect name and date of birth.
He was asked questions at the hearing about what happened at the time that his wife applied for a visa to study in Australia. He said that the agent told him that as he was the secondary applicant there was no need to worry about it. However, this evidence is not what is contained in the agent’s email dated the 21 September 2023 from Mr Swamy.
He said that he had told the agent face to face. He said it was his wife who wanted to travel to Australia. He said the agent gave him the impression that if he told the truth he may not get to go to Australia. He said that his wife only got to know about it this year. He said he told her immediately when he received the email from the Department. His wife confirmed that she found out about it in early February 2023.
He was asked questions about his criminal conviction whereupon he was charged for breaching a restraining order with threats to injure and harm in April 2018. He said that his wife must have called the police. He said it was 5 years ago. He had gone to work and worked a long shift. His mother-in-law was staying with them after the birth of the son. They also shared with another family. He said he was trying to sleep, and someone was making noise banging pots and pans. I woke up and had “some argument”. He said he was angry and raised his voice. He said he could not remember the details. In giving her evidence which is going to be dealt with further in this Decision Ms Rajput said it was a misunderstanding and blames other people for the incident including the police officer.
He confirmed that he has not worked since 31 July 2023 and that his wife has had to work. Prior to that date his wife and child spent time in India, and he said to get her son use to the culture and to visit his grandparents. His son spent an extended period in India after February 2020 due to the covid lockdown.
At the hearing the Tribunal heard evidence from the applicant’s wife and Mr Kumar.
Mr Kumar had provided a character reference for the applicant. He said that he knew the applicant in India. He said that they both lived in the same hometown and became friends through playing cricket when they were 18 to 20 years old. He said that his family and the applicant’s family were known to each other. He said he is now a permanent resident of Australia and that his wife and children are Australian Citizens. He said that he lives in Melbourne and has lived there for most of his time in Australia.
He said that he remembered driving the applicant to the airport with his friends when they were young, and the applicant was travelling to Australia to study.
When he was asked whether he had been told that the applicant had a problem with the immigration department. He said that he did not know any details save and except that it had something to do with fake documents and name change. He did not tell him why he faked documents. He knew nothing about different identification.
It transpired that the applicant and Mr Kumar did not have a lot of personal face to face contact since Mr Kumar arrived in Australia 13 to 14 years ago. He said that he had once travelled to Western Australia where the applicant lived for 2 nights and that he met the applicant’s wife. He had never met the applicant’s son. The contact has been by telephone or video calls mainly. The Tribunal does not place a lot of weight on the evidence as Mr. Kumar was unaware of specific details of the incorrect information that was provided to the Department by the applicant. He does not appear to have had a close personal tie to the applicant because he had very little face to face contact with him for the last eight years. The impression that the Tribunal had is that the applicant did not confide in Mr. Kumar by telephone as he was unable to shed light on why the applicant ended up with a fake identity during his first visit to Australia, although Mr. Kumar remembered accompanying him to the airport on the day of his departure.

The Tribunal also heard evidence from the applicant’s wife Ms Pooja Rajput (the applicant’s wife). Ms Rajput stated that she found out that the applicant had previously travelled to Australia in the second week of February 2023. She had returned from an extended trip to India with her son when he mentioned that he had heard from the Department. She said that she was shattered and that had she known about the fact that he had previously been living in Australia she would not have “married this man.” She had spoken to her father who had been involved in the arranged marriage and had trusted that there would not be a difficulty at the time of the arranged marriage. She blamed the fact that due to the language barrier (being that the parents come from different towns and speak different dialects) and their lack of understanding of the language barrier that may have caused a difficulty.
The Tribunal finds that Ms. Pooja was direct in her answers and based on her answers formed the view that she did not have any knowledge of the fact that her husband had previously travelled to Australia.
In his oral evidence the applicant stated that he spoke to the migration agent Mr. Swamy and advised him that he had previously travelled to Australia but was told not to worry about that fact as he was only a dependent on his wife’s visa and that should not matter. He blamed the agent for not including the details in the application. However, it is contrary to the email dated the 21 September 2023 lodged at the Tribunal prior to the hearing, on the 23 September 2023.
The agent is blaming his employees for not mentioning the fact that the applicant had previously travelled to Australia. Regardless of the position the applicant did tell the agent about his previous travel to Australia. It could be that the applicant was given the wrong advice and the Tribunal cannot make a finding that the applicant deliberately withheld the information although there is a likelihood that he did not want to provide the information to the Department as it was against his interests.
Ms. Rajput said that the applicant’s parents are embarrassed by the issues and that she cannot address it with them due to the cultural issues.
She confirmed that she has a close relationship with her mother who had arrived in Australia a month before the birth of their son and stayed for 6 months on a Visitor’s Visa.
She confirmed the contents of the movement records that showed that she had returned to India each year to visit her parents. She had returned for a longer period in 2015 because she had an infection of her foot and needed medical attention. She also went back for 2 months in 2016 because of what she termed the “abnormal pregnancy”
She had returned to India on the 29 November 2022 until 1 February 2023. At that time the applicant was the main breadwinner and was unable to travel with his wife and child to India.
She said that after her son was born, she had breastfed him for 2.5 years and that this was the reason that she always took him to India. When she went to prepare for her PTE exams, she took her son with her and stayed at her parent’s home as his parents were visiting Australia and she took her son with her so that he would not be a burden for the applicant.
The applicant’s case is that his wife Pooja is the main breadwinner and she stated she wanted to remain in Australia because of her career aspirations. She did not work in Information Technology until 3 months before the hearing. She had no choice but to become the main breadwinner because the applicant’s visa was cancelled by the Department as he was unable to work for the 3 months.
Prior to that time, she worked as a carer and he worked as well. They said that the son is more attached to his father.
The applicant portrayed himself at the hearing as a victim of circumstances. His oral evidence and written statement revealed that he considers himself to be a victim of unfortunate events caused by the advice from representatives, closure of a college and just bad luck. He considers himself to have been caught up with mistakes made by other persons that were supposed to advise him and guide him. He states in his written submissions received post hearing: “I deeply apologise to the immigration Department that I haven’t informed then about my previous travel history to Australia. I am a normal human being want to live a normal life with my family.”
His wife Pooja came across as a confident person. She was also keen to enforce the notion that she was career minded in that she had secured a job in the field of information technology. This was because the applicant’s visa was cancelled, and he did not have work rights. She has spent a lot of time visiting her family in India with her son prior to the 2/2/2023.She said that her son would not fare well in India due to the difficulties with the dialects as the grandparents come from different parts of India.
She said in her post hearing submissions that she has no savings and could not afford to return to India. She said that she is now working in Information Technology and that she has been waiting for 6 years to do so and she has no intention of returning to India as she wishes to provide better opportunities for her son.
Submissions after the hearing
The applicant was asked to comment on 3 documents after the hearing in writing and he was given 14 days to comment in accordance with Section 359A. He was provided through his agent with a letter pursuant to Section 359A and was asked to comment on the information on the 2 October 2023. On the 3 October 2023 the applicant through his agent responded that he wanted the Tribunal to elaborate specifically which part in each of these documents the Tribunal sought comments / submissions from both clients. This was explained to him at the hearing as he said that he had never read the MRT Decision. As he had said that he had not read the Decision and denied at the hearing the facts contained in the Decision he was required to comment and why he had not complied with the conditions of his Student Visa as he had not studied for 3.5 years prior to the decision. The documents provided to him pursuant to Section 359A were as follows:
Movement record of the applicant
Movement record of his wife
Record of Decision of MRD 19 December 2012.
The applicant’s written submissions received on the 16 October 2023 can be summarised as follows:
He said that he had arrived in Australia in March 2007. He did an English Course and completed a Certificate IV in Business Management.
He said that he completed a Certificate III in Commercial Cookery from Meridien College in 2009.
He said that he then travelled back to India as his father had a medical condition in July 2009. After he returned from India in November 2009, he said that he continued to study at the college for a Certificate IV in Advance Accounting, but his college shut down. He said that he did not received a completion letter nor a refund from the College. He then said that his representative led him up the wrong path as he should have applied for a Graduate Visa as he had been studying in Australia for 2 years, but he followed the advice of the agent. He effectively blames the agent for the fact that his visa was refused, and he then applied for a Review of the Decision of the delegate to MRT.
He said that he was on a bridging visa when he travelled back to India in June 2012 to check on his father. He said his grandfather and his father were both ill in India.
He said that he returned to Australia in December 2012 and that he was unsuccessful with his Application for review of the Decision through the MRT on the 19 December 2012. He said that because of wrong advice by his agent that he accidentally overstayed his visa by 5 days. The Tribunal accepts his explanation that he did not intentionally stay over the period of his visa in Australia. He said that he returned to India on the 3 February 2013 and that his grandfather passed away on the 26 February 2013.
His submissions did not address the specific details of why he did not study in the 3.5 years prior to the Decision and did not comply with his visa obligations.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with s 101 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. Briefly, they are:
the correct information
The Delegate of the Department has aptly summarised in the Decision the instances that the applicant did not provide the correct information to the Department as follows:
“In the application for the Student Visa (subclass 573) visa application lodged on the 31 May 2014, the visa holder failed to declare that he has another identity which he previously used to apply for Australian visas, enter and stay in Australia. Specifically, he provided incorrect answers when he answered “no” to the questions asking whether he had previously applied for any Australian visa, whether he has any visa application refused, and whether he lived outside of India, his country of passport, in the past 5 years prior to the lodgement day of the Student (Subclass 573) visa. He also incorrectly affirmed that he provided complete, correct, and up to date information in the application for the Student visa lodged on 31 May 2014 by acknowledging the statements at the “Declaration and Consent” section and providing his signature in this application.
The correct information is:
The visa holder, under the identity of Sandeep Sandeep , applied for a Student (subclass 573) visa on the 24 January 2007 and was granted the visa on 12 March 2007.
The visa holder, under the identity of Sandeep Sandeep , applied for a Student (Subclass 572) visa on the 23 September 2010 and was refused the visa on the 26 November 2010. This refusal was affirmed by the MRT on the 20 December 2012.
The visa holder, under the identity of Sandeep Sandeep, lived in Australia for the majority of time from your first arrival on 21 March 2007 to 3 February 2013.
The visa holder provided similar answers in the subsequent visa applications, for the Temporary Graduate visa lodged on the 25 August 2016 and for the Skilled – Independent visa lodged on 20 October 2018, for which he was granted the visas.
As such his answers in relation to his identity and his past immigration history, for the purpose of the Student (subclass 573) visa application, Temporary Graduate visa, and the Skilled – Independent visa, are not correct. The correct information is significantly different from the information provided by the visa holder in the Student (subclass 573) visa application form lodged on 31 May 2014.”
At the hearing the Tribunal asked the applicant why he had travelled to Australia under the name of Sandeep Sandeep in 2007. He said that when he noticed the mistake, but it was too late to change the name as he did not get his documents with the wrong name until he was ready to fly out to Australia. He blamed his agent for the mistake in 2007.
He said that he did mention to the agent after his marriage to his wife when she was applying for the student visa to come to Australia in March 2014. He said in his written submissions filed after the hearing as follows:”
“I got married in 2013 November with Pooja Rajput and was busy for 2 -3 months in all the rituals after marriage, travelling, visiting relatives and temples. As it was an arranged marriage, I thought that my parents must have informed her family about my travel history to Australia. To my surprise in March 2014, she mentioned that she wants to pursue Higher Studies in IT and wants to go to Australia. I have suggested to her other countries, but she decided what she wants. She mentioned that she knows a higher study consultant Mr Raju Swamy in New Delhi and spoke to him and there onwards I started meeting and dealing with him regarding the application for higher studies.
I have mentioned my travel history to him, and he advised me that Pooja is the primary candidate in this application, and you don’t have to do anything as you will be on a dependent visa, so I don’t need your history.”
The Tribunal finds that the applicant knowingly included information that he knew was false in his application for a visa in 2014 and all other visas after that.
The applicant did admit in his Response to the s107 Notice NOICC that he had another identity Sandeep Sandeep date of birth 4 March 1985 and resided in Australia between 2007 and 2013. He acknowledges that he has not complied with Section 101(b) of the Act.
The Tribunal places a lot of weight on this consideration in favour of cancelling the visa.
the content of the genuine document (if any)
Not applicable
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 applicant lodged his Application for a Student visa (Subclass 573) visa on the 31 May 2014. In assessing the Application, the delegate considered all relevant criteria based on the information provided in the application, including the requirement prescribed at regulations 573.326 of Schedule 2 of the Migration Regulations 1994 in effect at the time.
Based on the answers provided in the application form, including incorrect answers the applicant provided in relation to his identity and his past immigration history, the delegate was satisfied that the applicant met all relevant secondary criteria based on the information provided in the application, including the requirement prescribed in regulation 573.326 of schedule 2 of the migration regulations 1994 in effect at the time.
Regulation 573.326 states that
The minister is satisfied that:
(aa) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor – the intentions of the parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter
Based on the answers in relation to his identity and his past immigration history, the delegate was satisfied that the applicant met all relevant secondary criteria.
In his response to the NOICC, the applicant admits that he has another identity and that he resided in Australia in 2007 and 2013.
The applicant arrived in Australia in 2007 on a student visa under the identity of Sandeep Sandeep. He applied for a further Student Visa on the 23 September 2010, and it was refused by the delegate of the department on the 26 November 2010. It was refused on the basis that the applicant was not a genuine applicant for entry and stay as a student because he did not satisfy the requirements of cl. 572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant applied to the Australian Government Migration review Tribunal on the 10 December 2010 for review of the delegate’s Decision.
At the hearing it was recorded by the member that he had before him the Department’s file relating to the applicant. The Tribunal also had regard to the material referred to in the delegate’s Decision and other material available to it from a range of sources.
The Decision record states that the applicant appeared before the Tribunal on the 19 December 2012 to give evidence and present arguments.
The applicant was represented by his registered migration agent who also attended the hearing on the 19 December 2012.
The record of the decision dated the 19 December 2012 states as follows on Page 9 of the Decision:
21 The Tribunal asked the applicant to detail what he had studied and completed since arrival in Australia. He said he had completed a Certificate III in April 2009. He produced copies of some certificates detailing that he that he completed a Diploma of Business Management from 7 May 2007 to 18 April 2008; a Certificate IV in Business Management – the certificate is dated the 18 April 2008; and a Certificate III in Hospitality (Commercial Cookery) from the 28 April 2008 to 17 April 2009.
22, I asked the applicant to detail what he had studied and completed since the completion of the Certificate III on the 17 April 2009, i.e., for the past 3 years and a half year. He said he had not undertaken any other studies as “ I have been waiting to get my visa… I have been mentally sick and went home to India for a period but after 21/2 months I came back, and I didn’t work as well. “I asked what he had been doing during this period if he hasn’t been studying. He said, “I’ve just been staying at home nothing else.” He then added that he had started work in May or June 2011 at first at a service station and then later cleaning.”
23 I asked the applicant when he last studied. He confirmed this was the Certificate III and he had not studied after April 2009. I put to him that he could not claim that he was not studying as he was waiting for his visa as in the 1 and a half years prior to the Delegate’s Decision, and during which time he held a student visa, he was not studying. I put to him that with such a history I could not accept he was a genuine applicant for entry and stay as a student. His advisor Mr. Deshwal asked if he could clarify this with the applicant. Mr. Deshwal asked the applicant if this was correct, that he had not in fact not studied since the end of that course in April 2009, and hence wasn’t studying in the 1 and ½ years up to the time of the Delegate’s Decision. The applicant confirmed that this was correct.
24 In response to the above I put to the applicant that I did not accept that he was a genuine applicant for entry and stay in Australia as a student, and I considered he had only enrolled in the current courses to extend his stay in Australia.
25 The applicant said” that is all”. He had nothing further to say.
On the 29 September 2023 when the applicant appeared at the hearing before the Tribunal the Tribunal asked him questions to confirm the statements contained in the Decision of the Migration Review Tribunal on the 19 December 2012.
The Applicant stated that he had never read the Decision. The decision was not the subject of an appeal.
The Tribunal explained to the applicant that the Tribunal planned to rely on the contents of the Decision in making its Decision and therefore would be providing the applicant with a copy of the Reasons for decision of the Migration Review Tribunal dated the 19 December 2012 so that he could have 14 days to comment on the contents of the document.
The Tribunal received submissions dated the 16/10/2023 in response to the invitation to provide further information or comments about the attached documents.
The applicant provided a timeline of his travels to and from Australia and India.
The Tribunal finds that the applicant did knowingly omit he correct information as he was concerned that the Department would likely reject his application for a visa since he previously travelled on an incorrect identity, did not comply with his Student visa obligations and left Australia later than he should have done so after his review application was determined on the 19 December 2012.
The Tribunal places a lot of weight on this consideration against the applicant’s case.
the circumstances in which the non-compliance occurred
The applicant set out in his response to the NOICC. He said that when he left Australia in 2013, he assumed that he would never return. However, after his arranged marriage his wife chose to continue her education in Australia. He did not disclose his immigration history to his wife as he did not want to negatively impact his relationship.

He did speak to the agent who prepared his wife’s and his application for the Visa in 2014
His evidence is that he was told by the agent not to worry but the agent is saying that his staff forgot to include the information.
The Tribunal has considered the fact that the applicant did omit the correct information and because of the same was able to travel and remain living in Australia.
The Tribunal places some weight on those facts in favour of cancelling the Visa.
the present circumstances of the visa holder
The applicant and his wife are settled in Western Australia. His wife is the main breadwinner. They do not have any savings as they are living off her salary and they cannot afford to return to India. If the applicant’s visa is cancelled the parties will have to live separately and apart. This is likely to cause her a lot of hardship.

100. The applicant’s son Mouray was born in Australia and presently attends school. He is receiving treatment for speech delay. He is slowly learning and gaining confidence in his speech at school. His parents are concerned that an upheaval in his life is likely to cause him to regress. If the applicant returns to India, his wife will have difficulty coping as a single parent, but she is determined to remain living in Australia.
101. The applicant and his wife are likely to face challenges in their culture if they were to live separately and apart.
102. The Tribunal places significant weight on those facts in favour of not cancelling the visa.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
103. There is no doubt that the applicant had opportunities since the first instance of noncompliance to correct the incorrect information but chose not to so. As a result of those facts the Tribunal does place some weight on those facts in favour of cancelling the visa.
any other instances of non-compliance by the visa holder known to the Minister
104. There are no known instances of noncompliance known to the Minister so the Tribunal places weight on those facts in favour of not cancelling the visa.
the time that has elapsed since the non-compliance
105. The applicant and his family have lived in Australia since 2014.
106. During their time in Australia, they both worked, and no doubt have close friendships with members of the community in Australia as they provided various character references from friends in the community.
107. Considering the time that has elapsed since the noncompliance the Tribunal places some weight on those facts in favour of not cancelling the visa.
any breaches of the law since the non-compliance and the seriousness of those breaches
108. Since his arrival in Australia the applicant has been charged and convicted of breaching a restraining order with threats to injure or harm and for driving under the influence of alcohol.
109. This occurred in 2018 and there are no further breaches. The matters were addressed at the hearing and it appeared that it may have been based on a misunderstanding. The applicant’s wife said that if his visa was cancelled, she could not live without his support in Australia.
110. The Tribunal places no weight on those facts in favour or against the cancellation of the visa.
any contribution made by the holder to the community.
111. The Tribunal accepts that the applicant is engaging in community activities by volunteering in community activities at his son’s school and donating blood at the Red cross.
112. The Tribunal places some weight on those facts in favour of not cancelling the visa.
113. 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 consequential cancellations under s 140.
114. There is no evidence of any consequential cancellations pursuant to Section 140 of the Act.
if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].) whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
115. The applicant’s wife and son are presently residing in Australia and as a signatory of the UN’s Convention on the Rights of the child CRC, Australia has an obligation to consider the best interest of the child.
116. The Tribunal is required to turn take into consideration to the consequences of cancellation, including whether a child will be separated from its parent. The Tribunal has considered the International Covenant on Civil and Political Rights (ICCPR) and the possible effect of the visa cancellation on family unity.
117. The Tribunal considers that if the applicant’s visa is cancelled that he will be separated from his son as his wife indicated that she will not be returning to India. She said that she would have difficulty living in Australia without her husband but that she was keen to pursue her career.
118. The Tribunal places a lot of weight on those facts in favour of the applicant’s case in not cancelling the visa.
whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
119. If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention under Section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia as they no longer hold a valid visa.
120. He may be barred from being granted certain types of visas for a period of 3 years from the date of cancellation.
121. The Tribunal gives this consideration a little weight against cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
122. There are no other relevant matters to be taken into consideration.
CONCLUDING PARAGRAPHS
123. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
124. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.
Noelle Hossen
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.

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 4868

12 December 2023

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