Rajdeep Kaur (Migration)

Rajdeep Kaur (Migration) [2020] AATA 6213 (30 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rajdeep Kaur
REPRESENTATIVE:  Mr Harjeet Singh Chahal (MARN: 1688913)
CASE NUMBER:  2204387
HOME AFFAIRS REFERENCE(S):          BCC2022/318173
MEMBER:Michael Biviano
DATE:30 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 30 September 2022 at 12:35 pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant gave an incorrect answer in the visa application – applicant had provided a bogus employment document – Tribunal is satisfied that the applicant was employed at Hotel KLG from 9 August 2017 to at least 6 August 2021 – genuine desire to continue to study – has made contributions to the community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109,499
Migration Regulations 1994 (Cth), r 2.41, cl 500.212
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 delegate cancelled the visa on the basis that:-
(a)the applicant gave an incorrect answer in the visa application in contravention of s 101(b) of the Act that she was currently employed with Hotel KLG as a Guest Relations Supervisor at the time of the application. The delegate found that the applicant had not been employed with Hotel KLG from at least March 2020, at which time the hotel was closed due to the COVID-19 pandemic and due to renovations,; and
(b)she provided an employment confirmation letter from Hotel KLG International dated 6 August 2021 confirming that she was employed with Hotel KLG International as a Guest Service Supervisor as at the date of the letter and that she commenced work for them on 9 August 2017, which the delegate considered bogus as the applicant was not employed as at the date of the letter, in contravention of s 103 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 17 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 s 107 notice was constituted by the Notice of Intention to Consider Cancellation (NOICC) dated 7 March 2022.The non-compliance identified and particularised in the s 107 notice was non-compliance with section 101(b) and 103 of the Act in the following respects:
(a)The applicant applied for a Student visa on 13 September 2021 to undertake study in Australia. The applicant completed an on-line application form, ‘Application for a Student visa’ in which she provided the following answers (in part) which are in bold:
Page 2
Primary Applicant
Passport details
Enter the following details as they appear in the applicant’s personal passport.
Family name: RAJDEEP KAUR
Given name:
Sex: Female
Date of birth: 05 Nov 2000
Passport number: R4846075
Page 8 & 9
Employment
Employment history
Give details of the applicant’s employment and unemployment history since leaving school/college/university.
Employment history details
Employment status: Employed
Is this applicant’s current employment situation?
Yes
Employer/business details
Give details of the employer/business.
Organisation name: HOTEL K L G INTERNATIONAL
Industry type: Accommodation and Food Services
Organisation address
Note that a street address is required. A post office address cannot be accepted as an organisation address.
Country: INDIA
Address: SCO 121-22-23-24
SECTOR 43 B
Suburb/Town: CHANDIGARH
State or Province: CHANDIGARH
Postal code: 160034
Contact person details
Give details of the contact person within the organisation.
Family name: GROVER
Given names: AMAN
Position details
Position: GUEST RELATION SUPERVISOR
Date from: 09 Aug 2017
Page 14
Declarations
Warning:
Giving false or misleading information is a serious offence.
The applicants declare that they:
Have read and understood the information provided to them in this application.
Yes
Have provided complete and correct information in every details 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
(b)In support of the applicant’s employment experience, the applicant provided the following documentation:
·Hotel KLG International – employment confirmation letter – dated 6 August 2021 – signed by KLG Finance Pvt Ltd, Director, Aman Grover. The letter stated the applicant is currently employed with Hotel KLG International as a Guest Service Supervisor and commenced working for them on 9 August 2017.
·Hotel KLG International – appointment letter – dated 7 August 2017 - signed by KLG Finance Pvt Ltd, Director, Aman Grover. This letter stated the applicant will commence employment with Hotel KLG International on 9 August 2017 in the position Guest Relation Executive.
(c)As part of the Student visa application, the applicant also submitted an undated document titled ‘Statement of Purpose’. In the Statement of Purpose, the applicant stated that she completed her secondary education in 2017, then on 9 August 2017, she joined Hotel KLG International as a Guest Relations Executive, and that after one year she was promoted to the position Guest Service Supervisor and she continued to be employee of Hotel KLG International. She concluded the Statement of Purpose by stating that she looked forward to studying at Le Cordon Bleu in Australia.
(d)As the applicant met the relevant criteria and she was granted a Student visa on 22 September 2021 which is valid to 15 March 2024.
(e)The applicant arrived in Australia on 17 December 2021. She was enrolled to study at Le Cordon Bleu Australia Pty Ltd. The delegate noted that all of her enrolments with Le Cordon Bleu Australia Pty Ltd have been cancelled and she does not have a current confirmation of enrolment and does not appear to be studying.
(f)Since the grant of the student visa to the applicant, integrity checks that were undertaken by the Department’s office overseas indicate the Hotel KLG International employment confirmation letter dated 6 August 2021, which the applicant provided in support of her Student visa application is non-genuine.
(g)According to the Hotel KLG International, they have been closed since March 2020 due to the COVID-19 pandemic and were undertaking renovations. Therefore, the delegate considers that she was not employed for Hotel KLG International at the time she applied for her Student visa and was not working for them from March 2020 when the hotel temporarily closed.
(h)As a result the delegate considered that the Hotel KLG International employment document dated 6 August 2021, which she submitted in support of her Student visa application is bogus within the meaning of s5 (1)(b) of the Act.
(i)The delegate considered that the applicant provided an incorrect answer in her application for a Student (subclass 500) visa when she stated at pages 8 & 9 that she was currently employed with Hotel KLG International in the position of Guest Relation Supervisor. The delegate considered that she was not employed with Hotel KLG International from at least March 2020, when the hotel closed due to the COVID-19 Pandemic and to undertake renovations, and she was not employed at the hotel when she applied for her Student visa.
(j)By answering ‘yes’ to the Student Declaration on page 14 of the form ‘Application for a Student visa’, the applicant agreed to provide complete and correct information in every detail of her application form. However, the delegate considered that she did not do so as she was not currently employed with Hotel KLG International at the time she applied for a Student visa on 13 September 2021 and she had not been working for them since March 2020, the date the hotel closed due to the COVID-19 Pandemic and undertaking renovations. As the Hotel KLG International employment document dated 6 August 2021 is a bogus document, the delegate considered the applicant had provided an incorrect answer on pages 8 & 9 in relation to her employment history with Hotel KLG International.
(k)Further the delegate considered that the applicant had not complied with section 103 of the Act because in support of her application for a Student visa the applicant provided the following document which the delegate considered to be a bogus document:
·Hotel KLG International – Employment confirmation letter – dated 6 August 2021 – signed by KLG Finance Pvt Ltd, Director, Aman Grover. The letter states the applicant is currently employed with Hotel KLG International as a Guest Service Supervisor and commenced working for them on 9 August 2017.
(l)As the applicant had provided a bogus employment document with her application for a Student visa, the delegate considered she had not complied with s103 and had provided a bogus document to a Departmental officer who was performing a function under the Act, namely the assessment of a visa application and had the Departmental officer been aware that that document was bogus at the time of assessing the application, the Student (subclass 500) visa would not have been granted.
(m)Accordingly, the Student (subclass 500) visa is liable for cancellation consideration, for non-compliance with sections 101(b) and 103, under section 109 of the Act.
The applicant filed 2 statements dated 21 March 2022 signed by herself in response to the NOICC together with the supporting documents (Response). The Response was provided in relation to the issues regarding the bogus document and inaccurate visa application:-
a.She was shocked to read that she had provided a bogus document as she had no need to provide false documents. She claimed that she was shattered inside as she had not made any known mistakes.
b.She attended an interview at Hotel KLG but was not ultimately hired as a chef because she did not have the necessary academic background;
c.She was ultimately employed by Hotel KLG International as a Guest Relations Executive on 9 August 2017 and within a year she was promoted to Guest Relations Supervisor.
d.She was a valued employee at the hotel.
e.When the government ordered the closure of the hotel due to the COVID-19 pandemic, some staff were retained to maintain the premises and provide proper response to the clients. She was chosen to work during the lockdown period. She worked for the hotel throughout the lockdown period and when the hotel re-opened with 50% occupancy, she continued with her employment. She claimed that she never took a break during their employment with the hotel.
f.She spoke to the director of the hotel, Aman Grover about her “predicament” and he provide an explanation letter which she has provided with her Response.
g.The hotel had temporarily closed down for renovation purposes after the applicant resigned from her job in August 2021 and not before.
h.She changed her course of study and course provider in early 2021 from Certificate III and IV in Commercial Cookery and Diploma of Hospitality Management at Le Cordon Bleu Australia (LCB Courses) to a Certificate IV in Commercial Cookery and Diploma of Hospitality Management at Chambers School of Business (Chambers Courses).
The applicant submitted the following documents with the Response in response to the NOICC and to support her claims:
·Copy of an extract the applicant’s Passport (Republic of India) R4846075.
·CC4A7887 - Overseas Student Confirmation-of-Enrolment (CoE) – Chambers School of Business Pty Ltd - Diploma of Hospitality Management – Course start date: 07/08/2023 – Course end date: 04/02/2024.
·CC4A3170 - Overseas Student Confirmation-of-Enrolment (CoE) – Chambers School of Business Pty Ltd – Certificate IV in Commercial Cookery - Course start date: 07/02/2022 - Course end date: 06/08/2023.
·Letter from Hotel KLG International – signed by Director Aman Grover – dated: 16 March 2022 – The letter states the visa holder was employed as a Guest Service Supervisor from 9 August 2017 and remained working for the restaurant offline when the restaurant closed due to the COVID –19 pandemic in March 2020. The restaurant re-opened in November 2020. The director also confirmed that the hotel is temporarily closed for renovations and the website is down due to the “urgency to meet the important changes” and the visa holder ceased working at the hotel due to her study arrangements in Australia.
·Letter from Hotel KLG International - signed by Director Aman Grover – dated 10 August 2021 – The letter states the visa holder is working at the hotel as an Executive Chef from 9 August 2017 to date of letter.
·Letter from Hotel KLG International - signed by Director Aman Grover – dated 7 August 2017 – The letter states the visa holder has been appointed as Sous Chef and provided the terms and conditions of employment.
·Several photos of the restaurant, undergoing renovations.
·Business Card – Aman Grover – Owner – Hotel KLG International.
The applicant by the Response and in evidence denies the non-compliance and breach of ss 101(b) and 103 of the Act.
The Tribunal notes that the applicant is a 22-year-old Indian national who obtained a Student (Class TU) (Subclass 500) visa on 22 September 2021, which had a visa expiry date of 15 March 2024.
The Decision Record of the delegate of the Department of Home Affairs dated 24 March 2022, which was provided to the Tribunal by the applicant, confirms the Department cancelled the Student Visa and the reasons for the cancellation of the visa (Decision Record).
The Decision Record confirms that the applicant arrived in Australia on 17 December 2021 and that she held an enrolment to undertake the LCB Courses.
The applicant in her Statement of Purpose, which supported the application for a Student visa relevantly claimed regarding her employment history and studies in Australia as follows:-
I have completed my secondary education in 2017. I had no plans to continue my bachelor degree. I was searching for course relate to skills so I have joined Hotel K L G international as a guest relation executive from 9^th August, 2017. I always had my interest towards hospitality from my schooling time. I have cooked foods at my family home independently many times. I got lot of appreciations from my parents due to my cooking skills. But I was not able to get the job as a chef without any professional qualification or professional experience. So I want to stay touch with hospitality industry and decided to join hotel K L G as a Guest Relation executive. I am continuing working with Hotel K L G as a Guest service supervisor till date. But Now I like move forward and want to achieve more success in hospitality business. So I always had my dream to be get success as a chef. It will challenging and rewarding career as a chef. But it is not possible without any proper skills and qualification in same field. I have learnt a lot in last 4 years about hospitality business during my job as a Guest Relation Supervisor with Hotel K L G. Now I have decided to challenge myself as a chef in hospitality industry. But it is not possible without proper skills and qualification. I started my research for hospitality course in later 2019 but I had delayed my study due to covid-19 pandemic restriction in my home country...
I have been working since 09^th August, 2017 with Hotel K L G as a Guest Relation supervisor. I joined Hotel K L G teams as a Guest Relation Executive in the beginning. I have been promoted to Guest Relation supervisor after 1 year. I learnt a lot in last 4 years. Now I have decided to carry forward my cookery study as well as hospitality course to upgrade my skills for long term success in hospitality industry. I had decided to continue my Certificate III and Certificate IV in commercial cookery leading to advanced diploma of hospitality management at Le Cordon Bleu.
The applicant in evidence claimed that: -
a.She had completed secondary school in 2017. She had not undertaken any hospitality qualifications back in India. She had a friend working at the Hotel KLG International (KLG) who told her that they were hiring for the position of a chef and that she liked to cook. She applied for the position and it was offered it to her, without meeting her and having any formal cooking qualifications. She received a letter of offer dated 7 August 2017 to work as a sous chef. At the date of the letter, the applicant was 16 years of age.
b.The applicant confirmed that on meeting HR representatives of Hotel KLG, in August 2017 and on the company becoming aware she had no formal cooking qualifications, they offered her an alternative position of Guest Relation Executive, which required her to check in/check out guests, sort out problems and welcome guests. She worked in that role for one year. She was then promoted to the role of Guest Service Supervisor. The applicant confirmed that this role had large responsibilities and duties:-
i.In training and hiring staff;
ii.Handling more complicated problems within the business with guests; and
iii.Being a leader in the business with 5 members of staff reporting to her. She claimed her pay increased from IPR 12,000 per calendar month to IPR 18,000 per calendar month over the course of her job.
c.The applicant claimed that Hotel KLG had 25-26 hotel rooms and a large function room for weddings.
d.In March 2020, as a consequence of the COVID-19 pandemic the applicant was unable to work in her role at the hotel, as it was closed due to government guidelines for a period of 6 months. However she was continued to be employed at 50% pay for those 6 months and worked looking after the restaurant and cleaning – working 5-10 hours per week and responding to customer queries by telephone. She was also undertaking English studies online which complemented her role at Hotel KLG.
e.She claimed that in October 2020, Hotel KLG reopened at 50% capacity and she returned to her duties and full time role.
f.The applicant claims that in 2021 she decided to undertake study here in Australia and as at August 2021, she had not obtained a student visa but claimed that she was assured that she would be able to get a student visa to study in Australia. Such evidence was remarkable in light of the travel restrictions imposed on travel in and out of Australia at the time in 2021, which would have made it difficult to come to this country in August 2021.
g.The applicant claimed that she left her job at Hotel KLG in August 2022. She could not recall the precise date that she finished work but believed it was between 6 and 10 August 2021. At the time of leaving Hotel KLG, the hotel was continuing to operate.
h.The applicant requested from her employer a letter setting out her work experience and details, as she was planning to go overseas and study. The applicant submitted the letter from Aman Glover of KLG dated 6 August 2021 (6 August letter), which confirmed she was working as a Guest Service Supervisor from 9 August 2017 to the date of the letter and her monthly salary is IR 18,000. This is the document which the delegate found was bogus on the basis that the hotel was closed from March 2020.
i.The applicant received a further letter from Aman Glover, director of KLG dated 10 August 2021 which was provided to the delegate with the Response to the NOICC (10 August letter). That letter certified that the applicant is working from 9^th August 2017 til the date of the letter and her monthly salary was IR 17,500 per month. The letter stated that she had a number of roles in the kitchen including creating new entrees, inspecting food quality, estimating food and labour costs. The applicant confirmed that the contents of the letter were false. It was unclear why the letter was provided to the applicant and moreover why she provided it to the Tribunal in support of her application.
j.The applicant submitted a further letter from Aman Glover to the delegate dated 16 March 2022, which sought to explain the applicant’s work arrangements during COVID-19 pandemic. The letter confirmed that she worked as a Guest Service Supervisor at the hotel and she commenced employment on 9 August 2017. It confirmed that the hotel was closed from March to September 2020, but some staff were retained to continue working including the applicant, and the hotel reopened in November 2020 at 50% and she continued working. The letter confirmed that the applicant left work to undertake studies and that the hotel is temporary closed for renovations and the website was down.
k.The applicant gave evidence at the time she left her employment in August 2021, the hotel was continuing to operate and the renovations commenced after her departure when she found out from the hotel, it was closed for renovations and she received photographs which show the works being undertaken.
l.The applicant submitted a further letter from Amon Grover director of Hotel KLG dated 24 June 2022 which sought to reiterate the applicant’s employment and circumstances with Hotel KLG and explain the contents of the 10 August letter. The letter reiterated that the applicant had initially been employed as a sous chef, but due to the lack of kitchen experience she was offered and accepted the position of Guest Relations Executive. The letter confirmed the applicant’s employment during the COVID-19 pandemic lockdown but confirmed that the 10 August letter was issued in error as she had not worked as a sous chef and apologised for the letter and any impact it may have on the applicant’s career.
m.The applicant claimed that she left work in August 2021 and that she had retained a migration agent in India to submit her application for a student visa. The applicant did not remember the date of the application but accepted it was 13 September 2021.
n.The applicant claims that the error as to her employment status on the visa application was due to the agent not updating the application to reflect that she had finished up her employment in August 2021.
o.The applicant gave evidence that she arrived in Australia on 17 December 2021 and that she was enrolled to study Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management at Le Cordon Blue Australia which was to commence in January 2022. However due to having COVID-19 symptoms during orientation, she was unable to undertake orientation and she commenced studying the Certificate III in Commercial Cookery without an orientation. She did not enjoy her studies and the courses were expensive. The applicant in the Response claimed that she became isolated in those studies and felt awkward and became depressed. The applicant decided to change education providers and enrolled in a Certificate IV in Commercial Cookery and Diploma of Hospitality Management at Chambers School of Business, which the COEs confirm that the enrolment took effect from 8 February 2022.
p.The applicant’s visa was cancelled on 24 March 2022 while undertaking her studies.

The Tribunal made directions at the hearing on 17 June 2021 allowing the applicant until 1 July 2022 to file any further documentation in support of the review application.
The applicant filed with the Tribunal additional supporting documents within the time provided:-
a.Letter from Sanjeev KF Bansal & Co, Chartered Accountants confirming that her employment and salary over the 4 years at Hotel KLG did not exceed the threshhold to pay income tax;
b.Pay slips from September 2017 to August 2021 confirming the applicant’s wages and employment over the 4 years period;
c.Letter from Aman Grover of Hotel KLG dated 24 June 2022;
d.Reference letter from Sri Guru Singh Sabha (The Sikh Cultural Society of Victoria Inc) dated 19 June 2022;
e.Statutory declaration of the applicant made 25 June 2022, confirming her evidence that she continued working for the Hotel during the COVID-19 pandemic.
The Tribunal has considered the applicant’s evidence, and the abovementioned documents, together with the documents provided to the Department and including but not limited to the Response and the Submissions.
The Tribunal accepts the applicant’s evidence that she commenced employment with Hotel KLG on 9 August 2017 initially she was offered the role of sous chef, but due to her lack of experience, was offered the role of Guest Services Executive and after 1 year was promoted to the role of Guest Services Supervisor where she remained employed until the termination of her employment which occurred between 6 to 10 August 2021, in order that she could undertake studies.
The Tribunal accepts both the evidence of the applicant and the statements of her employer in the letters dated 16 March 2022 and 24 June 2022, that the hotel closed from March 2020 to October 2020, due to COVID-19 restrictions, but that the applicant remained in employment although her duties were altered as there was no customers in the hotel. In November 2020, when the hotel re-opened to clients at 50% the applicant reverted to her previous duties.
Non-compliance with section 101(b) of the Act
The applicant, based on her evidence admitted that her employment with Hotel KLG ceased around 6 to 10 August 2021, which was more than one month before her application for a student visa was filed by the agent on 13 September 2021. She claimed that the migration agent was at fault for providing incorrect information about her employment status at the time of the application.
The Tribunal has had regard to s. 98 of the Act which provides:
98 Completion 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.
The effect of s 98 of the Act, is that the applicant is considered to have completed her application form, despite the alleged assistance she received from her agent who completed the form. In light of s 98 she is responsible for the incorrect information in the application form.
Having considered the above evidence, the applicant was not employed by Hotel KLG at the time of filing her application and the response about her employment status was incorrect as she was unemployed. Accordingly the applicant’s statement in the application was incorrect and constituted a contravention of s.101(b) of the Act.
The delegate had made findings that the Hotel KLG had been closed since March 2020 due to restrictions imposed due to the COVID-19 pandemic and due to renovations. Such finding is inconsistent with the totality of the evidence given by the applicant and the documents submitted including the pay slips, the letter given by Sanjeev KF Bansal & Co certifying her employment and salary over the 4 years period, her statutory declaration and letters provided by Aman Grover dated 16 March 2022 and 24 June 2022. The Tribunal accepts that the applicant remained in employment and continued working for Hotel KLG until August 2022.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) of the Act by the applicant but for a shorter period than that described in the s 107 notice, being from around 6 to 10 August 2021 to the date of the application on 13 September 2021.
Non-compliance with section 103 of the Act
The NOICC identifies that the letter from Hotel KLG dated 6 August 2021 provided to the delegate, which confirmed that the applicant was employed and had been employed since 9 August 2017 as a Guest Service Supervisor and was provided by Aman Grover, was a bogus document pursuant to section 5(1) of the Act because the Hotel KLG International had been closed since March 2020 due to the COVID-19 pandemic and it was undertaking renovations. Therefore, the delegate considered that she was not employed for Hotel KLG International at the time she applied for her Student visa and was not working for them from March 2020 when the hotel temporarily closed.
The delegate considered that the Hotel KLG International employment document dated 6 August 2021, that she submitted in support of her Student visa application is bogus within the meaning of s5 (1)(b) of the Act.
However in light of the above findings for non-compliance with s. 101(1)(b) that the applicant did continue working from March 2020 on reduced duties and returned to her full time duties when the hotel opened at 50% in November 2020, the Tribunal accepts that the contents of the letter dated 6 August 2021, are accurate, and therefore not bogus.
Nevertheless the Tribunal has concerns over the 10 August letter, which was inaccurate in that the applicant had not been employed as a sous chef and not performed the duties contained in the letter, and it was conceded by Aman Grover director of Hotel KLG in his letter dated 24 June 2022 submitted to the Tribunal, to have been issued in error. That letter was not relied upon in support of the visa application and appears to have been submitted to the delegate with the Response to the NOICC. The delegate made no finding that the 10 August letter was a bogus document, but there would appear grounds to claim it may have been a bogus document.
The 10 August letter had no probative value and did not support her application. It appears that the applicant has on-forwarded the documents provided by her employer in an attempt to make full disclosure. The applicant’s former employer concedes the letter of 10 August letter was sent in error. The delegate in the Decision Record confirmed that the existence of the 10 August letter, raised concerns whether the applicant was employed at Hotel KLG. Such concerns are understandable but in light of the further evidence produced and documents filed, the Tribunal is satisfied that the applicant was employed at Hotel KLG from 9 August 2017 to at least 6 August 2021, in the position of Guest Services Executive and being promoted to Guest Services Supervisor within 12 months.
In light of those finding the Tribunal finds that the contents of the letter of 6 August 2021 are not bogus and it does not constitute a contravention of s 103 of the Act.
For these reasons, the Tribunal finds that there was no non-compliance with s 103 of the Act 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 content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
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.
As discussed above, the applicant has outlined in evidence and the Response the reasons why the visa should not be cancelled.
The applicant claimed in evidence that she did not intentionally seek to mislead the Department with the application and statement about her employment with Hotel KLG. As discussed above she claims the error on the application was as a result of her agent making an error on the application and the documents relating to her employment were provided to her by her employer.
The applicant in the Response outlined the reasons why the visa should not be cancelled. They were aptly summarised by the delegate in the Decision Record as follows:
·They are a genuine student and are currently studying and wish to complete their studies for a good career in Hospitality in India.
·They have been a hard worker all their life and a genuine student.
·As an international student they are within their rights to change education providers. Their expectations at Le Cordon Blue were not met.
·They are now enrolled at Chambers School of Business and believe this is the right course for them. They have commenced studying the Certificate IV in Commercial Cookery and will continue with a Diploma of Hospitality Management. They believe their skills are better nourished at Chambers.
·They request a second chance to achieve their academic goals and return to India fully equip(ped) to commence their career.
·They hope to secure employment at a top restaurant in India and start their own kiosk one day.
·They apologise for causing any inconvenience to the department. Their intention of
applying for a student visa was genuine. They want to continue studying in Australia as a genuine student.
·The visa holder provided a written statement dated 21 March 2022, regarding why they selected hospitality as their field of study, why they changed education providers and their future plans. They also went into detail regarding the Tourism and Hospitality industry in India.
The Tribunal accepts that the applicant has since the cancellation of the visa not been working or studying. The applicant’s evidence at the hearing was consistent with those reasons save that she was no longer enrolled in the Certificate IV in Commercial Cookery at Chambers School of Business, but she confirmed that if the cancellation was set aside she would re-enrol in that course and complete it and undertake a Diploma of Hospitality Management in accordance with her previous study plans.
While the applicant claims that it was not her intention to mislead the Department, the contents of her application were incorrect regarding that she was not employed as at the date of the application and notwithstanding her agent had prepared the application and she was responsible for its contents for the purpose pursuant to s.98 of the Act.
The circumstances regarding the preparation of the application do not excuse the applicant of incorrectly informing the Department that she was unemployed as at the date of the application.
Assessment of factors
The Tribunal has assessed the applicant’s Response, the GTE Statement, the supporting documents to the Department and the Tribunal, her evidence and all the prescribed circumstances as set out in reg 2.41 as follows:
(a) The correct information
As discussed above the applicant had provided the correct information when she lodged the application, as she was not employed as at the date of the application, but claimed in the application she was employed at Hotel KLG.
As discussed above the applicant in the application provided incorrect information. She claims that her migration agent made an error with the application but the Tribunal does not accept that is a valid excuse, especially having regard to s. 98 of the Act. The applicant claimed that her employment with Hotel KLG ceased around 6 to 10 August 2021 but the date of her visa application was 13 September 2021. She claimed she resigned from her employment for the purpose of study. While the duration of the period of her employment was not long, it still is significant.
For the reasons set out above, the Tribunal does not accept that those matters provide a reasonable excuse for the incorrect information contained in the visa application.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
(b) The content of the genuine document (if any)
The content of a genuine document is no longer in issue in this matter, as the issue of non-compliance relates to incorrect information in a visa application. While there is some issue regarding the content of the 10 August letter which was erroneous as to her position and duties and was provided with the Response, it does not appear to have been relied upon and her employer has apologised for its issue. The letter appears to have been provided to the delegate in attempt to make full disclosure.
The Tribunal gives this consideration marginal weight in favour of cancelling the visa.
(c) Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant provided incorrect information regarding her employment status and her employment details with Hotel KLG.
The Tribunal notes that in assessing the applicant’s eligibility for the student visa, one of the requirements the delegate assessed was whether the applicant satisfied cl 500.212, as to whether she was a genuine applicant for entry and stay as a student.
In making that assessment as to whether the applicant is a genuine temporary entrant, the applicant’s circumstances as a whole would need to be considered to determine that this requirement is satisfied. In assessing those matters, regard is had to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The decision maker will have regard to a number of circumstances including:
a.the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
b.the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
c.if the applicant is a minor, the intentions of a parent, legal guardian, or spouse of the applicant; and
d.any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
Accordingly, the decision maker will consider the applicant’s circumstances and whether she satisfies the primary criteria for the grant of student visa including her circumstances in her home country in particular her employment. Importantly the Department relies on the truthfulness of the applicant’s responses in the application and it is not possible for the Department to verify every response in the application. If the correct information had been disclosed, that she was unemployed at the time of the application, it is likely that it would have resulted in the Department undertaking further scrutiny of her application.
Plainly had the correct information been known at the time of assessing the application and making the decision it may have resulted in the delegate making a different assessment and decision having regard to all of her circumstances.
However even if the delegate made further enquires, then considering the applicant’s circumstances of being employed for 4 years prior to the visa application and that that she only became unemployed approximately 1 month before making the visa application and that she left her job for the purposes of undertaking study, then the prospects of the delegate necessarily coming to a materially different assessment were low.
Accordingly, the Tribunal gives this consideration marginal weight against the cancellation of the visa.
(d) The circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant did not inform the Department of not being employed.
As discussed above, especially at paragraphs 22 to 29 above and in evidence, she claims that the non-compliance occurred because her migration agent gave inaccurate information about her employment status at the time the application was submitted. Essentially, she claims that the non-compliance was inadvertent.
However, the responsibility in ensuring the application has correct information rests with the applicant and an error by the agent does not offer a reasonable excuse having regard to the operation of s.98 of the Act.
While the Tribunal appreciates that her resignation from employment around 6 to 10 August 2021 and the date of the application being 13 September 2021 are proximate, it does not excuse the incorrect information on the visa application. Prudently the applicant should have checked the visa application prior to its filing.
As discussed above the Tribunal accepts that there has been non-compliance as set out in the NOICC.
Accordingly, the Tribunal does not accept that the provision of the visa application form with incorrect information was due to circumstances beyond her control.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
(e) The present circumstances of the visa holder
The applicant arrived in Australia in December 2021 on a student visa to undertake the LCB Courses. She gave evidence that she missed orientation due to sustaining COVID-19 symptoms and struggled with the commencement of her studies there. She claimed that she felt alone. She changed her education provider to Chambers School of Business and enrolled in the Chambers courses.
The applicant outlined in evidence that there was a substantial difference in cost between the courses. The total cost of the LCB Courses was approximately $40,000. Whereas the cost of the Chambers Courses was more moderate. The COEs provided for the Chambers Courses reveal that the tuition fees for the Chambers Courses were $17,700.
Importantly that the applicant had enrolled in the Chambers Courses on 8 February 2022, shortly after commencing the LCB Courses and it appears that the reasons for the change in education provider were genuine.
The applicant gave evidence that she had studied from 9 February 2022 to end of March 2022 when her visa was cancelled. The applicant claims that she had completed 5 units and she had another 14-15 units to study, plus practical placements to complete the Certificate IV course.
The applicant gave evidence that she wanted to complete those studies here in Australia, with a view of returning back to India to work in her dream job as a chef.

The applicant lost all work and study rights on the cancellation of the visa. During that time she has been staying at home, and was undertaking practical research and cooking studies online with searches on Google. The applicant claims that she is not in paid employment but volunteers at the Sikh Temple. She claimed in evidence she works there 3 days per week , washing dishes, assisting in food services and cleaning.
The applicant provided a reference letter from Sri Guru Singh Sabha (The Sikh Cultural Society of Victoria Inc) dated 19 June 2022 which confirmed her volunteering at the temple regularly providing cleaning services at the temple.
The applicant has been supported here financially by her family. She gave evidence that she has made friends here.
The Tribunal notes that if her visa is cancelled, the applicant would no longer hold a visa to lawfully reside and study in Australia. The Tribunal notes that this would cause her both emotional hardship and financial hardship as she would no longer be permitted to study towards an educational qualification in Australia as she had desired, and planned to complete, so as to become a chef.
Furthermore, it would mean her returning to India in circumstances before she could complete her studies, in particular the Certificate III of Commercial Cookery at Chambers School of Business which she had part completed at a significant cost.
It would cause financial hardship, in that the tuition fees that her family had paid for the Certificate III would be lost. If the visa is cancelled, he will be unable to complete her studies or return to employment.
The cancellation of the visa on 24 March 2022, has caused her hardship as she has been unable to study and work, and she has been supported here by her family.
The Tribunal accepts that taking away the applicant’s opportunity to complete her studies here will be detrimental to her and her career.
The Tribunal accepts that the applicant has established significant ties to Australia with her study, volunteering at the temple and the friends she has made over the last 10 months, which would be severed by the cancellation.
The Tribunal gives this consideration significant weight against cancelling the visa.
(f) The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence before the Tribunal that would suggest the applicant’s behaviour does not accord with her obligations under Subdivision C of Division 3 of Part 2 of the Act. She has been compliant through the cancellation process.
The Tribunal gives this consideration marginal weight against cancelling the visa.
(g) Any other instances of non-compliance by the visa holder known to the Minister
The Decision Record does not indicate there are other instances of non-compliance by the applicant.
The Tribunal gives this consideration marginal weight against cancelling the visa.
(h) The time that has elapsed since the non-compliance
The non-compliance occurred when the applicant made the application with the incorrect information on 13 September 2021, more than one year ago.
The Tribunal considers that a period of just over one year has lapsed since the non-compliance which is significant. She has connections and ties here through volunteer work, and study and friendships developed, prior to the cancellation of the visa.
The Tribunal gives this consideration some weight against cancelling the visa.
(j) Any breaches of the law since the non-compliance and the seriousness of those breaches
The Decision Record confirmed that there was no information before the delegate to indicate the applicant has breached any laws since the non-compliance occurred. There is no evidence before the Tribunal to suggest otherwise.
The Tribunal gives this consideration some weight against cancelling the visa.
(k) Any contribution made by the holder to the community
The applicant both in evidence and by the letter from Sri Guru Singh Sabha (The Sikh Cultural Society of Victoria Inc) dated 19 June 2022 performed volunteer work and services for the temple to help those less fortunate. The applicant confirmed while her visa has been cancelled she had worked there 3 days per week as a volunteer.
She has also undertaken studies, paying tuition fees which contribute to the Australian economy.
These matters establish that she has made contributions to the community, and the Tribunal considers especially having regard to the volunteer work that such contribution to the community has been significant.
The Tribunal gives this consideration significant weight against cancelling the visa.
Other matters
In making its assessment of the applicant’s evidence, the Response and the applicant’s application, the Tribunal has considered the following other relevant matters:
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
The applicant obtained a visa on her own and there are no dependents to her visa.
The Tribunal finds that if it decides to cancel the visa, it will not result in the consequential cancellation of any other person’s visa pursuant to s 140 of the Act.
Therefore, the Tribunal gives this consideration no weight in favour of or against cancelling the visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
The applicant has not applied for protection nor made any claims that returning to her home country would result in significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations, if the visa were to be cancelled and the applicant had to return to her home country.

100. The policy guidelines require an assessment as to whether Australia would be in breach of its international obligations including the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).
101. There is no evidence before the Tribunal to indicate that the applicant has any minor children in Australia whose interests may be adversely affected if the Tribunal decides to cancel the visa.
102. In such circumstances the Tribunal does not consider that cancelling the visa would potentially result in a breach of Australia’s obligations under the CROC or the ICCPR.
103. In all those circumstances, the Tribunal is satisfied that cancelling the visa would not potentially lead to the applicant being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention, or in breach of the Refugee Protocol.
104. Accordingly, the Tribunal gives this consideration no weight in favour of or against cancelling the visa.
Whether there are mandatory legal consequences to a cancellation decision
105. A visa cancellation may result in the applicant being detained under s 189 and liable to be removed from Australia under s 198 of the Act as she would no longer hold a valid visa.
106. If the Tribunal decides to cancel the visa, as a citizen of India it would be open to the applicant to return to that country, to mitigate the possibility of being placed in immigration detention. In such circumstances the Tribunal does not consider there is potential for the applicant to be detained indefinitely.
107. Further the applicant may be subject to s 48 of the Act preventing her from applying for further visas while in Australia and she is likely to be affected by PIC 4013 limiting the granting of a further temporary visa for a specified period.
108. While these matters impose substantive legal consequences that flow upon the cancellation of the visa, the Tribunal notes that is the effect of both the legislation and regulatory framework that has been enacted and put in place.
109. The Tribunal gives this consideration marginal weight against cancelling the visa.
Any other relevant matters
110. The Tribunal is not aware of any other relevant matters to be considered.
Conclusion
111. 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
112. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Michael Biviano
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
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.

[2020] AATA 6213

30 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction