Ranveer Kaur (Migration)

Ranveer Kaur (Migration) [2023] AATA 699 (16 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Ranveer Kaur
CASE NUMBER:  2206905
HOME AFFAIRS REFERENCE(S):          BCC2019/1553932
MEMBER:Amanda Mendes Da Costa
DATE:16 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 119 (Regional Sponsored Migration Scheme) visa.

Statement made on 16 February 2023 at 8.33am

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Migrant) (Class AN) visa – Subclass 119 (Regional Sponsored Migration Scheme) – incorrect information and bogus documents given with visa application – secondary applicant to husband’s primary application – married after husband’s application made and before it was granted – departmental investigations – applicant used cousin’s identity to marry her brother to facilitate grant of visa – maintenance of claimed identity and claim that documents were created by named person as part of plan to defraud family – second marriage and Australian citizen child – no appearance at hearing after multiple postponements for medical reasons – discretion to cancel visa – best interests of child – no evidence about husband’s intentions if visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(c), 101(b), 102(b), 103, 107, 109(1), 362B, 375A, 379A(5)
Migration Regulations 1994 (Cth), r 2.41
CASE
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 119 (Regional Sponsored Migration Scheme) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. The delegate was further satisfied that having regard to all the relevant circumstances the applicant’s visa should be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 8 September 2022 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 24 October 2022. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.
On 23 October 2022 the applicant emailed the Tribunal, requesting an adjournment of the hearing on the ground of ill health. The applicant provided a copy of a medical certificate dated 23 October 2022 and signed by Dr Ruwanki Seneratna. In the certificate, the doctor states that applicant will be unfit for interview from 23 October 2022 to 24 October 2022. The Tribunal granted the request for adjournment and advised the applicant (in writing) that it had rescheduled the hearing to 8 December 2022.
On 8 December 2022 the applicant sent an email to the Tribunal advising that she was unable to attend the hearing scheduled for that day as she was in the Emergency Department at hospital and would send the Tribunal a medical certificate regarding her condition as soon as possible. The applicant subsequently provided the Tribunal with a copy of a medical certificate signed by Dr Wendy Kam-Sieng Lim of the Dandenong Hospital, which states that the applicant has attended the Emergency Department at the hospital that day and is suffering from a ‘medical condition’ and will be unfit for work from 8 December 2022 to 9 December 2022.
On 9 December 2022 the Tribunal wrote to the applicant as follows:
… The Tribunal has fixed two hearings (a video and an in-person hearing) which you were unable to attend due to unspecified medical conditions.
The Tribunal proposes to proceed with the hearing early in the new year and is willing to accommodate your medical condition, if possible. If you would prefer a video hearing, this can be arranged, to enable you to participate in the hearing from home.
Please advise the Tribunal what is preventing you from participating in the hearing, including any relevant medical information and/or report.
You are requested to provide a response in writing by 23 December 2022.
The Tribunal notes the applicant did not respond to this letter.
On 17 January 2023 the Tribunal sent the applicant a further invitation for a hearing scheduled for 14 February 2023 at 1.30pm. On the morning of 14 February, the applicant made a further request for an adjournment of the hearing on the basis that her health was not good, and she was sending the Tribunal a medical certificate. Accompanying this request was a copy of a medical certificate signed by Dr Tony Le Lin at Monash Health, Clayton, with handwritten details regarding the applicant. This certificate is dated 14 February 2023 but the date of applicant’s attendance at hospital and the date of the commencement of her unfitness for work appears to have been altered from 14 February 2022 to 13 February 2023. The certificate states that the applicant is suffering from a “medical illness”. There is not further explanation given in the certificate about the nature of the applicant’s medical condition and how this would prevent her from attending the Tribunal hearing.
The applicant also provided copies of two drug prescriptions (dated 8 February 2023) for the applicant and an appointment confirmation for a radiological examination for the applicant on 7 March 2023.
In response, the Tribunal sent an email to the applicant, acknowledging receipt of the medical certificate but noting that some of the dates in the certificate had been altered. The Tribunal advised that it did not accept this certificate as valid.
The Tribunal further stated that it required a medical certificate detailing her medical condition, and how it would prevent her from attending a hearing for a duration of approximately 3.30 hours. The Tribunal informed the applicant that in the absence of this information, it was not prepared to post-pone the hearing fixed for that day.
The applicant did not provide any response to this request on 14 February 2023.
On 15 February 2023 the applicant provided the Tribunal with a copy of a medical certificate (dated 14 February 2023) by Dr Prashant Dabee, an emergency clinician at the Emergency Department of Monash Hospital. In the certificate, Dr Dabee states that the applicant attended the emergency department of Monash Hospital on 13 February 2023 and is suffering from a medical condition. The doctor further states that the applicant is unfit for work from 13 February 2023 to 16 February 2023. Doctor Dabee does not indicate the nature of the applicant’s medical condition and whether it prevents her from attending a Tribunal hearing.
The applicant did not appear before the Tribunal on 14 February 2023 at the scheduled time and place. Having regard to the above matters and having reviewed the Tribunal’s file, the Tribunal is satisfied that the applicant was properly invited to the hearing in accordance with s 379A(5).
The Tribunal considers that the applicant has been given sufficient opportunity to provide the Tribunal with information regarding her health and any medical condition or conditions which may have affected her ability to participate in the hearing. The Tribunal further notes that it offered the applicant either an in-person or video hearing, the latter enabling to her to participate from home. Despite its requests, the applicant has not provided any information regarding her health and/or medical conditions. Based on the evidence before it, the Tribunal does not consider that a further adjournment of the matter will secure the applicant’s attendance at a hearing.
In these circumstances and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
In making its decision, the Tribunal has considered the material in both the Departmental and Tribunal files. The Tribunal notes that the applicant provided a copy of the delegate’s decision to the Tribunal with the review application form. However, she has not provided the Tribunal with any information about her current personal circumstances, apart from that provided in support of her applications for adjournment of the Tribunal hearings.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The Tribunal has considered the validity of the NOICC. The Tribunal considers that the NOICC (dated 4 April 2022) is the valid notice for the purpose of s 107 and is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues, and that the delegate reached the necessary state of mind to engage s 107. Accordingly, the Tribunal finds that this notice issued under s 107 complied with the statutory requirements.
Section 375A certificates
The Tribunal notes that the Department has provided it with two certificates each issued pursuant to s.375A of the Act and dated 27 May 2022. The first certificate certifies that the disclosure, other than to the Tribunal of the information contained in TRIM reference number ADD2022/1129716, ADD2022/1129711, ADD2021/6940494, ADD2021/6917030, ADD2021/5804846, ADD2021/421130, ADD2020/3701208, ADD2020/3368700, OPD2022/105131, OPD2022/105242, and OPD2022/105328 of file number BCC2019/1553932 would be contrary to the public interest because it would disclose or enable a person to ascertain the existence or identity of, a confidential source of information.
The second certificate certifies that the disclosure, otherwise than to the Tribunal of the information contained in TRIM reference number ADD2020/3368742 of the file number BCC2019/1553932, would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal considers both certificates to be valid and accordingly, pursuant to s 375A it is not permitted to disclose the information covered by the certificates to the applicant. The Tribunal has considered the information referred to in the certificates.
Background
On 28 June 2012 Mr Manpreet Singh (date of Birth 15 January 1984) lodged an application for an Regional Sponsored Migration Scheme (RSMS) (subclass 119) visa. Included in the documents provided by Mr Singh was a copy of his passport[1] which declared that he was the son of Boota SINGH and Jaswinder KAUR.
[1] Document number G0809349
On 18 March 2013 Mr Singh advised the Department that he married the review applicant (date of birth 1 November 1980) and requested that she be added to the RSMS visa application. In support of this request Mr Singh provided the review applicant’s identity documents including a marriage certificate[2] and her passport[3]. At the request of the Department, Mr Singh provided the following documentation:
·Form 80 – Personal particulars for assessment including a character assessment.
·A Signed Form 1281 – Australian Values Statement.
·Government of India Income Tax Department card in the name of Ranveer KAUR.[4]
·Government of India Police Clearance Certificate, in the name of Ranveer KAUR, dated 19 March 2013.
·International English Language Testing System (IELTS) result for Ranveer KAUR, dated 5 April 2013.
[2] The marriage certificate shows the date of marriage between Manpreet Singh and Ranveer Kaur (date of birth 1 November 1980) was 9 December 2012 and that it was registered by the Register of Hindu Marriages on 7 January 2013.
[3] Document number K2173121
[4] Account number CMWPK5689M.
Based on the above information and after considering the relevant criteria for the grant of the visa, the review applicant was granted a RSMS visa on 20 May 2013.
Movement Records kept by the Department show that on 3 June 2013 the review applicant entered Australia as the holder of the RSMS subclass 119 visa. On her initial and subsequent incoming passenger cards (five in total) the applicant declared her name as Ranveer KAUR.
Departmental investigations conducted with the Indian Police Authority after the grant of the visa indicated that Ranveer KAUR is not the review applicant’s true name. The Indian Police Authority advised the Department that the review applicant’s true identity is Amandeep KAUR (Date of birth 5 May 1981) and that she is the daughter of Boota SINGH and that she had used the identity of her cousin, Ranveer KAUR (date of birth 1 November 1980) to marry her brother Manpreet SINGH, in order to facilitate the grant of the RSMS visa.
On 4 March 2022 the Indian Income Tax Department advised the Department that the review applicant had applied for and been granted a Permanent Account Number (PAN) card in 2010 (card reference BTOPK1782M) in the name of Amandeep KAUR (DOB: 5 May 1981).
Departmental officers considered that card was issued two years prior to the Government of India Income Tax department card in the name of Ranveer KAUR that the applicant claimed was issued to her in 2012. It appeared to Departmental officers that the photograph used by the applicant to apply for the PAN card in 2010 is the same as the photograph used by her in 2012 to obtain a new PAN card under the identity of Ranveer KAUR (DOB: 5 May 1981).
On 10 September 2020 the Department sent the applicant a Notice of Intention to Consider Cancellation (the first NOICC) of the visa. The Department invited the applicant to provide any response (in writing) to this notice within 14 calendar days after she was taken to have received the notice.
On 4 October 2020 the applicant provided the Department with a written response to the first NOICC, including.
·Submissions.
·Indian Police Clearance Certificate for Ranveer Kaur (DOB 1.11.80).
·Income Tax Department certificate for Ranveer Kaur (DOB 1.11.80).
·A copy of the bio-security page of the Australian passport for Avitaj Singh Brar (DOB 19.7.15).
·A copy of the Indian passport for Ranveer Kaur (DOB 1.11.80) with an expiry date of 22 May 2022.
·Bio-security page of the Indian passport for Kulbeer Singh Brar (DOB 13.1.91).
·Adult Proof of Age Card issued by the Queensland Government in the name of Ranveer Kaur (DOB 1.11.80).
·IELTS English language test results for Ranveer Kaur (DOB 1.11.80).
·Medicare card for the applicant valid until November 2020.
·Reference letter, Balwant Jandu, dated 4 October 2020.
The applicant’s response to the first NOIC may be summarised as follows:
·The applicant has not provided any information or documentation to the Department which is incorrect or bogus.
·Corruption in India is a significant problem and one which has undermined the rule of law and citizens access to justice in that country.
·The applicant is a 39-year-old woman who is a permanent resident of Australia and the mother of a five-year-old child, who is an Australian citizen. The applicant is married to Kulbeer Singh Brar.
·The attached documentation supports the applicant’s claimed identity.
·The applicant had bank accounts and other local identity documents that have since expired and discontinued because she has been living in Australia for several years.
·A First Information Report (FIR) was lodged by Ranvir Kour of Rajasthan, India with the backing of her uncle Jaswant Singh. A person with the identical name has been used as the complainant to put allegations against the applicant. A copy of Ranvir Kour’s National ID is attached.
·The applicant’s previous husband is Manpreet Singh (DOB 15 January 1984) but the FIR which has been lodged with the local police names Mandeep Singh. This was noted by the delegate in the first NOICC. This discrepancy clearly states that the complainant who lodged the complaint had no clear picture of the applicant’s family and the allegations have been fabricated.
·Jaswant Singh is using his money and influence in India to bribe the local police and Ranvir Kour to make false allegations against the applicant. These allegations have been provided by local police to the Department.
·Jaswant Singh also organised a paid media gathering to further impair the social image of the applicant and made allegations to pressure the local police to file an FIR in their favour.
·Jasvir Singh (brother of Ranvir Kour) who is a close aid of Jaswant Singh, used a fake Facebook account (using the name Kuljeet Kaur Dandiwal) to blackmail the applicant’s family in India by posting vulgar messages and “wrong pictures”. He also used photos of the applicant’s family (including her son) on various occasions.
·A complaint was made against Jasvir Singh to the Cyber Crime Investigation Cell of Punjab Police, following which he made an apology to the applicant and he deleted the fake account. He was also issued with a warning by the Cyber Crime Investigation Cell.
·The documents and information about her identity, which have been provided by the applicant to the Department, have been thoroughly checked by central agencies in India, including the Ministry of External Affairs and Taxation Office.
·The issue of a passport in India requires thorough checks and a visit of the police or a Passport officer to an applicant’s home to complete identity checks.
·The Central Ministries have higher authority as compared to the local agencies or the local police. There is an extremely high chance that through corruption, false complaints and favourable investigations can be organized locally as compared to central Ministries. There are numerous cases where the local police have manipulated facts for their own gain.
·The applicant and her husband are an integral part of the Australian community. She has been involved in local religious groups, have made many financial contributions to their local Sikh Temple in Keysborough, Victoria and have volunteered their time to serving free meals to those in need.
·The applicant and her husband have also contributed their time to charities including ‘Let’s Feed’ and have been involved in fundraising, tree plantation drives and food deliveries to the victims of Bushfires in regional Victoria.
·The applicant is the primary care giver for the couple’s son and is a member of local mum’s and kid’s groups. The applicant and her husband are intending to have a second child.
·The cancellation of the applicant’s visa will have adverse implications for her husband and son.

On 4 April 2022 the Department sent the applicant a further NOICC (the second NOICC) . The Department invited the applicant to provide any response (in writing) to this notice within 14 days after she was taken to have received the notice.
On 29 April 2022 the applicant provided the Department with a written response to the second NOICC, in which she attached a complaint made by her to the Director General of Police, Punjab, in which she states:
·an unknown person or persons have misused her photograph to fraudulently obtain a PAN card in her name;
·this person or persons have used the PAN card to manipulate the Department of Home Affairs in Australia and local police authorities; and
·these people are taking advantage of money and power to manipulate the local authorities in Punjab by forging her documents and misusing her photos.
In her response, the applicant refers the Tribunal to the Indian Supreme Court case of Baldev v Singh & Anor v State of Punjab[5], in which the following observations were made by the Court:
… FIR is not a substantive piece of evidence, it is only relevant in judging the veracity of a prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case.
[5] The Tribunal notes that no citation has been provided for this case.
The applicant further notes that the FIR lodged by Ranvir Kour is not a final judgment and the case is yet to be determined by the Judicial Department. The applicant and her family have hired lawyers to represent them in this matter.
The applicant provided the Department with a copy of a complaint (dated 14 April 2022) made by her to the Director General of the Punjab Police in India. In this complaint the applicant states:
I wish to complain against unknown person who misused my photograph to fraudulently prepare a PAN card.
I am complaining because this person has used this PAN CARD against me to fraud my identity and to manipulate the Department of home Affairs of Australia as well as local police authorities. They have registered a First Information Report against me with Punjab Police that is still under investigation by the Judicial authorities.
I recently learned of this problem, when I received an email from the Department of Home Affairs of Australia, and they received this information from the Punjab Police.
I am an Australian resident and a Non-Resident Indian (NRI) and these people are taking advantage of money and power to manipulate the local authorities by forging my documents and misusing my photos. They have previously misused my photograph to create a social media (Facebook) and contacted my friends and relatives. With this email I wish to formally lodge a complaint against that person …
The applicant provided the Tribunal with a copy of a passport containing the applicant’s name and issued in the name Ranveer Kaur together with a PAN card issued in the name Ranveer Kaur. The applicant also provided a copy of her son’s birth certificate and a Cyber Crime Investigation Report.
The Tribunal makes the following observations regarding the supporting documents provided by the applicant with her responses to the two NOICC:
·The Indian Police Clearance certificate, Income Tax Department certificate, bio-security page of the Indian passport, Adult Proof of Age Card issued by the Queensland Government, Medicare Card and IELTS English language test results have each been issued in the name Ranveer Kaur (DOB 1.11.80) and include a photograph of the applicant.
·The bio-security page of the passport for Kelbeer Singh Brar shows that he is an Indian citizen born 13 January 1991. His passport was issued on 10 January 2020 and is valid until 9 January 2030.
·The copy of the bio-security page of the applicant’s son’s passport shows that he is an Australian citizen who was born on 19 July 2015. The passport was issued on 8 January 2016 and is valid until 8 January 2021.
·In her written reference[6], Ms Ramanpreet Kaur states that she has known the applicant (who is her best friend) since 2018. She attests to the applicant’s involvement in a variety of community activities and her assistance to Ms Ramanpreet Kaur when she has been ill or in need.
·Mr Jandu is the Secretary of the Gurdwara Sri Guru Granth Sahib Temple in Keysborough. In his written reference[7], Mr Jandu states that the applicant and her husband have contributed financially to the Temple and have also participated in community services including preparing free meals for those in need during the Covid-19 pandemic. In his view, the applicant (whose date of birth is 1 November 1980) is a social worker who is always willing to help others.
·The birth certificate for the applicant’s son[8] show that he was born in Queensland 19 July 2015 and that his parents are Ranveer Kaur (mother) and Kulbeer Singh Brar (father).
·The Cyber Crime Investigation Report shows that in February 2019 Jagroop Singh of Chandigarh made a report to the Cyber Crime Investigation Cell, Chandigarh Police. The substance of the complaint was Kuljeet Kaur Dandiwal had posted wrong pictures and vulgar messages on Facebook about him.
[6] Undated.
[7] Dated 4 October 2020.
[8] Dated 28 October 2015.
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 (the second NOICC) was non-compliance with s 101(b), s 102(b) and s 103 of the Act in the following respects:
·The applicant completed a Form 80 – Personal particulars for assessment including a character assessment which lists the applicant’s names as Ranveer Kaur (DOB 1 November 1980); her relationship with her partner Manpreet Singh, her marriage to her partner Manpreet Singh on 9 December 2012 and her parent’s names as Joginder Singh (DOB 5 May 1952) and Gurwinder Kaur (DOB 15 June 1955).
·Information obtained by the Department indicates that the applicant’s actual name is Amandeep Kaur (DOB 5 May 1981) and that Manpreet Singh is her brother.
·Based on this information, the delegate reasonably suspected that the applicant had provided incorrect information in answer to questions in the application form regarding her identity, marriage and familial relationships: Section 101(b).
·The delegate was further satisfied that the applicant had signed a Form 1281 – Australian Values Statement as Ranveer Kaur and that this information was incorrect as her real name is Amandeep Kaur (DOB 5 May 1981): Section 101(b).
·The applicant indicated on five incoming passenger cards on each arrival into Australia[9] that her name is Ranveer Kaur (DOB 1 November 1980). This is contrary to information obtained by the Department that her real name is Amandeep Kaur (DOB 5 May 1981): Section 102(b).
·The Indian Taxation Office advised the Department that the applicant was issued with a Indian Department of Taxation PAN card in 2010 in the name Amandeep Kaur (DOB 5 May 1981), two years prior to the Income Tax Department Card the applicant claims was issued to her in 2012 in the name Ranveer Kaur (DOB 1 November 1990). The applicant’s real name is Amandeep Kaur (DOB 5 May 1981).
·Based on this information, the delegate reasonably suspected that the Indian passport, Indian Income Tax Department card, marriage certificate, Indian Police Clearance certificate and IELTS English language testing results in the name Ranveer Kaur (DOB 1 November 1990) were obtained because of a misleading statement about the applicant’s identity (whether made knowingly or not) and are therefore bogus documents pursuant to s 5(1)(c) of the Act: Section 103.
[9] These incoming passenger cars are dated 3 June 2013, 12 April 2014, 15 November 2014, 29 April 2015 and 26 May 2016.
The Tribunal accepts the second NOICC as the relevant s107 notice for the purpose of the cancellation of the applicant’s visa.
The Tribunal has considered the applicant’s claim that her true identity is Ranveer Kaur (date of birth 1 November 1980) and that the explanation for her photograph being used on the Indian Tax Department PAN Card issued to Amandeep Kaur in 2010 was part of a plan being orchestrated by Jaswant Singh and his associates to defraud her family of their ancestral lands in India.
The Tribunal notes that the material provided by the applicant in support of this claim as set out in paragraphs 34 and 36 of this decision.
However, the applicant has not explained how the use of her photograph on Amandeep’s PAN Card is connected to the scheme to obtain the applicant’s family’s land and that she has not provided a plausible and coherent account for the use of her identity. The Tribunal prefers the information provided by the Department as a result of its investigations with the Indian Police Authority after the grant of the applicant’s visa. The Tribunal accepts that the applicant’s true identity is Amandeep Kaur (date of birth 5 May 1981) and that she is the daughter of Boota Singh and Jaswinder Kaur. The Tribunal further accepts that the applicant used the identity of her cousin, Ranveer Kaur (date of birth 1 November 1980) to marry her brother Manpreet Singh in order to facilitate the grant of the visa.
The Tribunal has considered the applicant’s submission that local police authorities in India are prone to corruption, as an explanation for the complaints made against the applicant for her alleged use of the identity of Ranveer Kaur (date of birth 1 November 1980) to obtain documents in that name, including an Indian Tax Department PAN Card, Indian Police Clearance Certificate and Indian passport. However, the Tribunal accepts the information obtained by the Department regarding the applicant’s true identity.
Based on the above findings, the Tribunal is satisfied that there was non-compliance with s 101(b), s 102(b) and 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 r 2.41 of the Regulations. They are:
The correct information
The Tribunal accepts the Department’s information that the applicant’s real name is Amandeep Kaur (date of birth 5 May 1981) and that the information contained in the identity documentation provided to the Department in support of her visa application is incorrect.
The Tribunal has formed the view that the information provided by the applicant to the Department about her identity was deliberately misleading. The applicant claims that her real name is Ranveer Kaur (date of birth 1 November 1980) and that Manpreet Singh is not her brother and that Boota Singh and Jaswinder Kaur are not her parents. The Tribunal does not accept the applicant’s claim in this regard and finds that she was aware that her real identity is Amandeep Kaur (date of birth 5 May 1981) when the Form 80 -Personal Particulars for assessment, Form 1281 – Australian Values Statement and the incoming passenger cards submitted to the Department.
The content of the genuine document (if any)
The applicant claims that her correct identity is Ranveer Kaur (date of birth 1 November 1980). In relation to the Indian Tax Department PAN Card issued in 2010 in the name Amandeep Kaur (date of birth 5 May 1981), the applicant has submitted her photograph was misused without her authority on this document. The Tribunal is not persuaded that the applicant’s true identity is Ranveer Kaur (date of birth 1 November 1980) and accepts the Department’s information which indicates that her real identity is Amandeep Kaur (date of birth 5 May 1981).
The Tribunal finds that the applicant provided documents in support of her visa application which used an identity which was not her correct identity. These include:
·Indian Passport in the name of Ranveer Kaur.
·A Government of India Income Tax Department PAN Card in the name of Ranveer Kaur.
·A marriage certificate to Manpreet Kaur, in the name of Ranveer Kaur.
·A Government of India Police Clearance Certificate, in the name of Ranveer Kaur and dated 19 March 2013.
·An international English language Testing System (IELTS) result for Ranveer Kaur, dated 6 April 2013.
The Tribunal is satisfied that these documents are bogus documents as defined by s 5(1)(c) of the Act because they were obtained by a false or misleading statement about the applicant’s identity.
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 Tribunal accepts that the visa was granted to the applicant on the ground that she Ranveer Kaur (date of birth 1 November 1980) and was the spouse of Mr Manpreet Singh, the holder of a RSMS visa, the couple having married on 9 December 2012.
The Tribunal is of the view that if the correct information about the applicant’s identity was known, it is at least possible, and in the Tribunal’s view highly likely that the decision to grant the visa would have been affected. The Tribunal is therefore satisfied that the decision to grant the visa was based, at least partly, on incorrect information.
The circumstances in which the non-compliance occurred
The Tribunal accepts that the applicant applied for a Government of India Income Tax Department PAN Card, a Government of India Police Clearance certificate, a marriage certificate to Manpreet Kaur and an Indian passport, each in the name Ranveer Kaur (date of birth 1 November 1980) for the purpose of applying for a visa as the spouse of Manpreet Singh. The Tribunal is satisfied that the applicant was motivated in claiming an identity other than her own, in achieving a visa outcome for herself.
The actions taken by the applicant in achieving this outcome involved her in securing a false identity and documents based on that identity. The Tribunal considers these actions were deliberate and persistent.
The present circumstances of the visa holder
The applicant has been living in Australia since June 2016. Subsequent to her arrival in Australia she has partnered with Mr Kulbeer Singh Brar and the couple have a son born 19 July 2015. They live in Melbourne, where they are members of the Gurdwara Sri Guru Granth Temple. The applicant has made friends in Melbourne, including Ms Ramanpreet Kaur.
The Tribunal accepts that the applicant is a valued member of her friendship group and her local community and had indicated to the Department that she is committed to living in Australia where she wishes to raise her child.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of part 2 of the Act
The applicant’s claim that her real name is Ranveer Kaur date of birth 1 November 1980 and that she provided truthful information in the Form 80 – Personal particulars for assessment, Form 1281 – Australian Values Statement and incoming passenger cards. She further claims that the other documentation provided by her to the Department including the Government of India Income Tax Department PAN card in the name Ranveer Kaur, her Indian passport in the name Ranveer Kaur date of birth 1 November 1980 and her Indian Police Clearance certificate for Ranveer Kaur each contain truthful information regarding her identity.
The applicant claims that she provided truthful information in the NOICC responses.
Although the Tribunal does not accept these assertions, it is not aware of any adverse information in relation to the applicant’s behaviour under the above provisions.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is not aware of any other instances of non-compliance.
The time that has elapsed since the non-compliance
The form 80 – Personal particulars for assessment and Form 1281- Australian Values Statement are both dated 20 March 2013 and were provided by Mr Manpreet Singh to the Department (on behalf of the applicant) in support of her visa application. The applicant was granted the permanent visa 20 May 2013.
The Tribunal accepts that the applicant indicated on five incoming passenger cards on each arrival in Australia, the last being on 26 May 2016 that her name is Ranvir Kaur date of birth 1 November 1980. Therefore, over six years have elapsed since the last instance of non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant provided the Department with a copy of the birth certificate for her son which shows that he was born on 19 July 2015 and that his mother is Ranveer Kaur date of birth 1 November 1980. However, the Tribunal does not have information about the person who provided the information to the Registry of Births, Deaths and Marriages, Queensland. Therefore, the Tribunal is not in a position to make a finding that the applicant provided false and misleading information to the Registry about her identity.
Any contribution made by the holder to the community
The Tribunal accepts that the applicant is a member of the Gurdwara Sri Guru Granth Sahib Temple in Keysborough and that she and her husband have made a financial contribution to the Temple and have also participated in community services such as preparing free meals for those in need. The applicant also provides assistance to her friends (including Ms Ramanpreet Kaur) and their families. The Tribunal accepts that the applicant contributes to the community through these activities.
Whether there are mandatory legal consequences
If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid vis application for certain visas without the Minister’s intervention but may be subject to an exclusion period. There is no suggestion that the applicant will be indefinitely detained.
Whether there would be consequential cancellations under s140 of the Act
There is no evidence before the Tribunal that if there would be any consequent cancellations under s 140 of the Act if the applicant’s visa is cancelled.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child
The Tribunal acknowledges that the applicant has a son who was born in Australia and is now seven years of age. At the date of the response to the second NOICC the applicant had a partner (Mr Kulbeer Singh Brar) who is an Indian citizen. There is no evidence before the Tribunal which indicates whether Mr Singh is an Australian citizen.
The Tribunal accepts that if the applicant’s visa is cancelled and she leaves Australia, she will be required to make a decision about whether her son will travel with her, which will cause a huge upheaval in his life and that of the applicant and her partner. The Tribunal acknowledges that the child was born in Australia and is presumably living with his mother and attending school here. The Tribunal accepts that relocating and changing schools is likely to cause him to experience some difficulties in adapting to a new environment.

Although there is no evidence before the Tribunal about Mr Singh’s intentions if the applicant’s visa is cancelled and she leaves Australia, the Tribunal is also mindful that it would be in the best interests of the applicant’s son for him to live with and be cared for by both parents.
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.
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 be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 119 (Regional Sponsored Migration Scheme) visa.
Amanda Mendes Da Costa
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.
102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2023] AATA 699

16 February 2023

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