Safoura (Migration)

Safoura (Migration) [2023] AATA 788 (2 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Safoura
Mr Abdul Kareem Mohammed
Master Abdul Ahad Mohammed
Miss Humaira Mohammed
REPRESENTATIVE:  Mr Shoaib Vahora (MARN: 0848555)
CASE NUMBER:  2205378
HOME AFFAIRS REFERENCE(S):          BCC2021/2361353
MEMBER:Christine Kannis
DATE:2 April 2023
PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 02 April 2023 at 9:36am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information and bogus document given in visa application – education history – course and dates studied, certificate of completion and record of results – department’s integrity checks showed course provider suspended through most of claimed period of study and not issuing certificates on date given – qualification by recognition of prior learning before provider suspended – obtained through unregistered agent with no contact or study with college – no opportunity to check application before agent submitted it – signed declaration that all information true and correct – time constraints in responding to department’s notice – further completed courses – agent and provider investigated for fraudulent provision of non-genuine documents – applicant’s actions not deliberate, but negligent and recklessly indifferent – hardship if visa cancelled – members of family unit – consequential cancellation of husband’s and children’s visa with no jurisdiction to review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 99, 100, 101(b), 103, 109(1), 140(1), 359AA, 363, 375A
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadji (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 first named applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s 101(b) and s 103 of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicant appeared before the Tribunal by MS Teams video on 21 March 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
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. In making this determination the Tribunal notes that on 8 February 2022, the Department sent the applicant an email advising that it needed to send her important correspondence about her visa and requested that she provide her current address and email address. On 8 February 2022, the applicant replied by email and provided her current address and email address. The s 107 notice dated 15 February 2022 was sent to the applicant at the email address she provided.
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.
Background
In her Application for a Student Visa lodged on 9 March 2021, on page 13 under the heading Education history details, the applicant provided the following information:
Education history details
Give details of all past studies at secondary level and above.
Qualification: AQF Certificate III
Course name: Certificate III in Commercial Cookery
Institution name: Institute of Advancing Careers
Campus: Sydney
Date from: 15 Apr 2019
Date to: 20 Apr 2020
In her Application for a Student Visa lodged on 9 March 2021, on page 20, under the heading Declarations, the applicant provided the following answers:
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 detail on this form, and on any attachments to it.
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. Yes
In support of her application for the visa, the applicant submitted the following documentary evidence to support her claimed education history:
(i)Certificate of Completion issued by the Institute of Advancing Careers and dated 20 April 2020.
(ii)Record of Results issued in the name of ‘Safoura’ - (Certificate number: IAC200213) issued by the Institute of Advancing Careers and dated 20 April 2020.
(iii)A genuine temporary entrant statement in which the applicant said (in part): ‘(I) thought of studying this -course in a blended mode. So, I completed my “Certificate III in Commercial Cookery” from “Institute of Advancing Career” in April 2020’.
On the basis of the above information, as well as meeting all other relevant criteria, the applicant was granted a Student visa on 21 July 2021.
Following the grant of the Student visa, the Department conducted integrity checks and the following adverse information became available:
·The applicant did not complete a Certificate III in Commercial Cookery from the Institute of Advancing Careers (IAC) in April 2020 as claimed, and the academic transcripts she provided with her Student visa application in March 2021, were bogus.
This adverse information was based on information provided to the Department by the Australian Skills Quality Authority (ASQA) which confirmed the following regarding the IAC:
·The institute was suspended on 5 June 2019. As a result, the training organisation was prohibited from enrolling students in, and allowing students to begin, a suspended Vocational Education and Training course.
·This suspension was in effect from 12 June 2019 to 12 March 2020, and as such, the training organisation could not commence any courses or issue any completion certificates during this time.
·Since the lifting of its suspension, the Registered Training Organisation has not enrolled any students or issued any qualifications or statement of attainment during the period 13 March 2020 to 20 October 2020.
Given the adverse information, the non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101(b) and 103 of the Act in the following respects:
Alleged non-compliance with s 101(b)
Section 101 provides that visa applications are to be correct, and paragraph (b) specifically requires that no incorrect answers are given or provided.
The non-compliance identified as non-compliance with s 101(b) was:
- The applicant provided incorrect answers in her Application for a Student Visa when she:
(i)provided details on page 13 of the visa application form, under the heading Education history details, stating she had undertaken and completed a Certificate III in Commercial Cookery at the Institute of Advancing Careers from 15 April 2019 to 20 April 2020; and
(ii)declared that the information she provided was complete and correct information in every detail on the form, and on any attachments to it under the heading Declarations.
Section 99 of the Act provides that any information 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 s.101, paragraphs 101(b) and 102(b) and ss. 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.
Section 100 of the Act provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
The information was considered to be incorrect because information was received from ASQA that the IAC was suspended from 12 June 2019 to 12 March 2020 and could not commence any courses or issue any completion certificates during this time. Therefore, the information the applicant provided that she undertook study in the period from 15 April 2019 to 20 April 2020 was incorrect.
Alleged non-compliance with s 103
Section 103 provides that bogus documents are not to be given. A ‘bogus document’ is defined in s 5 (1) of the Act as a document 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.
The non-compliance identified as non-compliance with s 103 was:
- The applicant submitted the following bogus documents:
The documents were considered to be bogus because the Department received information that the IAC had not enrolled any students or issued any qualifications of statement of attainment during the period from 13 March 2020 to 20 October 2020. This information was inconsistent with the documents submitted by the applicant dated 20 April 2020. On this basis the Department reasonably suspected the documents to be counterfeit or had been altered by a person who did not have authority to do so, as they were not genuinely issued in respect of the applicant’s claimed education.
Response to the s 107 notice
On 1 March 2022, the applicant responded to the s 107 notice by a written submission from her representative which included the following relevant information:
- The applicant completed the Certificate III in Commercial Cookery by RPL (Recognition of Prior Learning) and the qualification was issued by the IAC based on the RPL.
- The applicant submits a statement from Unique Student Identifier (USI), which has the record of Authenticated Vocational Education and Training (VET) Transcript, to shows the outcome of the completion of each unit/module by RPL. The enrolment period on the statement indicates her enrolment was from 6 February 2019 to 20 February 2019 and not within the period when the institute was suspended.
·The applicant insists the qualifications were issued by the IAC, and due to the time constraints in responding to the NOICC, she could not pursue the professional services of a forensic document examiner to prove that the qualification documents provided are not bogus.
- The applicant admits she provided incorrect details about the duration of her Certificate III in Commercial Cookery course when she answered that she was enrolled in that course from 15 April 2019 to 20 April 2020. She claims she ‘committed an honest mistake’ and was confused, as the completion letter issued by the IAC, did not state the period of qualification.
- The applicant contacted the IAC via email on 23 February 2022, requesting confirmation that the qualification documents provided are genuine and authorised by the institute. The institute’s response states the applicant provided incorrect information to the Department in relation to the duration of qualification.
·The applicant lodged a Form 1023 notification of incorrect answer to the question about duration of her course.
·There are no other instances of non-compliances by the applicant.
·There are no breaches of the law since the non-compliance. The applicant and her family are law abiding non-citizens.
·The applicant contributes to the good values of the community by participating in volunteering in cooking and other events for non-profit organisations during the pandemic period.
·The applicant is trying to make her career in hospitality. She has completed her Certificate IV in Commercial Cookery and Diploma of Hospitality and Management. She will complete an Advanced Diploma of Hospitality and Management in November 2022.
The following documentation was also provided:
- Email to former education provider and response (dated 23 February 2022).
The applicant sent the following email to IAC Admin:
I Safoura (DOB) 26-01-1996 has received NOICC (Notice of Intention to Consider Cancellation) letter from the Department of Home Affairs based on the RPL Certificate III in Commercial Cookery received from your institute (Institute of Advancing Career - ABN 14 604 600 848).
Department of Home Affairs are considering that the attached documents as bogus.
Can you please confirm that the attached documents provided by you are genuine and authorised from your institution.
Furthermore, the enrolment date on USI portal and the document that you have provided doesn't match. Dates on USI are 06th Feb 2019 to 20th Feb 2019 and the Certificate was issued on 20th April 2020
Can you please correct this as well.
[9671102] CLD202211950454 - NOICC Response - NA,
Please find the attachments below of the above mentioned documents
I have limited time remaining to respond to the NOICC.
Please sort this issue as your earliest convenience.
And the education provider’s response email dated 23 February 2022, advising as follows:
Thank you for your email . The qualification is in our Student management System . However regarding your USI issue we have to investigate the whole matter and contact relevant authorities ( USI department and NCVER department ).
For your information, We have gone through your NOICC letter very well . You have provided wrong information to the immigration department . As your completion letter clearly mentions and explained you have got this qualification through Recognition of prior learning (RPL process) but you notified immigration different information ( please see the attached )
We will investigate the matter and contact you for further investigation if necessary .
- Form 1023 Notification of Incorrect Answer(s) dated 1 March 2022 in which the applicant stated that the incorrect information was “Dates from and to of the qualification of commercial cookery to be 15 April 2019 to 20 April 2020” and the correct information was “the qualification was completed by Recognition of Prior Learning”. At question 14, Why was incorrect information provided ?, the applicant stated, “Honest mistake that the applicant was new to the Australian education system and did not mention in the visa application that the qualification is by RPL”.
- Record of course transcript from Unique Student Identifier (dated 15 February 2022)-
- Certified copies of educational documents from Certificate of Completion and Record of Results dated 20 April 2020 from IAC (certification date 1 March 2022)
- Confirmation of Enrolment (CoE) for Advanced Diploma of Hospitality and Management from Australian Ideal College Pty Ltd (dated 8 November 2021)
- Undated letter on IAC letterhead stating the applicant had been assessed as completing a Certificate III in Commercial Cookery based on RPL.
- To Whom It May Concern letter dated 1 March 2022, from the Adelaide Mosque Islamic Society of South Australia Inc, which stated that the applicant is known within the community as an active volunteer, especially within her linguistic sub community groups. The letter stated that she is an active participant during these events and enjoys cooking for weekly events at the mosque.
· Undated To Whom It May Concern letter from FGRF advising:
I acknowledge that Mrs Safoura has been volunteering for community help specially during covid disaster.
She has helped FGRF to distribute food packs and have actively worked for community welfare on regular basis.
She has taken time out for this noble work from her busy schedule.
I appreciate her to actively participating in the events and being present whenever required
- CoE for an Advanced Diploma of Hospitality Management created on 1 March 2022. The course provider was Australian Ideal College Pty Ltd and the course dates were from 8 November 2021 to 6 November 2022.
Statement of Genuine Temporary Entrant document
The evidence before the Tribunal included Statement of Genuine Temporary Entrant document. This was provided to the Department by the applicant in support of her application for a student visa. The document included the following statement:
(I) thought of studying this -course in a blended mode. So, I completed my “Certificate III in Commercial Cookery” from “Institute of Advancing Career” in April 2020.
Evidence provided prior to the hearing.
Prior to the hearing the applicant provided the following additional documents:
·Statement made by the applicant dated 28 November 2022 which was stated to be made to assist the Department in its investigations. The Statement included the following information:
oShe initially enrolled in a Master of Information Technology in 2019 however she completed one semester only because she was pregnant and took 6 months maternity leave.
oShe changed her study to a Certificate III in Commercial Cookery at Salford College based in Adelaide and started online from study from Sydney.
oShe sought assistance from Rizwan Kahn Muzammil at HBD Services to apply for a Tourist visa for her mother-in-law. Mr Muzammil said he was a migration agent and he showed her other people’s visa applications he had successfully obtained. The HBD Services signage stated that the business provided visa application services.
oShe commenced a 2 year Commercial Cookery course package with Salford College in June 2020. She went back to Mr Muzammil to apply for another Tourist visa for her mother-in-law and he told her she could apply for a RPL certificate because she has experience in hospitality which would save her one year of study and tuition fees.
oShe did not know what about RPL and Mr Muzammil asked her for documents to show her experience and said he would apply for RPL certificate through a college. At no time did she have contact with the IAC and she did not undertake any study with them.
oShe paid Mr Muzammil $3,000 for his services. After 10 days he provided a soft copy of a certificate issued by the IAC on 1 July 2020. She collected a hard copy from him a few days later. There were 5 documents in total. The certificate had a stamp on it which she believed to be authentic.
oShe did not have any contact with the IAC until she received the NOICC.
oShe gave a copy of the documentation to Salford College and they said they would refer it to the IAC to obtain her credit for her Commercial Cookery course. Within a week Salford College advised she had been given the credit.
oShe then had to move to Adelaide to commence her Certificate IV in Commercial Cookery.
oIn April 2021 she returned to Mr Muzammil to renew her Student visa. She travelled to Sydney and went to his new business, Step Up Profession. The website and signs of the business say they provide visa services and education consulting.
oWhen she attended Step Up Profession, Mr Muzammil handed her file to an employee (Ritika) who asked for various documentation. Ritika completed her application form on a laptop and asked her for personal details and documents but did not ask her any additional questions to complete the form. She was not shown the form before it was sent to the Department. Ritika wrote her GTE statement and showed her the draft to review. She asked Ritika to make changes to the statement but she did not see the final GTE sent to the Department.
oMr Muzammil asked her for her ImmiAccount details. She did not know at the time that these details were private.
oShe kept asking Mr Muzammil when her visa application would be lodged but it was not done before her return to Adelaide. After her return Ritika sent her the Department receipt for payment on 9 March 2021 to show her application had been lodged. In July 2021, her visa was granted.
oIn December 2021, she went to a migration agency in Adelaide, Bajwa Immigration, to discuss her intention to apply for a work visa after completion of her course. She was advised that she needed 2 years of study time to be eligible and because her RPL qualification is not acceptable, she would have to complete her Advanced Diploma of Hospitality for one more year. This agent explained that a RPL certificate and an education certificate are different.
oWhen she received the NOICC she immediately contacted Mr Muzammil and he said it was an issue with the college and he would sort it out and that her visa would not be cancelled.
oAs the NOICC response date grew closer Mr Muzammil was not answering her calls and so she contacted another a migration agent, Geetu Sethi, on 18 February 2022. She provided detailed information about how she met Mr Muzammil, the RPL certificate and that he had asked for her ImmiAccount log in details. Ms Sethi told her the ImmiAccount was private and it was wrong for Mr Muzammil to have asked for the login details.
oShe signed a contract with Ms Sethi and she confirmed she would start working on the NOICC response. Ms Sethi sent an email to the IAC to verify the certificate but the college did not reply.
oShe kept calling Mr Muzammil and once he picked up the phone. She asked him why the IAC was not replying to Ms Sethi and he told her to contact the college as they would respond to a student. She emailed the college and on 23 February 2022 she received a reply that the certificate was genuine. Her migration agent told her that because of this reply, her visa would not be cancelled. She gave Ms Sethi the whole story about Mr Muzzammil and the RPL qualification and asked her to include the information in the NOICC response.
oAround 5 pm on 1 March 2022 (the last day to respond to the NOICC), she sent Ms Sethi a reminder to send her a draft of the submission so she could review it. After 2 hours she contacted Ms Sethi who advised she was working on the draft and would send it in a few minutes. Around 10 pm Ms Sethi called her and advised she had sent the NOICC response to her email. Ms Sethi said the response must be submitted to the Department before midnight and told her she must reply to the email saying the draft is okay to submit, otherwise she would not submit it.
oMs Sethi waited until the evening the NOICC response was due to send her the draft response. Given how late it was, she trusted what Ms Sethi had written. Ms Sethi did not include information about Mr Muzammil or that she did not lodge her visa application.
oMs Sethi will not respond to her calls and has abandoned her.
·A written statement dated 13 March 2023 made by the applicant, which included information which was not materially different from the information provided in the Statement dated 28 November 2022, and the additional following relevant information:
oHer visa application was lodged by an unregistered migration agent. He uploaded all the documents and she was not provided with any draft to review her application before it was submitted.
oShe did not know the RPL certificate was fraudulent until the Department cancelled her visa.
oShe believes Ms Sethi must provide the fraud activity of Mr Muzammil in the NOICC response.
oIf the Student visa cancellation decision is not set aside, it will affect her immigration status and life and this will further affect her plan to travel to any other country.
oIf the Student visa cancellation is not set aside, she and her family must depart Australia on a Bridging E visa, and the 3- year ban will affect their future or most temporary visa applications.
oShe had great hope for her Australian study and wishes to do something in her life. If her Student visa is cancelled, her life will not have any hope, and at an early age, she will lose all interest in living her future life.
oShe studied hard even though her Student visa was cancelled.
oShe studied hard after having two pregnancies in Australia and handling two small children.
oShe has a long life ahead and hope to build her career.
oThe cancellation of her Student visa will affect her life and family very severely in terms of financially and mentally.
oIf the visa cancellation is not set aside, all her past studies and time spent in Australia will be wasted.
oSince she arrived in Australia, she has respected Australian law and its people. She will continue to respect Australia and its people during her study period and be thankful.
oShe has never supplied any bogus documents or intend to supply any bogus documents to the Department and was unaware of the fraudulent /scam activity of the unregistered migration agent.
·Evidence of $3,000 payment on 17 June 2020
·Certificate IV in Commercial Cookery from Salford College and qualification letter and Transcript of Academic Record
·Diploma of Hospitality from Salford College and qualification letter and Transcript of Academic Record

Prior to the hearing, the representative provided a written submission which included information which was not materially different from the evidence provided by the applicant in her written statements dated 28 November 2022 and 13 March 2023, and the additional following relevant information:
·The applicant claims she was a victim of fraud by an unregistered migration agent who presented himself as a registered migration agent and acted for his financial benefit. She also doubts that the IAC is involved in mutual financial benefit with the agent in committing such scam/fraud.
·On 1 July 2020, Mr Muzammil sent her an electronic copy of the RPL certificate issued by the IAC through WhatsApp message.
·On 9 March 2021, Mr Muzammil lodged the applicant's Student visa application using her ImmiAccount and log in details.
- On 23 February 2022, the applicant emailed the college to inquire about the genuineness of the RPL certificate with specific information provided in NOICC.
- On 23 February 2022, the IAC replied. In the reply email, the college did not say it did not issue the RPL certificate however it informed the applicant that she provided incorrect information in her application as she got this qualification through RPL.
The representative requested the Tribunal to issue a summons pursuant to s 363 of the Act to investigate the conduct of the Registered Training Organisation and non-registered migration agent. The Tribunal notes that the decision to issue a summons is discretionary. In the present case the Tribunal declines to exercise the discretion. In making this determination the Tribunal has taken into account the information in the Department’s file which reveals that NSW Investigations received confirmation from the ASQA and the Office of the Student Identifiers Register (USI) that Australian education qualification certificates submitted with certain Student visa applications are bogus. These were purportedly issued by a number of registered training organisations (RTOs). One of these was Training Organisation Victoria Pty Ltd – which trades under two RTO names – Institute of Advancing Careers and Victorian College of Vocational Education. The Department’s file also revealed that an invitation had been made to - ‘Muzammil’ to attend a formal Record of Interview in relation to his involvement in the systemic procurement, creation and provision of a range of false documents and information to the Department for Student and Visitor visa cohorts.
Given the information in the Department’s file, the Tribunal accepts that it is likely Mr Muzzamil and the IAC were involved in the provision of non-genuine documents.
Evidence provided at hearing
The Tribunal put to the applicant that in her Application for a Student Visa she provided incorrect information regarding the course dates of the Certificate III in Commercial Cookery. In response, she conceded that she provided incorrect information but said she trusted Mr Muzzamil because he had previously successfully obtained a visa for her mother-in-law and a Birth Certificate for her child,
The Tribunal put to the applicant that the Certificate of Completion and the Record of Results were dated 20 April 2020, and that the Department received information that the IAC had not issued any qualifications or statement of attainment during the period from 13 March 2020 to 20 October 2020. In response, she said she did not believe the documents were non-genuine until she received the cancellation decision because, based on her experience up until that time, she had no reason to doubt Mr Muzzamil or the genuineness of the documents, which had been accepted by Salford College.
The applicant told the Tribunal that she did not have an opportunity to check the information in her Application for a Student Visa before it was lodged. She said when she asked Mr Muzzamil if she could check the draft he told her that it wasn’t completed, however he then lodged it without showing it to her.
The applicant told the Tribunal that when she received the s 107 notice she emailed the IAC on 23 February 2022 and they replied on the same day (see paragraph 27 above). The applicant told the Tribunal that Ms Sethi advised the reply confirmed that she had obtained the Certificate III in Commercial Cookery qualification and that the certificates issued were genuine. Noting the wording of the reply, the Tribunal put it to the applicant that the reply did not address the genuineness of the certificates. In response she said she trusted Ms Sethi’s advice.
The Tribunal noted that the Form 1023 was signed by the applicant on 1 March 2022 and included a declaration made by her that the information she provided on the form was true and correct in every detail. As noted, the Form 1023 stated that the incorrect information was the applicant’s honest mistake because she was new to the Australian education system. The Form 1023 did not refer to Mr Muzzamil including the incorrect information. In response the applicant conceded that she signed the declaration despite not agreeing with the reason for the incorrect information provided. She told the Tribunal that Ms Sethi told her that the incorrect course dates were a minor issue only and therefore the information about Mr Muzzamil was not required. She said Ms Sethi asked her to take the blame for the incorrect information and said that because she had given her ImmiAccount log in details to Mr Muzammil, it could not be proved that he provided the incorrect information. The applicant told the Tribunal she trusted Ms Sethi.
The applicant told the Tribunal that Ritiki from Step Up Profession drafted the GTE and although she requested some changes to the draft, she was not shown the final version before it was submitted to the Department.
The applicant told the Tribunal that she came to Australia with big hopes to study and to work before returning to India. She said she was a victim of fraud and trusted two migration agents. The applicant said if her visa is cancelled it will be a mark against her on her record and will affect her travel and employment. She said after she has worked in Australia she hopes to travel to Canada with her family however she may not be granted a visa if she has had an Australian visa cancelled based on the provision of bogus documents. She said other countries will not trust her with this on her record.
The applicant told the Tribunal that her husband has spent thousands of dollars on her education and their travel to and stay in Australia. She said if her visa is cancelled the financial cost will have been wasted. The Tribunal pointed out that she has obtained a Certificate IV in Commercial Cookery, a Diploma in Hospitality Management and an Advanced Diploma in Hospitality Management. She told the Tribunal she is currently employed in hospitality in aged care on a permanent part-time basis.
The applicant told the Tribunal her husband is employed in an administrative role. Their children are aged 3 years and 1.5 years. She does not intend to undertake any further study and if the cancellation decision is set aside, she will apply for a Subclass 485 visa.
The applicant said her volunteer work includes working with a mosque distributing food to the homeless and teaching children on Sunday. She also works with FGRF distributing food packs and plants.
The applicant told the Tribunal that she has been suffering significant emotional hardship since cancellation of her visa. She said she has experienced migraine headaches and sleep disruption. She said she needs to gain some work experience before she returns to India but she has only been working for 3 months.
The applicant told the Tribunal that if the cancellation decision is not set aside, her husband and their children will return to India with her.
The representative made the following submissions:
- The email dated 23 February from the Institute of Advancing Careers was silent on the certificate dated 20 April 2020,
- Once documents are lodged in an ImmiAccount it is not possible to access the content of the documents.
- The applicant signed the Form 1023 declaration because she blindly followed the migration agent’s advice.
- The applicant was not given sufficient time by the migration agent to verify the contents of the NOICC response and the Form 1023.
- The applicant has been interviewed by the Department in relation to Mr Muzzamil’s conduct and she has lodged a complaint with the Victorian Law Society against Ms Sethi.
Non-disclosure certificate
The Departmental file contained a s.375A certificate. This certificate prevents the Tribunal disclosing any document, matter or information referred to in the certificate as it would be contrary to the public interest. The Tribunal decided the certificate was valid. The Tribunal informed the applicant that the information protected by the certificate was information associated with an investigation operation by the Department that is related to the IAC. The reason disclosure of the information would be contrary to public interest was stated to because the information 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 decided the certificate was valid and invited the applicant to comment on the validity. She made no comment.
The Tribunal informed the applicant that although the s 375A certificate prevented release of the information by the Tribunal, it would provide the ‘gist’ of the adverse information the subject to the s 375A certificate relevant to her. Utilising the s 359AA procedure, the Tribunal informed her that the information directly related to the investigation into her purported study with IAC, also known as Training Organisation Victoria Pty Ltd. The Tribunal noted that this information was put to the applicant in the s 107 notice and formed part of the decision to cancel her visa. The Tribunal accepts that the Department undertook an investigation in the IAC and places weight on this information.
The Tribunal informed the applicant that all other information protected by the s 375A certificate related to the investigation into other education providers and other visa holders and could not be released to her.
Conclusion on non-compliance
On the evidence before it, the Tribunal finds that the applicant’s answers on her visa application form stating she had undertaken a Certificate III in Commercial Cookery course in the period 15 April 2019 to 20 April 2020 at the IAC were incorrect. The Tribunal places significant weight on the information provided to the Department by ASQA that the IAC was suspended from 12 June 2019 to 12 March 2020 . The Tribunal also places weight on the email dated 23 February 2022 from the IAC to the applicant which stated that she provided incorrect information that the duration of qualification was from 15 April 2019 to 20 April 2020.
Further non-compliance with s 101(b) of the Act was identified and particularised in the s 107 notice because the applicant answered Yes to the Declarations that she agreed to provide correct and up to date information. The information regarding her education history was incorrect information. The Tribunal further finds that by declaring that the information she provided was complete and correct information in every detail on the form and on any attachments to it, she provided an incorrect answer.
Accordingly, the applicant has not complied with s 101(b) as described in the s 107 notice.
The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers was done without her knowledge or consent. However, the Tribunal is of the view that by instructing an agent to prepare and lodge the application for her and paying the fees for the service, the applicant created an agency arrangement between herself and the agent preparing her application.
The Tribunal finds that the Certificate of Completion and Record of Results, both of which were dated 20 April 2020, are bogus document because they purport to have been issued on a date which was during a period that the IAC did not issue any qualifications or statement of attainment. The Department was advised that no qualifications or statement of attainment were issued between 13 March 2020 and 20 October 2020. Therefore, the Tribunal reasonably suspects that the documents are counterfeit or have been altered by a person who does not have authority to do so and finds it is a bogus document.
The Tribunal finds that documents are counterfeit within the meaning provided by paragraph (b) of section 5(1) of the Act.
Accordingly, the applicant has not complied with s 103 as described in the notice.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) and s 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response to the s 107 notice and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations).
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadji (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures 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 taken the reg 2.41 prescribed circumstances as well as any other relevant facts and matters, including the applicant’s responses to the s 107 notice into account when considering the discretion.
Prescribed circumstances
The correct information
The correct information is that the applicant did not undertake a Certificate III in Commercial Cookery at the Institute of Advancing Careers from 15 April 2019 to 20 April 2020.
The correct information was not provided. The Tribunal gives this some weight in favour of exercising its discretion to cancel the visa.
The content of the genuine document (if any)
This consideration does not apply in this case.
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
For the reasons set out above, the Tribunal has concluded that the decision to grant the visa was based partly on incorrect information and bogus documents. It is not necessary to establish that the visa would not have been granted if the correct information was known and bogus documents not provided. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on the incorrect information and bogus documents.
The Tribunal gives this factor weight in favour of its discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant’s explanation for the provision of the incorrect information was that she was the victim of fraud by an unregistered migration agent. She said he had previously successfully obtained a visa for her mother-in-law and her child’s Birth Certificate. Her reason for not providing this explanation in her response to the s 107 notice was that another migration agent did not give her sufficient time to review the response before submitting it to the Department.
The Tribunal finds the applicant’s submission that her original agent (Mr Muzzamil) provided the incorrect information problematic. The Tribunal is of the view that the applicant had the responsibility to learn what evidence was being submitted on her behalf. The applicant could have insisted that she the entire application before its lodgement and required the agent to provide a draft copy of the form. In the Tribunal’s view, it was her responsibility to do so to ensure that any information that was being submitted on her behalf was correct and accurate.
In relation to the bogus documents provided to the Department, the applicant told the Tribunal that she trusted Mr Muzzamil and had no reason to doubt the genuineness of the Certificate of Completion and Record of Results.
For the reasons set out above, the Tribunal is satisfied that the applicant provided incorrect answers on her visa application form and also provided bogus documents. The Tribunal finds that the applicant was negligent in her actions and recklessly indifferent in her dealings with Mr Muzammil and again in her dealings with her second agent, Ms Sethi.
The Tribunal accepts the applicant’s evidence that the non-compliance was not deliberate and that she was the victim of Mr Muzzamil’s fraudulent actions. Whilst it was the applicant’s responsibility to check documents submitted on her behalf to the Department, the Tribunal places weight on the circumstances in the present matter including the applicant’s prior dealings with Mr Muzzamil. The Tribunal also accepts that until receipt of the s 107 notice, there was nothing to alert the applicant that the Certificate of Completion and Record of Results were bogus documents.
The Tribunal gives this factor significant weight against exercising its discretion to cancel the visa.
The present circumstances of the visa holder
The applicant has been residing in Australia for just over 4 years, having arrived on 31 December 2018. She lives with her husband and their two children, both of whom were born in Australia.
The applicant told the Tribunal that she works on a part-time basis and she would like to gain some more work experience relevant to her qualifications before she returns to India. Following the hearing the applicant provided her Contract of Employment which indicates she commenced on 6 December 2022.
The Tribunal gives this some weight against exercising its discretion to cancel the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations. The Tribunal gives this consideration a little weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal gives this consideration a little weight against cancelling the visa.
The time that has elapsed since the non-compliance
The applicant was granted the visa on 21 July 2021 and provided the bogus documents and incorrect answers on her application form when she submitted her application to the Department on 9 March 2021. The Tribunal accepts that it is 2 years since the events of non-compliance occurred, however does not consider this to be a significant amount of time.
The Tribunal gives this factor some weight in favour of its discretion to cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any contribution made by the holder to the community
The applicant provided letters from the Adelaide Mosque Islamic Society of South Australia Inc and FGRF, both of which referred to her contribution to the community through her volunteer work with the organisations.

The Tribunal gives this consideration a little weight against cancelling the visa.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.
Other considerations
As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109.
Whether there would be consequential cancellations under s 140
The applicant’s husband and two children are secondary visa holders. Cancellation of the applicant’s visa means they will be subject to consequential visa cancellation of their visas, which were granted to them as members of the family unit of the applicant.
The Tribunal accepts that there would be consequential cancellations in this case. The Tribunal gives this factor some weight against exercising its discretion to cancel the visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s 189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a 3 year exclusion period unless he meets the relevant Public Interest Criterion. Whilst these are serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant is a citizen of India and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations. The Tribunal considers this factor neutral in the exercise of its discretion.
The Tribunal has considered article 3.1 of the Convention on the Rights of the Child (CRC) which states that the rights of the child is a primary consideration. At the same time the Tribunal has also considered the family unity principles under International Covenant on Civil and Political Rights (ICCPR).
There is no suggestion that if the cancellation were to remain, that the applicant and her children would be separated. The Tribunal considered whether to cancel or not cancel the applicant’s visa would be in the children’s best interests. Although it was not contended by the applicant, it may be that to not cancel the visa is in the children’s best interests however in the Tribunal’s view, the children’s interests would not be significantly affected due to the applicant’s evidence that she intends returning to India after she has gained some work experience in Australia..
The Tribunal, on balance, considers that any cancellation outcome would not result in a breach of Australia’s international obligations under the CRC or ICCPR.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
The applicant told the Tribunal that if her visa is cancelled the consequences will have a significant adverse impact financially and mentally. She said the money her husband has paid for them to travel to and stay in Australia and for her education, will be wasted if she is not also able to gain work experience in Australia. She said the qualifications alone will not be enough to set her up in a career when she returns to India. She did not elaborate on this.
The applicant said that her mental health has suffered as a result of the cancellation decision and she and her family will suffer more distress if their future travel is impacted by a mark on her record that she provided false information and bogus documents to the Department.
The Tribunal acknowledges that the cancellation of the applicant’s visa may cause some hardship to the applicant because she would not be able to complete her desired work experience in Australia.
The Tribunal gives this consideration some weight against cancellation.
Conclusion on the exercise of the discretion
The Tribunal has considered the factors identified by the legislation and policy. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101(b) and s 103 of the Act.
The Tribunal acknowledges that 2 years have has passed since the non-compliance. The Tribunal accepts that the applicant has no other breaches of the law and no criminal record.
The Tribunal accepts that if the applicant’svisa is cancelled, and unless she is granted another visa, she may be subject to detention, although the applicant may be eligible to apply for othervisas. The Tribunal accepts that if the applicant’s visa is cancelled, as a consequence the secondary visa applicants’ visas will be cancelled.

100. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.
101. The applicant’s non-compliance may cause her and her family financial and emotional hardship and, given the particular circumstances in which the non-compliance occurred in this case, the Tribunal considers this hardship outweighs her failure to check the entire application before its lodgement. In relation to the bogus documents, the Tribunal accepts that the applicant had no reason to doubt the genuineness of the documents. In making these determinations the Tribunal takes into account the applicant’s history with Mr Muzammil in relation to her mother-in-law’s visa and her child’s Birth Certificate. The Tribunal also takes into the signage/website information of Mr Muzammil’s businesses and that he was providing his migration services in Australia. The Tribunal further takes into account the applicant’s completion of all her courses in Australia and her contribution to the community through her voluntary work.
102. 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
103. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
104. The Tribunal has no jurisdiction with respect to the other applicants.
Christine Kannis
Member

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

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

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2023] AATA 788

2 April 2023

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