Safoura (Migration)

This matter concerned the cancellation of a Student (Temporary) (Class TU) visa, subclass 500, held by the applicant, Safoura. The Department of Home Affairs had initiated cancellation proceedings based on allegations that the applicant had provided incorrect information and a bogus document in her visa application, specifically concerning her education history. The applicant had claimed to have completed a Certificate III in Commercial Cookery from the Institute of Advancing Careers (IAC) between April 2019 and April 2020, submitting a certificate and record of results purportedly issued on 20 April 2020. However, integrity checks revealed that the IAC was suspended for most of the claimed study period and was not issuing certificates during that time.

The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had failed to comply with the provisions of the Migration Act 1958 (Cth), specifically sections 101(b) and 103, as particularised in the notice issued under section 107. The Tribunal also had to consider whether, if non-compliance was established, the discretion to cancel the visa under section 109(1) should be exercised. The applicant argued that any incorrect information provided was not deliberate but negligent or recklessly indifferent, and that she had no opportunity to review the application before it was submitted by her agent.

The Tribunal found that the applicant had indeed provided incorrect information regarding her education history, as the IAC was suspended during the period she claimed to have studied and obtained her qualification. The submitted certificate and record of results were deemed bogus documents because they purported to have been issued during a period when the IAC was prohibited from issuing such documents. Despite the applicant's claims of agency and lack of direct knowledge, the Tribunal held that by instructing an agent to prepare and lodge her application, she created an agency relationship and was responsible for the information provided. The Tribunal also noted that the applicant's husband and children, who held visas as members of her family unit, would face consequential cancellation if her visa was cancelled.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa. While acknowledging the non-compliance with sections 101(b) and 103, the Tribunal exercised its discretion under section 109(1) not to cancel the visa. This decision was influenced by the significant hardship that cancellation would cause to the applicant and her family unit, including the consequential cancellation of her husband's and children's visas, for which there was no separate jurisdiction to review. The Tribunal gave weight to this factor against exercising its discretion to cancel.