Sahil Kumar (Migration)

[2023] AATA 4056

Sahil Kumar (Migration) [2023] AATA 4056 (14 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahil Kumar

CASE NUMBER:  2215131

HOME AFFAIRS REFERENCE(S):          BCC2022/898691

MEMBER:Rachel Westaway

DATE:14 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 November 2023 at 12:41pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had provided incorrect information in application –academic results were bogus documents – content of the genuine document is significantly different to the details provided by the applicant – applicant has not commenced his studies and does not hold an active Certificate of Enrolment – breached condition 8202 – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that applicant failed to comply with Section 103 of the Act. The applicant provided bogus documents. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was initially invited to a hearing on 26 September 2023 and requested the hearing be cancelled and provided a doctor’s certificate. A new hearing was scheduled for 4 October 2023 however the applicant did not attend. He provided no further information nor did he decline the hearing invitation and a decision has therefore been made on the material before the Tribunal.  

4. 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

5. 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.

6. 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.

7. 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.

   Background

8. The applicant is a 23-year-old male from India.

9. The applicant was granted a TU-500 visa on 16 April 2021.

   Tribunal Application

10. The applicant lodged their application for review on 14 October 2022 and provided the Notification Letter and Decision Record from the Department of Home Affairs, along with their Indian passport.

    Department of Home Affairs Application

11. On 28 September 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.

12. The applicant did not reply to the NOICC.

13. On 11 October 2022 the Department of Home Affairs notified the applicant of their decision to cancel his visa.

    Was there non-compliance as described in the s 107 notice?

14. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with section 103 of the Act in the following respects:

15. The applicant provided as part of his application for his student (subclass 500) visa a copy of his Provisional Character Certificate as evidence of his qualification in a Bachelor of Art from I.B. Post Graduate College in Haryana, India. The applicant provided the Tribunal with a copy of the Delegate’s decision which outlined the claimed non-compliance.

16. The Tribunal has considered the information before it, that after the grant of the visa, verification checks were undertaken by the Department with a representative of I.B. Post Graduate College. The representative identified that the applicant attended the college but that the provided documentation was non-genuine and not issued by I.B. Post Graduate College in Haryana as the information contained within the document did not accurately reflect their academic record.

17. As the applicant did not provide a response to the NOICC and did not attend the hearing to provide further information and that the only information before the Tribunal is confirmation from  I.B. Post Graduate College that the documentation was not issued by them because it did not accurately reflect his academic record, the Tribunal finds that on the evidence before it, the applicant provided documentation that was bogus.

18. For these reasons, the Tribunal finds that there was non-compliance with s 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

19. 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).

20. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations.

21. 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 correct information

22. The correct information as stated by I.B. Post Graduate College should be that the applicant attained marks of 1200/2400 and not 1452/2400.

23. The correct information was not provided. This is a significant issue which weighs in favour ofcancellation.

    the content of the genuine document (if any)

24. The correct information should have been the genuine and unaltered document which detailed the applicant’s correct academic results which were 1200/2400.

25. The content of the genuine document is significantly different to the details provided by the applicant and the Tribunal gives this consideration significant weight in favour of cancellation.

    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

26. The Tribunal finds that the assessment of the applicant’s previous academic results is central to the assessment of his eligibility for the subclass 500 student visa. The Tribunal finds that the decision to grant the subclass 500 visa was based, wholly or partly, on incorrect information relating to the applicant’s results at I.B. Post Graduate College. The Tribunal places significant weight on this consideration in favour of cancellation.

    the circumstances in which the non-compliance occurred

27. The applicant has provided no response to the NOICC and has not attended the Tribunal hearing to discuss the circumstances pertaining to the non-compliance. He has not denied that the documentation he provided was non-genuine or why it was provided.

28. The Tribunal can only assume that the applicant provided a non-genuine document presenting better marks than he has obtained to receive a favourable visa outcome and that this was an intentional action to mislead the Delegate.

29. The Tribunal places significant weight on this consideration in favour of cancellation.

    the present circumstances of the visa holder

30. The applicant is currently in Australia however has provided no information about where he is or what he is doing. He does not have work or study rights and his decision record indicates that he is single. He has no dependents on his visa.

31. There is limited information before the Tribunal pertaining to the applicant’s present circumstances. He has made no attempt to contact the Department or the Tribunal or engage in the Tribunal process to assist the Delegate or the Tribunal in understanding his present circumstances.

32. In the delegate’s decision provided to the Tribunal by the applicant, the Provider Registration and International Student Management System indicates that since arriving in Australia, the applicant has not commenced his studies and does not hold an active Certificate of Enrolment.

33. Given the limited information before the Tribunal but noting that the sole purpose of the visa was to study, the applicant has not commenced his studies. The Tribunal gives this consideration some weight in favour of cancellation.

    the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

34. There is nothing before the Tribunal to indicate any adverse matters pertaining to this consideration other than noting that the applicant did not responding to the NOICC or engage with the Tribunal and attend the hearing. The Tribunal affords this consideration neutral weight in regard to the cancellation of the applicant’s visa.

    any other instances of non-compliance by the visa holder known to the Minister

35. As outlined in the delegate’s decision, since arriving in Australia, the applicant has not commenced his studies and does not hold an active Certificate of Enrolment. Condition 8202 (2)(a) requires that the applicant is enrolled in a full-time registered course.

36. The Tribunal gives this consideration significant weight in favour of cancellation.

    the time that has elapsed since the non-compliance

37. The non-compliance occurred when the applicant applied for his visa on 20 February 2021. This was 2 years and 9 months ago. The Tribunal does not consider this a significant period of time and affords this consideration some weight in favour of cancelling the visa.

    any breaches of the law since the non-compliance and the seriousness of those breaches

38. There is no evidence before the Tribunal showing the applicant has been convicted of any other breaches of the law or sanctions imposed.

39. The Tribunal gives this some weight in favour of it not exercising its discretion to cancel the visa.

    any contribution made by the holder to the community.

40. There is no evidence before the Tribunal pertaining to this consideration and as such the Tribunal gives this consideration neutral weight regarding its discretion to cancel the visa.

    Whether there would be consequential cancellations under s 140

41. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled. Accordingly, the Tribunal gives this factor no weight in favour of its discretion to cancel the visa or in favour against cancellation of 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

42. If the applicant’s visa is cancelled, he will be an unlawful non-citizen and liable for detention under s 189 of the Act and removal under s 198 of the Act.  Under s 197C of the Act, for the purposes of removal under s 198 it is irrelevant whether Australia has non-refoulement obligations or whether there has been an assessment of Australia’s non-refoulement obligations. 

43. The applicant may be subject to s 48 of the Act preventing him from applying for further visas, he may not be permitted to work if granted a temporary visa for a specified period and he may be held in immigration detention.

44. Whilst these are all 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

45. 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. There is no suggestion that the interests of any children in Australia may be adversely affected by the visa cancellation.

46. 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

47. The applicant has provided no response to the NOICC and has not engaged with the Tribunal and as such there is no information about the hardship he may face if his visa is cancelled. The Tribunal however is cognisant that applying for a visa and relocating overseas to undertake study is expensive for many people and exciting. If the visa is cancelled the Tribunal accepts that there may be some financial hardship and emotional hardship that may arise from the cancellation of the visa. However, the applicant has provided no information relating to his own circumstances.

48. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.

    Conclusion on the exercise of the discretion

49. 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 103 of the Act.

50. The Tribunal acknowledges that over two years have passed since the non-compliance. The Tribunal accepts that there are no other known breaches of the law. These are factors that suggest that the visa should not be cancelled.

51. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was made based on information contained in a bogus document. because the applicant knowingly provided incorrect information in his visa application in order to remain in Australia. Further that at the time of the delegate’s decision the applicant was also in breach of condition 8202(2)(a) because he was not enrolled in a registered course.

52. As the applicant failed to attend the hearing the Tribunal and did not response to the NOICC the Tribunal is not aware of any contribution to the community he may have made since the delegate’s decision nor of the hardship he may experience if the visa is cancelled.

53. There are no consequential cancellations. The Tribunal accepts that if the applicant’svisa is cancelled, and unless he is granted another visa, he may be subject to detention, although he may be eligible to apply for othervisas.

54. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.  

55. 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

56. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Rachel Westaway
    Senior 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.

    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.