Shoyeb Ahmed (Migration)

[2020] AATA 2552

Shoyeb Ahmed (Migration) [2020] AATA 2552 (20 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shoyeb Ahmed

CASE NUMBER:  1934070

DIBP REFERENCE(S):  BCC2017/3863645

MEMBER:Michael Ison

DATE:20 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 May 2020 at 5:06pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – bogus document and incorrect information – financial support – bank education loan document not genuine – visa application completed and lodged by agent without applicant’s knowledge – claims of genuine loan from another bank and financial support from father – study history – poor results in first course and satisfactory progress in second – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 98, 99, 101, 103, 107, 109

Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 500.214

CASE

MIAC v Khadgi (2010) 190 FCR 248

Nguyen (Migration) [2019] AATA 4740

Nnadi (Migration) [2019] AATA 6329

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 Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

   Background

2. The applicant is Mr Shoyeb Ahmed who is a 29 year old Indian national. The applicant arrived in Australia on 28 September 2017 as the holder of a Student visa that was valid to 15 March 2020. The applicant originally came to Australia to study a Master of Science in Biotechnology at Swinburne University of Technology as he had completed a Bachelor of Pharmacy and worked as a pharmacist in India. The applicant did not successfully complete any units of that course and 16 months after his arrival in Australia, the applicant commenced a Master of Networking at Melbourne Institute of Technology in February 2019.  The applicant completed 6 of 12 units of the Masters course prior to his Student visa being cancelled on 27 November 2019.

3. The applicant currently holds a Bridging E (Subclass 050) visa which does not include the right to study. The applicant applied for a Bridging E visa with study rights, but that application was refused. This means the applicant has not been able to study since the cancellation of his visa by the delegate. On 2 December 2019 the applicant applied to the Tribunal to review the decision to cancel his visa.

   The primary decision

4. The applicant provided the Tribunal with a copy of the primary decision.

5. The delegate cancelled the visa on the basis that the applicant provided a bank education loan document as part of his visa application that was a bogus document in breach of s.103 of the Act and also provided incorrect answers on his visa application form where he gave details of the loan and declared he had access to sufficient funds in breach of s.101(b) of the Act.

6. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.

7. The applicant appeared before the Tribunal on 25 March 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

9. The applicant was represented in relation to the review by his registered migration agent. The representative participated in the Tribunal hearing by telephone.

10. The Tribunal received written submissions on behalf of the applicant both before and after the Tribunal hearing. Attached to these reasons as Attachment 1 is a list of submissions provided to the Tribunal by the applicant.

11. At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s decision. The Tribunal also explained the role of the interpreter as an aid to communication and the role of the applicant’s representative. The Tribunal asked the applicant if he had any objections to the interpreter retained to assist in the conduct of the hearing and the applicant responded that he did not. The Tribunal informed the applicant that it would allow both the applicant and his representative an opportunity to address the Tribunal toward the end of the hearing on any matter they felt was relevant to the applicant’s review.

12. The Tribunal has considered all of the information before it, including the evidence of the applicant, the written submissions from the applicant and the information on the Tribunal file and the Tribunal’s copy of the Department’s file.

13. 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

14. 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.

15. 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.

16. In the present matter, the s.107 notice was issued on 21 October 2019. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

17. 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.

18. The Tribunal explained to the applicant that s.101 of the Act requires visa applicants to ensure no incorrect answers are given or provided in their visa application form, s.99 provides that any information given in relation to a visa application is considered to be an answer to a question in the visa applicant’s application form, s.103 provides that a visa holder must not provide a bogus document or cause such a document to be provided to the Minister or others and s.5 defines bogus document as a document the Minister reasonably suspects:

    a)purports to have been, but was not, issued in respect of the person;

    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.

19. The non-compliances were identified and particularised in the s.107 notice as non-compliances with ss.101(b) and 103 of the Act in the following manner:

    The Department is aware of visa fraud involving visa holders and applicants who provide bogus Bank Education Loan documents. Validation checks undertaken by the Department following the grant of your visa have found that the Education Loan Document which you provided in support of your application is fraudulent. The Department was advised by the State Bank of India that the Bank Manager who signed your document had already left the Jillellaguda Branch at the time that your document was dated, that the Reference Number on the letter does not follow the usual coding and that the phone number on the letter head, although it belongs to the bank, is a fax number and is hardly used as a fixed land line number for calls. Furthermore the State Bank of India verified that they did not issue you this letter.

    As a result I consider that the Bank Education Loan document submitted in support of your Student visa application is counterfeit (as per section 5(1)(b) of the Act).

    It appears that this document has been fabricated for the purpose of meeting the criteria for the approval of a Student visa and indicates that you did not have access to sufficient funds to support your total stay in Australia.

    Non-compliance with section 101(b)

    I consider you provided an incorrect answer in your application for a Student visa when you stated on page seven of the form ‘Application fora Student Visa’ that you have financial support from an individual. On page fifteen and sixteen of the form you answered ‘yes’ to the Student Declaration, where you stated that you have access to sufficient funds to support yourself for the total period of stay in Australia.

    As the document relating to your claimed financial situation is bogus, I consider that you did not have sufficient funds to support your stay.

    By answering ‘yes’ on the Declation section (pages 15, 16 and 17) you agreed to provide, correct and up-to-date information in your application. However, it appears you did not do so.

    I consider you have not complied with section 101(b) of the Act, and as such your current Student visa is liable for cancellation consideration under section 109 of the Act.

    Non-compliance with Section 103

    I consider you have not complied with section 103 of the Act because in support of your application for a Student visa you submitted the following bogus document:

    ·Bank Education Loan document, Letter of sanction to the borrower, from State Bank of India dated 23 June 2017.

    The document is considered bogus within the meaning of s 5(1)(b) of the Act which states:

    Bogus document

    bogus document in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (b) is counterfeit or has been altered by a person who does not have authority to do so

    It appears this document was submitted to the Department to evidence that you met the relevant criteria for a Student visa, namely that you had sufficient access to funds to cover your entire stay in Australia, as per the requirements specified in Regulation 500.214(2) of the Migration Regulations 1994 (the Migration Regulations)…

    (sic) (emphasis in original)

20. The Tribunal discussed these findings of the delegate with the applicant. The applicant’s evidence is that he engaged Shah Overseas Education Consultants (SOEC) who completed his visa application form and submitted it and all supporting documents to the Department in 2017.

21. The applicant’s evidence is he provided SOEC with loan documents from the Andhra Bank in India for an education loan for 18 Lakhs[1] initially approved on 31 May 2016 and then renewed on 16 June 2017 when the applicant sought enrolment at Swinburne University of Technology. The applicant provided the Tribunal with a copy of this loan documentation for both the initial loan on 31 May 2016 and the renewal of the loan on 16 June 2017. The applicant also provided the Tribunal with a copy of certificate of title and a valuation certificate for the land owned by his mother which was used as security for these loans.

    [1] At the time of this decision, one Australian dollar is equivalent to 48.81 Indian rupees (source: Reserve Bank of Australia internet website retrieved on 19 May 2020) meaning the loan from Andhra Bank was equivalent to approximately AUD36,878.

22. The applicant told the Tribunal he accepted that the State Bank of India loan documents were not genuine but said he did not provide these to the SOEC and did not know or authorise SOEC to provide these to the Department.  

23. In the applicant’s response dated 6 November 2019 to the s.107 notice, the applicant stated:

    In the [s.107 notice] I received, it was mentioned that I have provided an education loan worth 46000 AUD from State Bank of India which I came to know for the first time. I was shocked reading at the information, I discussed the same with my father who is a Teacher in India. As the information that the Immigration Department had on my file is in correct, I immediately called to my education agent who processed my student visa to Australia. Though the agent in India has responded to my telephone call, after I encountered him with the adverse information on my student visa regarding the financial documents provided, he hung up the phone on me and ever since then, he is not attending my phone calls or my father’s phone calls. My father even approached their office in Hyderabad which was previously in Somajiguda suburb when I was processing my student visa application and now got relocated to Abids in Hyderabad City and the response he got was the person who processed my application is no more working in the office and they do not have the information about the past files which has been finalised.

    …

    My father too has recently approached the State Bank of India – Jillellaguda branch which was mentioned in the information provided by you to cross verify whether have someone availed a loan, but the bank staff wasn’t co-operative as we have no documentation to show them. Through some reference from higher officials, we made sure that there is no loan availed from that branch and that information was been provided by my agent in India without my knowledge. (sic)

24. The applicant’s oral evidence was consistent with these submissions. The Tribunal finds that education loan document from the State Bank of India dated 23 June 2017 provided in support of the applicant’s visa application is a bogus document as that term is defined in s.5(1)(b) of the Act because the loan document is not a genuine document as it has not been issued by the State Bank of India in respect of the applicant and therefore is counterfeit or has been altered by a person who does not have authority to do so. Therefore, the Tribunal finds in submitting that loan document the applicant did not comply with s.103 of the Act.

25. The submission of bogus loan documentation in support of the applicant’s visa application causes the Tribunal to find that the applicant also did not comply with s.101(b) of the Act when on page seven of the application form for a Student visa the applicant stated he had financial support from an individual that was in the form of the bogus loan.

26. The Tribunal also finds that the following answers to the declarations on page 17 of the application form did not comply with s.101(b):

    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 any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.

    Yes

    Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may be subsequently cancelled.

    Yes

27. The Tribunal makes these findings because the applicant’s evidence is that he did not read or complete the application form, which was submitted electronically. According to the submission of the applicant’s representative dated 18 March 2020:

    It is a common practice in India that the agent does all aspects of work of the application on behalf of the client without letting the client informed. [Footnote deleted] His agent filled up the relevant section of the form regarding financial information and provides the evidence of financial capacity from State Bank of India to support the financial information. (sic)

28. The Tribunal finds that the applicant:

    ·did not read or understand the information in the application form such that his answer that he did was incorrect;

    ·by providing bogus bank loan documents with the application the applicant did not provide correct information; and

    ·in not having read or completed the application form the applicant’s positive answers to the last two declarations quoted were not correct.

29. For these reasons, the Tribunal finds that there was non-compliance with ss.101(b) and 103 of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

30. 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).

31. 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. Briefly, they are:

    ·         the correct information

    ·         the content of the genuine document (if any)

    ·         whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·         the circumstances in which the non-compliance occurred

    ·         the present circumstances of the visa holder

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

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

    ·         the time that has elapsed since the non-compliance

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

    ·         any contribution made by the holder to the community.

    Applicant’s response to the s.107 notice

32. The applicant responded to the Department’s s.107 notice on 6 November 2019 stating:

    I would like to bring to your kind attention that I never intend to provide any wrong or misleading information on my student visa application to the Immigration Department. My family is financially well settled, and my father as mentioned earlier is a government teacher having more than 30 years of experience. He has good savings and have always provided me the funds required to pay my tuition fee and living expenses in Australia. The misleading information was been provided only by my agent who is now not even giving me any response. … Despite having an educational loan approved, my father never encouraged me to use the money from the loan, instead he only provided me the required financials as taking money from the loan might give additional pressure for me to work more in order to clear it as soon as possible. My father always advised me to only focus on my education and not to worry about money as he have made enough investments for my education and settlement from a very long time. Like promised, he always paid my tuition fee and living expenses and in return I always focussed on my studies which reflected on my grades. I have so far enrolled in 6 subjects at Melbourne Institute of Technology and have scored Distinction in 5 subjects and a Higher Distinctions in the remaining Subject. In addition to this, I am also providing you my academic transcript from Melbourne Institute of Technology for the two semester results I received so far. I am providing the official transcript for the first semester and the unofficial transcript for the second semester as my results were released only last week and the education provider have not issued the official transcript yet. I have always focussed on my studies while in Australia as my intention is to progress well to the best of my abilities so that I gain more knowledge and skills from a developed country like Australia before I return to my home county India to settle down in my professional career. (sic) [footnote deleted]

1. This information was repeated in a statutory declaration declared by the applicant on 31 March 2020.

2. The applicant’s evidence is that he is the victim of a fraud perpetrated by SOEC, the education agent he retained in India. The Tribunal has considered this response in the conduct of this review as set out in these reasons below.

   The correct information

3. The correct information is that when the applicant applied for the Student visa he did not have an education loan from the State Bank of India contrary to the answers on his application for the Student visa.

4. As noted in the applicant’s response to the s.107 notice, the applicant’s evidence to the Tribunal at hearing was he had obtained a genuine loan from Andhra Bank and had given this documentation to SOEC to submit as part of his application.

5. Section 98 of the Act provides that an applicant for a visa who does not fill in their application form is taken to have done so if they cause it to be filled in or if it is otherwise filled in on the applicant’s behalf. This means that the applicant remains responsible for what was provided in the visa application form submitted on his behalf, even if that application form was completed by another person, such as an employee of SOEC, for and on the applicant’s behalf.

6. This leads the Tribunal to find that the applicant did not submit the correct information about his financial support as part of his visa application.

7. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it some weight.

   The content of the genuine document (if any)

8. The Department checked the validity of the loan document purported to be from the State Bank of India with the State Bank of India who confirmed it had not been issued by the Bank and was a bogus document. The Tribunal finds that there was no genuine loan document submitted when the applicant applied for the Student visa on 7 July 2017.

9. The applicant’s evidence to the Tribunal is that he had a genuine loan from the Andhra Bank but when completing and submitting his visa application SOEC did not submit this loan documentation and substituted the bogus documentation without the applicant’s knowledge. The Tribunal notes the applicant’s response to the s.107 notice that despite having a genuine education loan from the Andhra Bank, he has not had to draw on that loan because his father has had sufficient funds to pay the applicant’s costs in Australia including his course fees and living costs.

10. As noted in paragraph 37 of these reasons, under s.98 of the Act, when the applicant allows someone else to complete and submit a visa application on his behalf, it is deemed that the applicant submitted the information. The document the applicant claims to be genuine, being the loan documentation from Andhra Bank, was not submitted in support of the applicant’s application for the visa.

11. The Tribunal finds that the applicant did not have an education loan from the State Bank of India as claimed in his visa application and therefore the loan documentation provided was a bogus document and no genuine loan documentation was provided to the Department.

12. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    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

13. To be granted a Student visa an applicant must satisfy, amongst other requirements, that they have genuine access to sufficient funds to meet the costs and expenses of their stay in Australia per r.500.214(1) and (2).

14. In assessing the applicant’s visa application the delegate assessed the applicant as meeting this requirement based on the applicant having provided the education loan documentation from the State Bank of India.

15. As the applicant did not have an education loan from the State Bank of India at the time of his application for the visa, the grant of a Student visa was based in part on the bogus loan documentation provided as part of the applicant’s application and also on the incorrect answers in that form noted in paragraphs 26 to 28 of these reasons.

16. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    The circumstances in which the non-compliance occurred

17. The circumstances in which the bogus document and incorrect answers in the applicant’s application for the Student visa were provided to the Department are set out in paragraphs 23, 27 and 32 of these reasons.

18. The Tribunal noted to the applicant during the hearing that SOEC is not listed on his visa application form as his education agent. Instead a Mr Srinivas Vidiyala of Pupil Abroad is listed as the applicant’s education agent and authorised recipient of information from the Department on the applicant’s behalf.

19. The applicant told the Tribunal that he only ever dealt with Mr Shan Khan from SOEC in relation to his visa application and paid the equivalent of approximately AUD500 in cash for SOEC’s services. The applicant’s evidence was he thought he was given a receipt for that payment. The Tribunal invited the applicant to provide a copy of the receipt to the Tribunal. After the Tribunal hearing, the applicant in his statutory declaration declared on 31 March 2020 declared that:

    16.As per member of the tribunal request on 25 March 2020, I tried to collect the receipt of agent fees —Shah Overseas Educational Consultants (SOEC) - from India. Unfortunately, I could not find the receipt. (sic)

20. The applicant told the Tribunal he does not know either Mr Vidiyala or the organisation Pupil Abroad and said that information must have been put on his application form by Mr Khan of SOEC and was done without the applicant’s knowledge.

21. The Tribunal discussed with the applicant the financial support provided by his father and his evidence that he has not needed to access the Andhra Bank loan. In the submission dated 18 March 2020 there was a screen capture of part of a statement for the applicant’s Commonwealth Bank Smart Access account showing a balance at 6 January 2020 of AUD52.18, a bank account statement for the same account dated 15 March 2020 showing an opening balance on 29 December 2019 of AUD52.18 and closing balance on 26 February 2020 of AUD317.68 and a bank account statement for the applicant’s Commonwealth Bank NetBank Saver account dated 16 March 2020 showing an opening balance on 1 January 2020 of AUD1,800.53 and a closing balance on 4 March 2020 of AUD11,301.59. The NetBank Saver account statement showed transfers to the applicant of AUD4,000 on 6 January 2020 and AUD8,000 on 17 February 2020.

22. The applicant and his representative explained to the Tribunal that this financial information showed the applicant’s father transferring AUD12,000 to the applicant’s Smart Access account, which the applicant then transferred to his NetBank Saver account and that this amount of funds would cover the applicant’s expenses in Australia for six months. The Tribunal was not convinced that this evidence satisfactorily explained why the applicant had not had any need to access the funds provided by the Andhra Bank loan, particularly given his course fees for the Master of Networking, according to the Certificate of Enrolment provided by the applicant to the Tribunal, indicated the applicant’s total course fees for that course were AUD40,000 (of which AUD20,000 is not yet due). The Tribunal notes that during the time period covered by these bank statements the applicant was not permitted to and was not studying.

23. The applicant provided the Tribunal with copies of a passbook and bank statement for a HDFC Bank Ltd bank account in his father’s name for the period 24 December 2019 to 16 March 2020 showing an opening balance of INR1,300,492 (approximately AUD26,644) and a closing balance of INR1,329,611 (approximately AUD27,240). This statement does not show any transfer of funds on 6 January 2020 or a date near that date but does show a withdrawal of INR600,000 (AUD12,292.56 at the time of this decision) on 14 February 2020.

24. The Tribunal asked the applicant to provide his bank account statements back to October 2017, shortly after his arrival in Australia and to highlight for the Tribunal all the transfers of funds from his father. In the submission dated 1 April 2020 the applicant provided 52 pages of bank statements showing the transactions since he opened his NetBank Saver and Smart Access accounts on 6 October 2017 to 4 March 2020 and 24 March 2020 respectively. The 6 January 2020 and 17 February 2020 transfers of AUD4,000 and AUD8,000 respectively were highlighted in the statements for each bank account showing the receipt of those funds into the applicant’s Smart Access account and then the transfer of those funds to the applicant’s NetBank Saver account.

25. The bank statements provided by the applicant do not show the regular transfer of funds that would support the applicant’s evidence that his father supported him financially and he did not need to access the education loan provided by Andhra Bank.

26. The only transfers where the transaction details record the transfer is from the applicant’s father, Mr Syed Hussain, are the transfers on 6 January 2020 and 17 February 2020 and a further transfer on 23 December 2019 of AUD40 to the applicant’s Smart Access account.

27. The bank statements for the applicant’s Smart Access account show that the applicant received deposits which are recorded in the transaction details section of the statements as being of salary or wages or pay from 17 January 2018 to 21 February 2019 from various employers including My Moovers, Abdul Mohammed, ASAP Recruitment, Uber, Sinclair Recruitment and Oasis Security. Most of these were short term arrangements with only one or two deposits for modest amounts, although in the 13 weeks between 19 February 2018 and 21 May 2018 the applicant received 17 pays totalling AUD7,152.10 from ASAP Recruitment. This represents income of just over AUD550 per week during that period. This is consistent with the applicant’s evidence, set out in paragraph 71 of these reasons, that he worked in Australia for only 12 months of his two and half years here but it is not consistent with his evidence that he earned on average AUD500 per week during that 12 months.

28. It is not evident to the Tribunal from the financial information provided by the applicant that he received regular transfer of funds from his father or that, apart from when working for ASAP Recruitment for three months in 2018, the applicant earned sufficient income to support himself and pay his course fees in Australia. This causes the Tribunal to doubt whether the applicant has been open and frank with the Tribunal about his financial circumstances in Australia. This is turn caused the Tribunal to doubt whether the Andhra Bank loan was genuine because on the oral evidence the applicant gave the Tribunal and the written financial information he provided to the Tribunal, the Tribunal is not satisfied the applicant has provided a reasonable explanation for not needing to access that loan.

29. The Tribunal was also not convinced by the applicant’s evidence about the circumstances in which the non-compliances occurred. The Tribunal finds it difficult to accept that an education agent, when presented with genuine documentation by a client, would then create more work for themselves, risk to their professional reputation and risk for their client, by creating or obtaining fraudulent documentation and submitting that as part of a visa application instead of just submitting the genuine documentation provided by the client.

30. Even if the Tribunal accepted the applicant’s evidence about the circumstances of the non-compliances, which the Tribunal does not, that would only be of limited assistance to the applicant. The applicant’s evidence is, in effect, that he and his family gave authority to an education agent to manage the applicant’s temporary migration to Australia to study and then exercised virtually no oversight or checking of what that agent wrote or submitted on the applicant’s behalf until the applicant was notified the Department was considering the cancellation of his visa.

31. The migration law places strict responsibility on visa applicants to provide correct information, not provide incorrect information and to not provide bogus documents for sound public policy reasons. To question whether such strict responsibilities are realistic or even reasonable would be to diminish the public policy principles behind these provisions: these strict responsibilities are intended to underpin the integrity of Australia’s migration program by ensuring applicant’s bear the ultimate responsibility for what is submitted on their behalf. It is commonly very difficult to objectively determine on the usually limited evidence available what a visa applicant did or did not know and who did what in relation to the visa application when the applicant relied on a third party to assist with that visa application. These provisions address that issue by placing the responsibilities referred to above on the visa applicant, such that the Department, or in the present case the Tribunal, only has to be satisfied that incorrect information or a bogus document was provided as part of a visa application and are not required to prove who caused the incorrect information or bogus documents to be provided.

32. While the Tribunal accepts that there may be cultural and other reasons for the applicant and his family exercising minimal oversight of the actions of the education agent they retained this is not, in the Tribunal’s view, sufficient reason to set aside or disregard the obligations of applicant’s for what is submitted on their behalf.

33. In the applicant’s circumstances the Tribunal does not accept that a fraud has been perpetrated on the applicant. The Tribunal was not convinced by the applicant’s evidence that the agent had sourced the State Bank of India loan documentation and provided it to the Department without the applicant’s knowledge. The Tribunal was also not convinced by the applicant’s evidence that he had obtained and provided to the education agent a prior education loan obtained from the Andhra Bank but had not had reason to call on that loan during his over two and a half years in Australia because his father had provided all necessary financial support to the applicant from other means.

34. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it great weight.

    The present circumstances of the visa holder

35. The applicant gave evidence that he is an excellent student having completed six units, three at high distinction and three at distinction level, of his Master of Networking and having only six further units to complete that course.

36. The applicant provided letters of support from the Industry, Careers and Alumni Officer dated 24 October 2019 and the Student Counsellor and Advocacy Officer dated 13 December 2019, both from Melbourne Institute of Technology (MIT), a Certificate of Recognition from MIT dated 9 August 2019, a letter from MIT dated 9 December 2019 recognising the applicant’s outstanding academic achievement and the applicant’s MIT academic transcript showing he averaged marks of 80.1 across his 6 completed units in 2019 and attendance information showing he had an average class attendance rate of 83%.  The applicant also provided his academic records and completion certificates from his studies in India and his last Confirmation of Enrolment showing he was due to complete the Master of Networking on 30 December 2020 and provided a letter from MIT dated 12 February 2020 confirming MIT had granted him leave from those studies until the second semester of 2020.

37. The Tribunal accepts this evidence and finds that the applicant achieved academic excellence in 2019.

38. The applicant provided submissions explaining his initial poor academic history including performing poorly in the first semester in 2018 of his master of Biotechnology, missing enrolment for the second semester, obtaining a deferment of studies and returning to India to, according to his representative “take some rest and recollect his mental strength” and then enrolled in the Master of Networking completing two of four semesters of that course in 2019 before his Student visa was cancelled on 27 November 2019. The Tribunal accepts this evidence.

39. The applicant told the Tribunal that he had obtained an extension of time to 25 March 2020 to enrol in the next semester of his studies from his education provider. This was the day of the Tribunal hearing. The applicant told the Tribunal if he did not receive a favourable decision from the Tribunal on the day of the Tribunal hearing he would not be able to enrol to continue his studies until the next semester, delaying his completion of those studies to February 2021. The Tribunal accepts this evidence.

40. The applicant explained his circumstances in Australia including living in a house he shares with other international students, that he worked between February 2018 and February 2019 in his time in Australia in different warehouses through an employment agency earning on average AUD500 per week, has no family in Australia and his father paid his course fees of AUD10,000 per semester.

41. The applicant told the Tribunal that he has a younger brother studying in India, has no significant ties to Australia and as his father is about to retire it is his responsibility to return to India to care for his parents. The applicant told the Tribunal that he intends to finish his Master of Networking and return to India where he hopes to get a job combining his pharmacy and information technology skills in the health care sector, potentially as the head of an Information Technology department, because more and more equipment and systems in the health care sector are software dependent. The Tribunal accepts this evidence.

42. The Tribunal discussed with the applicant what would happen if his visa was cancelled and he was not able to complete his studies in Australia. The applicant told the Tribunal he would not be able to get a job in India. The Tribunal enquired whether the applicant could resume his career in pharmacy. The applicant indicated he expects with his information technology skills he will be paid more than he was previously as a pharmacist. The Tribunal accepts this evidence.

43. The Tribunal finds that after initially struggling to adjust to studying and living in Australia, and performing poorly academically as a result, the applicant achieved excellent academic results in 2019 in his Master of Networking course and only has six units over two semesters to complete that course. The Tribunal finds that it appears the applicant has now adjusted to living and studying in Australia and this indicates to the Tribunal that the applicant has the potential to successfully complete his studies in Australia.

44. This indicates to the Tribunal that in the applicant’s present circumstances the cancellation of his visa will cause him considerable emotional and potentially financial hardship as he will not be able to complete his studies in Australia to pursue his chosen career path.

45. The Tribunal did not discuss with the applicant whether he could complete his Master of Networking studies in India as the Tribunal accepts that international students choose to study in Australia for many reasons, but including that an academic qualification from a country like Australia can carry more prestige than a local equivalent qualification would provide when seeking employment in their home country.

46. The Tribunal also acknowledges that the cancellation of the applicant’s visa is also likely to cause his parents significant emotional and financial hardship in the sense that the money they have spent supporting the applicant will not have achieved its intended purpose.

1. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it considerable weight.

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

2. The evidence before the Tribunal is that the applicant has participated in the visa cancellation process, providing a detailed response to the s.107 notice and has cooperated fully with the Department. There is no information before the Tribunal of the applicant behaving adversely toward the Department.

3. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

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

4. There is no information before the Tribunal of any other instances of non-compliance with the migration law by the applicant.

5. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

   The time that has elapsed since the non-compliance

6. The non-compliances occurred in July 2017 when the applicant applied for his Student visa. The applicant repeated his evidence that he was not aware of the non-compliances, that the loan from Andhra Bank is genuine and he is a genuine student who only needs a relatively short time to complete his studies in Australia and return to India.

7. The Tribunal finds that the non-compliances have occurred relatively recently, being less than three years ago.

8. The Tribunal finds that this consideration weighs in favour of the cancellation of the applicant’s visa and the Tribunal gives it modest weight.

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

9. The applicant told the Tribunal that he has not breached the law since July 2017. The Tribunal accepts this evidence as there is no information before the Tribunal of the applicant having been found to have breached the law.

10. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    Any contribution made by the holder to the community.

11. The applicant told the Tribunal that he participates in local Telangana community events, with the group having a cultural rather than religious focus for people from Telangana state in India. The applicant’s evidence is he has not had any other involvement in cultural, social, sporting, service or other clubs or groups in Australia.

12. The applicant also told the Tribunal he acted as a student adviser at MIT assisting student, predominantly from India, with information, accommodation, health care and support about working and studying in Australia. That evidence is supported by a certificate of recognition from MIT dated 9 August 2019.

13. The applicant told the Tribunal he has not performed any voluntary work in Australia but has made enquiries of Maribyrnong Council for voluntary work but has not formally applied yet.

14. The Tribunal accepts the applicant’s evidence in relation to this consideration.

15. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    Department’s Procedural Instructions

16. While the prescribed 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 Instructions, formerly known as the Department’s Procedures Advice Manual or PAM3 ‘General visa cancellation powers (s109, s116, s128, s134B and s140)’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s.140

17. The applicant told the Tribunal that no-one is dependent upon his visa. The Tribunal accepts this evidence and finds that the cancellation of the applicant’s visa would not cause the consequential cancellation of anyone else’s visa.

18. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    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   

19. The applicant told the Tribunal he does not have any children and does not claim Australia owes him any protection, non-refoulement or other similar obligations.

20. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

21. The Tribunal explained to the applicant that if his visa is cancelled by the Tribunal he would become an unlawful noncitizen and be liable to be detained under s.189 of the Act and if he did not depart Australia voluntarily or was not granted another visa he would then be liable to be removed under s.198 of the Act.

100.   The Tribunal also explained that s.48 of the Act would operate with the effect of limiting the types of visas, particularly temporary visas, the applicant could apply for while he remains in Australia if his visa is cancelled.

101.   The Tribunal noted to the applicant that cancellation of his Student visa in his circumstances also has the consequence that Public Interest Criterion 4013 will apply to him such that he may not be able to meet the requirement for the grant of certain visas for a three-year period from the date of the cancellation of his Student visa unless limited exceptions, such as whether there are compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, apply.

102.   The applicant told the Tribunal that he genuinely wants to complete his studies in Australia and will then go back to India as he has no intention to stay in Australia. The Tribunal accepts that the cancellation of the applicant’s visa will prevent him from realising his current plans and this will cause the applicant hardship.

103.   The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

104.   The Tribunal has considered the hardship that cancellation of the applicant’s visa may cause to the applicant and to his family in paragraphs 67 to 79 of these reasons.

105.   The applicant’s representative referred the Tribunal to the cases of Nguyen (Migration) [2019] AATA 4740 and Nnadi (Migration) AATA 6329. The Tribunal read these cases and discussed them with the applicant’s representative. In Nguyen the only issue before the Tribunal in that review was whether the applicant had genuine access to sufficient funds for his stay in Australia. The applicant provided additional information to the Tribunal which decided, on the papers, to remit the matter to the Minister for reconsideration.

106.   In the case of Nnadi, the review applicant was from Nigeria and was one of a group of applicants where the Department suspected visas had been granted as the result of fraud perpetrated by Departmental officials. In that case, the Tribunal was satisfied the applicant was not involved or implicated in that fraud and her visa was cancelled only because she was one of a batch of applications the Department suspected was tainted by fraud. The Tribunal set aside the cancellation.

107.   The applicant’s representative submitted Nnadi is relevant because the applicant, like Ms Nnadi, had no control over what caused the cancellation of his visa. The applicant’s representative submitted Nguyen is relevant to the applicant’s review because the applicant, like Mr Nguyen, can demonstrate that at the time of his application and now at the time of this review he has genuine access to sufficient funds to meet the requirements of cl.500.214.

108.   In support of this submission, the applicant’s representative also provided written submissions demonstrating that the applicant had, at the time of his visa application, genuine access to sufficient funds including by relying on the Andhra Bank education loan, to satisfy the requirements of cl.500.214 for the grant of a Student visa. This information also responded to a finding from the delegate that if the applicant had relied on the Andhra Bank loan he may not have had sufficient funds to meet the requirements of cl.500.214. This was not an active issue for the Tribunal but the Tribunal accepts the representative’s submissions that his client would have been able to meet the requirements of cl.500.214 if the Andhra Bank education loan was genuine and had been provided with his visa application.

109.   The Tribunal found these previous decisions of the Tribunal, differently constituted, to be of limited assistance in the present review but has considered them in these reasons.

110.   The Tribunal also considered that these submissions of the applicant’s representative are relevant to the hardship that cancellation of the applicant’s visa will cause the applicant. The overall circumstances of the applicant are that the applicant feels he has been the victim of a fraud by SOEC, which the Tribunal has not accepted, that if the documentation for the Andhra Bank loan had been provided he would still have met cl.500.214 and his visa would not have been cancelled and cancellation has arisen when he has only half of his Master of Networking course to complete, having demonstrated in 2019 after poor academic performance in 2018, that he is an excellent student in his Master of Networking studies. The Tribunal accepts that based on this narrative the applicant would experience additional hardship if his visa is cancelled because he could perceive he is the victim of fraud and is being unfairly denied the opportunity to complete his studies in Australia. The Tribunal has taken this hardship into consideration in these reasons.

111.   In his closing evidence to the Tribunal, the applicant told the Tribunal he is a genuine temporary entrant into Australia to study, he would like to complete his current course, there are ample opportunities for employment in his chosen field when he returns to India, he will return to India to support his parents as his father is to retire soon and he has excellent academic results in his current course. The Tribunal asked the applicant about his poor academic performance in 2018. The applicant told the Tribunal he was homesick when he arrived in Australia and struggled with his studies, failing in his first semester studies, but then went back to India and researched what opportunities there were for him and realised the opportunities for him in information technology and pharmacy and returned to Australia focused on his career path and studies.

112.   The Tribunal accepts this evidence and has considered it in these reasons.

Conclusion

113.   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 considers that those considerations that weigh in support of the cancellation of the applicant’s visa outweigh those considerations that weigh against the cancellation of the applicant’s visa.

114.   For these reasons, the Tribunal concludes the applicant’s Student visa should be cancelled.

DECISION

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

Michael Ison
Senior Member

Attachment 1 – submissions received by the Tribunal on behalf of the applicant

The documents received by the Tribunal on behalf of the applicant prior to the Tribunal hearing included:

Document

Date

1.   A copy of the bio-data pages of the applicant’s passport

Issued 02/08/2012,

expires 01/08/2022

2. Record of decision to cancel the applicant’s visa under s.109 of the Migration Act

27 November 2019

3. Notification of Cancellation under s.109 of the Migration Act

27 November 2019

4.   The hearing response form

04 March 2020

5.   A new appointment of Representative /Authorised Recipient – MR Division form – MR5 form

02 December 2019

6.   Written submission from the applicant’s representative (16 pages)

18 March 2020

a.    Screen capture of exchange rate AUD to INR

18 March 2020

b.    Copy of IMMI 17/012 Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas 2017/012

20 March 2017

c.     Pay slip for Mr Syed Hussain (the applicant’s father)

20 November 2019

d.    A letter of support for the applicant from Student Counsellor and Advocacy Officer, Bi Ying Low of MIT

13 December 2019

e.    Educational loan document from Andhra Bank

31 May 2016

f.   Screen capture of the applicant’s Smart Access bank account

Undated

g.    Statement of Purpose from the applicant regarding Genuine Temporary Entry requirement  of his student visa

Undated

h.    Pay slip for Mr Syed Hussain

23 October 2019

i.   Confirmation of enrolment letter from MIT

16 December 2019

j.   Copy of Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019

04 October 2019

k.     Photos of the passbook for Mr Syed Hussain’s bank account with HDFC Bank Ltd

Open date: 23/12/2019

Balance date: 01/01/2020

l.   Character reference from the Industry, Careers and Alumni Officer, Jared Nathaniel of MIT

24 October 2019

m.   Land valuation report

14 May 2016

n.    Certificate of Recognition from MIT for the applicant’s role as a Senior Buddy, Trimester 2, 2019

9 August 2019

o. A copy of Notice of Intention to Consideration Cancellation of a visa under s.109 of the Act (the s.107 notice)

21 October 2019

p.    Property title information

5 May 2016

q.    Academic Transcript for the Master of Networking

13 December 2019

r.     Applicant’s response to the s.107 notice

6 November 2019

s.     Pay slip for Mr Syed Hussain

17 September 2019

t.   Screen capture of the applicant’s class attendances for Semester 2, 2019

Undated

u.    Educational loan document from Andhra Bank

16 June 2017

v.     Recognition of Outstanding Academic Achievement in the applicant’s Master of Networking course during Trimester 2, 2019

09 December 2019

Attachment 1 (continued) – submissions received by the Tribunal on behalf of the applicant

w.   Confirmation of Enrolment A2B77E57 – Master of Networking, course start date 18/03/2019 and end date 30/12/2020

04 December 2018

x.     Confirmation of Enrolment 90F94653 – Master of Science in Biotechnology, course start date 26/02/2018 and end date 31/12/2019

18 August 2017

y.     Affidavit of Support from Mr Syed Hussain

13 March 2020

z.     Letter from MIT approving the applicant’s request for leave from his studies for Semester 1, 2020

12 February 2020

aa.  Photos of the passbook for Mr Syed Hussain’s bank account with HDFC Bank Ltd

Open date: 23/12/2019

Balance date: 16/03/2020

bb.  Statement for the applicant’s Smart Access account for 29/12/2019 to 26/02/2020

15 March 2020

cc.  Confirmation of Enrolment 8EBE1898 – Master of Science in Biotechnology course start date 31/07/2017 and end date 30/06/2019

26 June 2017

dd.  Statement for the applicant’s NetBank Saver account for 29/12/2019 to 16/03/2020

16 March 2020

ee.  Statement for Mr Syed Hussain’s HDFC Bank Ltd account for 23/12/2019 to 16/03/2020

Undated

ff.    Photo of Telangana State identity card for Mr Syed Hussain

Undated

gg.  Copies of the applicant’s Indian tertiary and secondary school completion certificates and academic transcripts  

Various dates

The documents received by the Tribunal on behalf of the applicant after the Tribunal hearing included:

7.   Hearing response form	19 March 2020
8.   A new appointment of Representative /Authorised Recipient – MR Division form – MR5 form	02 December 2019
9.   Written submission from the applicant’s representative (6 pages)	01 April 2020
a.    Statements for the applicant’s NetBank Saver account for 06/10/2017 to 4/03/2020	26 March 2020
b.    Statements for the applicant’s Smart Access account for 06/10/2017 to 24/03/2020	26 March 2020
c.     Screen capture of exchange rate AUD to INR	Undated
d.    Letter from MIT approving the applicant’s request for leave from his studies for Semester 1, 2020	12 February 2020
e.    Statutory Declaration declared by the applicant	31 March 2020
f.   Screen capture of exchange rate AUD to INR	18 March 2020

ATTACHMENT 2 – 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.