Shubham (Migration)

Shubham (Migration) [2022] AATA 2801 (15 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shubham
REPRESENTATIVE:  Mr Suraj Khatri (MARN: 0747797)
CASE NUMBER:  2203229
HOME AFFAIRS REFERENCE(S):          BCC2022/232242
MEMBER:Michael Biviano
DATE:15 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 15 July 2022 at 1:55 pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant gave an incorrect answer in the visa application – failure to disclose the visa refusal was due to an administrative error – excellent academic record – emotional hardship and financial hardship – applicant had established significant ties to Australia with his study, employment and friends – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant gave an incorrect answer in the visa application in which it stated that he had not previously been refused an application for entry or further stay in Australia or any other country, when in fact he had been refused a student visa to Canada, in contravention of s 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 24 June 2022 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and the Migration Regulations 1994 (Cth) (the Regulations) have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.
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.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The s 107 notice was constituted by the Notice of Intention to Consider Cancellation (NOICC) dated 8 February 2022. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act in the following respects:
a.On 31 December 2021, the applicant lodged an application for a Student (Subclass 500) visa and submitted the electronic form Application for a Student Visa.
b.On page 10 of the application form, under the heading Visa History, the applicant provided the following information (in bold):
Has the applicant, or any person in the application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled? No
c.The applicant was granted a student visa on 21 January 2022, based on that information, as well as meeting all other relevant criteria for the grant of a student visa.
d.The applicant arrived in Australia on 30 January 2022, and the Department became aware of contrary information, namely that the applicant had previously been refused a visa for entry into Canada on 24 October 2021.
e.The delegate considered that the applicant had provided an incorrect answer in his Application for a Student Visa at page 10 under the heading Visa History, where he had stated that he had not previously had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled, because on 24 October 2021 his visa application for entry into Canada was refused, as per information received by the Department after the applicant’s arrival on 30 January 2022.
f.By answering yes to the Declarations on page 14 of the visa application form, the applicant agreed that he provided complete, correct and up-to-date information in his application, but he had not done so.
g.Based on the above information, it appears that the applicant had provided incorrect answers to his student visa application and the delegate considered that he may have not complied with s 101(b) of the Act, and that his student visa may be liable for cancellation under s 109 of the Act.
On 23 February 2022, the applicant filed a Response to the NOICC (Response) which relevantly stated:
The visa holder is a young student aged 20 who has just arrived in the country with high hopes of achieving higher education in Australia. He has recently been issued with a notice of intention to consider cancellation of his student visa under section 109 of the Migration Act 1958 (the act).
Regulation 2.41 of the Migration Regulations 1994 (the regulations) sets out the matters which the delegate must consider. We make the submissions below which we request the deciding officer to take into considerations while considering whether to cancel he visa or not.
We agree with the allegations on the email dated 8th of February that our client’s visa application failed to mention the fact that his student visa application for Canada had been refused. We submit that Shubham had always intended to be candid and upfront about his circumstances during the entire visa application process. Shubham has since been in contact with the education agent who had assisted him with the preparation of the visa application. The education agent has advised him that they always intended to mention the Canadian visa refusal on the visa application and believe it would have been not mentioned due to data entry error rather than any ill intent.
I believe that the decision to grant the visa was mostly in lieu of his academic documents and financials. As a registered Migration Agent, I have come across many student visa holders who have been granted an Australian student visa who have had their visas for other countries refused in the past. We submit that the fact that he was refused a student visa to Canada, while being a factor to be considered by the deciding officer, in its singularity, would most probably not have resulted in a visa refusal. This is especially in light of his excellent academic record, strong English language, strong financial support and his desire to undertake higher education at a prestigious Australian university.
…
The circumstances in which the non-compliance occurred
The visa was lodged by a reputed overseas agent who had been advised by the visa holder about his Canadian student visa refusal and Shubham believed that the visa application was lodged with all the correct information. Shubham had not instructed for the refusal to not be declared. Shubham believes that the failure to disclose the visa refusal was due to an administrative error and not any ill intent on his part or the agent who assisted with preparing the visa application.
The present circumstances of the visa holder
Shubham is currently in Australia after having travelled from India on the 30th of January 2022. He has already undertaken major expenses and made major decisions based on the visa grant. It would be unfair for his visa to be cancelled over the failure to disclose the visa refusal.
…
The subsequent behaviour of the visa holder and any non-compliance or breaches of the law by the visa holder
Shubham has not made any other incorrect statements apart from the issue at hand in the visa application as well as his other dealings with Home Affairs or other authorities. He has always followed all the law of the land and has abided by the rules and conditions of his visa to the best of his knowledge before and since arriving in Australia just over a month ago. Shubham has never had any non-compliance issues or breach of the Australian law.
Contribution made by the holder to the community/economy.
Shubham genuinely wants to undertake studies at a reputed university and is academically capable of doing so as assessed by the University. The visa holder will contribute a sum of approximately $110,000 to the university. This is not including the contributions he will make in terms of the expenditure he will make in accommodation and other living expenses. The international student sector has suffered a lot due to the pandemic related border closures and I believe a decision not to cancel his visa would be a small but positive effect on the struggling education industry as well as the overall future of this promising young man.
His academic records are also sound and his IELTS test results show that his command in English is above the level required for the visa grant. He is aware of the recent relaxation of working hours for student visa holders and thus has also started working at Glenroy Bakery located at 17 Blenheim Street, Glenroy VIC 3046 and is already contributing to the struggling Australian hospitality labor market as well. He has made new friends here already and is very excited about embarking on a new chapter in his life. These are the signs of a young man who is responsible and hardworking, and exactly the type of student the international education industry wants to target. However, upon receiving this notice, a dark cloud of uncertainty has been hanging over his head. He is worried that his and his family’s dream of him obtaining an internationally recognized qualification may be dashed even before it starts. All the efforts undertaken by his family and the expenses incurred by them may be in vain.
We understand that our client should have reviewed the visa application prior to the lodgment to ensure that the application reflect his true situation and he failed to do so. However, our client was only 19 years old at the time of the application and it is understandable that he may have overlooked the error in the application prior to the visa lodgment. We reiterate that he did not mean to mislead the department and the wrong answer was just an administrative error. We believe that since this is the only error that has occurred on our client’s part that the benefit of doubt be afforded to him.
We believe that his life is currently at crossroads. One road could lead to a life enriched with academic progress and strong career and the other one could spiral into disappointment and failure given such young age of our client. We believe it would be manifestly unfair to force the young man to abandon his dreams and return to India as it would cause him and his family immense problems academically, financially not to mention the family’s reputation which they hold at such high regards. Shubham has only just turned 20 and has so much to contribute to Australia, his home country and to the world and the act of kindness could teach him much more than a heavy-handed act of the student visa cancellation.
We believe that he met and continues to meet all the legal requirements of the visa grant apart from the singular instance of providing the wrong answer in question which is the subject of this submission. As such, we, on behalf of the young man and his family, we urge the deciding officer to consider not cancelling the visa. We submit that the benefits of not cancelling the visa holder’s visa, as outlined above, far outweighs the need to cancel his visa.
Cancellation holds serious negative denotations and connotations and would bring adverse effect on any future application. We only wish to request that the department that the applicant did not come to Australia as a non-genuine student visa holder. The applicant intends to complete his education in Australia and return to his home country after the completion of his course.
The applicant by the Response and in evidence admitted the non-compliance and breach of s 101(b) of the Act.
The Tribunal notes that the applicant is a 20-year-old Indian national who obtained a Student (Class TU) (Subclass 500) visa on 21 January 2022, which had a visa expiry date of 15 March 2025.
The Decision Record of the delegate of the Department of Home Affairs dated 28 February 2022, which was provided to the Tribunal by the applicant, confirms the Department cancelled the student visa and the reasons for the cancellation of the visa (Decision Record).
The Decision Record confirms that the applicant arrived in Australia on 30 January 2022 and that he held an enrolment in a Bachelor of Business course at Latrobe University.
The applicant in evidence confirmed that he had applied for a student visa to Canada with his then education and migration agent back in India. He confirmed that the application for the student visa was refused on 24 October 2021. He provided to the Tribunal the refusal letter from the Government of Canada which stated:
Thank you for your interest in studying in Canada. After careful review of your study permit application and supporting documentation, I have determined that your application does not meet the requirements of the Immigration and Refugee Protection Act (IRPA) and Immigration and Refugee Protection Regulations (IRPR). I am refusing your application on the following grounds:
• I am not satisfied that you will leave Canada at the end of your stay, as stipulated in subsection 216(1) of the IRPR, based on the purpose of your visit.
• Your proposed studies are not reasonable in light of: your qualifications, previous studies, missing mark sheets, academic record, level of establishment, language abilities, financial ability, and/or your future prospects and plans.
You are welcome to reapply if you feel that you can respond to these concerns and can demonstrate that your situation meets the requirements. All new applications must be accompanied by a new processing fee.
The applicant in evidence claimed that he had applied for a student visa to Canada on the basis of undertaking hospitality and hotel management courses in Canada, which he was recommended to take by his then agent.
The applicant gave evidence that on obtaining the Canadian visa refusal, he changed education/migration agent in India. The applicant claimed that he then appointed Mr Adiayasharma, who had previously obtained a student visa for his father’s brother-in-law to study in Portugal. The applicant gave evidence that he selected undertaking business-based qualifications in Australia with the intention of becoming a Human Resources Manager or obtaining a business management role.
The applicant gave evidence that:
a.He provided to Mr Adiayasharma a copy of the Canadian visa refusal letter;
b.He believed that Mr Adiayasharma was including the visa refusal in the application for filing and he claims that his agent told him that he intended to include the Canadian visa refusal;
c.Mr Adiayasharma prepared the visa application without providing a copy to him to approve before filing but the application inadvertently excluded the refusal;
d.He expected that the Department would take into account the Canadian visa refusal as part of his application;
e.Mr Adiayasharma informed him that his visa had been granted, without a review of the application and without telling him that he had made the application.
Furthermore the applicant made a telling concession that after his visa was cancelled he reviewed his visa application and discovered that his email address set out in the application was [email protected] which was not his actual email address.
The applicant confirmed in evidence that the application was in error for not disclosing the Canadian visa refusal, and in the response in the visa application where he had stated that he had not previously had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled, and it constitutes a contravention of s 101(b) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) of the Act by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 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.
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 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 applicant has claimed in the Response that the visa should not be cancelled for the following reasons:
a.The fact that the applicant was refused a student visa to Canada, while being a factor to be considered by the deciding officer, in its singularity, would most probably not have resulted in a visa refusal. This was especially in light of the applicant’s excellent academic record, strong English language proficiency, strong financial support and his desire to undertake higher education at a prestigious Australian university.
b.The visa was lodged by a reputed overseas agent who had been advised by the applicant about his Canadian student visa refusal and the applicant believed that the visa application was lodged with all the correct information and he had not instructed for the refusal to not be declared. He believes that the failure to disclose the visa refusal was due to an administrative error and not any ill intent on his part or the agent who assisted with preparing the visa application.
c.The applicant is currently in Australia after having travelled from India on 30 January 2022. The applicant has already undertaken major expenses and made major decisions based on the visa grant. It would be unfair for his visa to be cancelled over the failure to disclose the visa refusal.
d.The applicant has not made any other incorrect statements (apart from the non-disclosure of the Canadian visa refusal and his email address) in his other dealings with the Department or other authorities. The applicant has always followed the law of the land and has abided by the rules and conditions of his visa to the best of his knowledge before and since arriving in Australia just over a month ago. The applicant has never had any non-compliance issues or breached the Australian law.
e.The applicant genuinely wants to undertake studies at a reputed university and is academically capable of doing so as assessed by the University. He will contribute a sum of approximately $110,000 to the University. This is not including the contributions he will make in terms of the expenditure for accommodation and other living expenses, and a decision not to cancel his visa would be a small but positive effect on the struggling education industry as well as the applicant’s overall future.
f.The applicant’s academic records are also sound and his IELTS test results show that his command in English is above the level required for the visa grant.
g.The applicant was working at Glenroy Bakery located at 17 Blenheim Street, Glenroy VIC 3046 and is already contributing to the struggling Australian hospitality labour market. The applicant claims that he obtained the job within a week of arriving here in Australia but ceased working here on losing work rights on the cancellation of his visa. The applicant has made new friends already and is very excited about embarking on a new chapter in his life. The applicant is responsible and hardworking, and exactly the type of student the international education industry wants to target.
h.Upon receiving this notice, a dark cloud of uncertainty has been hanging over the applicant who is worried that his and his family’s dream of him obtaining an internationally recognised qualification may be dashed even before it starts. All the efforts undertaken by his family and the expenses incurred by the applicant may be in vain.
i.The applicant accepts that it was his responsibility to review the visa application prior to the lodgement to ensure that the application reflects his true situation and he failed to do so. The applicant was only 19 years old at the time of the application and it is understandable that he may have overlooked the error in the application prior to the visa lodgement. This was not to intentionally mislead the Department as the incorrect answer was just an administrative error.
j.The applicant believes it is manifestly unfair to force him to abandon his dreams and return to India as it would cause him and his family immense problems academically and financially not to mention damage to the family’s reputation.
k.He has only just turned 20 and has so much to contribute to Australia, his home country and to the world and the act of kindness could teach him much more than a heavy-handed act of the student visa cancellation.
l.The applicant met and continues to meet all the legal requirements of the visa grant apart from the instances of providing the wrong answer.
m.The applicant intends to complete his education in Australia and return to his home country after the completion of his course.

The applicant filed with the Tribunal the following supporting documents in support of his application:
a.Passport extracts from the applicant’s passport;
b.Canadian visa refusal letter dated 24 October 2021;
c.Submissions from the applicant’s representative dated 20 June 2022 which contained in essence the matters set out in the Response;
d.Email from Latrobe University dated 8 November 2021 containing initial letter of offer;
e.Confirmation of Enrolment (COE) numbered CAB75131 for the applicant to study a Bachelor of Business at Latrobe University with a start date of 28 February 2022 and course end date of 31 December 2024. The COE reveals that the tuition fee for the course is $107,400.
Assessment of factors
The Tribunal has assessed the applicant’s Response and all the prescribed circumstances as set out in reg 2.41 as follows:
(a) The correct information
As discussed above the applicant had incorrectly declared in his visa application that he had not previously had an application for entry or further stay in Australia or other country refused, when the correct information was that the applicant did have an application refused to enter Canada on 24 October 2021.
The applicant claims in the Response that the incorrect information was provided by his education/migration agent in circumstances where he had disclosed the refusal to the agent, he believed the agent would have included it in the application and he did not know that the agent had not included it and it appears that the provision of the incorrect information was inadvertent.
However s 98 of the Act provides:
98 Completion 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.
The effect of s 98 of the Act, is that the applicant is considered to have completed his application form, despite the alleged assistance he received from his agent who completed the form.
In light of s 98 he is responsible for the incorrect information in the application form.
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
(b) The content of the genuine document (if any)
The content of a genuine document is not in issue in this matter, as the issue of non-compliance relates to incorrect information in a visa application and there is no issue as to whether he has provided genuine documents.
The Tribunal gives this consideration no weight in favour of cancelling the visa.
(c) Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal notes that in assessing the applicant’s eligibility for the visa, one of the requirements the delegate assessed was whether the applicant satisfied cl 500.212, as to whether he was a genuine applicant for entry and stay as a student.
In making that assessment as to whether the applicant is a genuine temporary entrant, the applicant’s circumstances as a whole would need to be considered to determine that this requirement is satisfied. In assessing those matters, regard is had to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The decision maker will have regard to a number of circumstances including:
a.the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
b.the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
c.if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
Accordingly the decision maker will consider the applicant’s visa and immigration history and the visa refusal would have been one of the factors that would have been taken into consideration in the assessment of the applicant’s application for a student visa. The Decision Record confirms that the delegate was not aware of the previous visa refusal because the applicant had not declared it.
Plainly had the correct information been known at the time of assessing the application and making the decision it may have resulted in the delegate making a different assessment and decision. The applicant’s representative in the Response and Submissions claims that the other factors would have led the delegate to make the same assessment including due to the applicant’s excellent academic record, strong English language, strong financial support and his desire to undertake higher education at a prestigious Australian university.
The Tribunal accepts that the issue of the Canadian visa refusal would have resulted in the delegate making further enquiries and investigations and when considered in light of the circumstances of the applicant, the high-level course he was undertaking, his English language proficiency and his previous strong academic results. Depending on the results of those enquiries and investigations, the delegate may have made a different assessment.
Accordingly the Tribunal gives this consideration some weight in favour of cancelling the visa.
(d) The circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant submitted incorrect information in relation to his visa and immigration history when he submitted an application for a student visa.
As discussed above and set out in the Response and in evidence the applicant stated that the application was lodged by a reputed agent who had been provided with the Canadian student visa refusal. The applicant believed that the visa application had been lodged with all the correct information and had not been aware of the omission of the Canadian visa refusal. The applicant believes that the failure to disclose the visa refusal was inadvertent.
While the Tribunal accepts that the applicant’s evidence that the agent prepared the visa application form and that he had not provided the visa refusal due to an administrative error and not due to any ill intent on his behalf, the Tribunal is somewhat concerned that the applicant did not read through the application before its submission to the Department. While the applicant in evidence claims that he was not aware that the application had been filed, the Tribunal does not accept that as an excuse for an error on his student visa application.
As discussed above the Tribunal accepts that there has been non-compliance as set out in the NOICC and it notes the application of s 98, but also ss 99 and 100 of the Act regarding the non-citizen being ultimately responsible for the answers provided to the Department on application forms.
Accordingly, the Tribunal does not accept that the provision of the visa application form with incorrect information was due to circumstances beyond his control. It was open to the applicant to insist on the agent to provide him with all documents before they were provided to the Department.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
(e) The present circumstances of the visa holder
The applicant arrived in Australia on 30 January 2022 holding a student visa to study a Bachelor of Business at Latrobe University. The applicant submitted a Letter of Offer and Confirmation of Enrolment, confirming the applicant’s enrolment in the Bachelor of Business at Latrobe University with a course start date of 28 February 2022 and course end date of 31 December 2024.
Furthermore he gave evidence that shortly after arriving in this country he applied for and obtained a job at the Glenroy Bakery before starting study.
By reason of visa cancellation he has lost both study rights and work rights, before he could commence studies. He claims that he did not make application to reinstate work and study rights because he was aware of this impending hearing.
The applicant gave evidence that his parents have used their savings to pay for his education here and they paid his first semester fees. The applicant was not totally certain about the amount that has been paid, but the tuition fees on the COE, indicate the tuition fees for the Bachelor of Business are $107,400 for the 3 years of the course. The tuition fees for the first semester would be substantial.
He claims that if the cancellation is set aside he will be able to return to study and undertake the Bachelor of Business.
The Tribunal notes that if his visa is cancelled, the applicant would no longer hold a visa to lawfully reside and study in Australia. The Tribunal notes that this would cause him both emotional hardship and financial hardship as he would no longer be permitted to study towards an educational qualification in Australia as he had planned and desired to complete which would provide him with substantive employment opportunities. It would also cause financial hardship, in that the tuition fees that his family had paid would be lost. If the visa is cancelled his studies will cease and he will not be able to seek to recover his employment.
The applicant both in the Response and Submissions claims that taking away his opportunity to study here will be detrimental to the applicant not only in relation to his career, but his confidence and reputation, and the relationship with the friends he has made.
The Tribunal accepts that the applicant had established significant ties to Australia with his study, employment and friends, which would be severed by the cancellation.
The Tribunal gives this consideration significant weight against cancelling the visa.
(f) The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence before the Tribunal that would suggest the applicant’s behaviour does not accord with his obligations under Subdivision C of Division 3 of Part 2 of the Act.
The Tribunal gives this consideration some weight against cancelling the visa.
(g) Any other instances of non-compliance by the visa holder known to the Minister
The Decision Record does not indicate there are other instances of non-compliance by the applicant. The applicant voluntarily conceded in evidence that there may have been further non-compliance in that the email address for the applicant set out in the visa application was not his email address. The email address used was a Gmail email address which contained part of the applicant’s name and date of birth. It appears that the agent set up this email address for the purposes of the application, which the Tribunal considers an inappropriate practice. The agent ought to have used the applicant’s email address. Ordinarily the email address is used for the purposes of contacting the applicant. However it is not uncommon for a person to have more than one email address. In such circumstances the Tribunal accepts the address provided in this case was a valid contact address for the applicant in relation to the visa application.
In light of those matters there is no other evidence before the Tribunal of non-compliance.
The Tribunal gives this consideration some weight against cancelling the visa.
(h) The time that has elapsed since the non-compliance
The non-compliance occurred when the applicant lodged his student visa application on 31 December 2021. The applicant was granted the student visa on 21 January 2022 and arrived in Australia on 30 January 2002. A period of just over 6 months has lapsed since the non-compliance which is not substantial. However during that period of time the applicant developed some ties with gaining enrolment to study, working at the Glenroy Bakery and meeting friends. Such ties due to their duration and interruption by the cancellation of his visa are not strong. Nevertheless those ties do exist and whilst temporary must be considered in light of this application.
The Tribunal gives this consideration some weight against cancelling the visa.
(j) Any breaches of the law since the non-compliance and the seriousness of those breaches
The Decision Record confirmed that there was no information before the delegate to indicate the applicant has breached any laws since the non-compliance occurred. There is no evidence before the Tribunal to suggest otherwise.
The Tribunal gives this consideration some weight against cancelling the visa.
(k) Any contribution made by the holder to the community
The applicant both in evidence and the NOICC claimed that he wants to undertake studies at a reputed university and is academically capable of doing so as assessed by the University. He claimed that he will contribute a sum of approximately $110,000 to the University. This amount accords with the fees set out in the COE being $107,400, which does not include the contributions he will make in terms of the expenditure for accommodation and other living expenses. The applicant claims that the education sector has suffered due to the pandemic and the decision not to cancel his visa would be a small but positive effect on the struggling education industry as well as the applicant’s overall future.
The applicant claims that he was working at Glenroy Bakery and was contributing to the struggling Australian hospitality labour market. The applicant claims that he obtained the job within a week of arriving here in Australia but ceased working here on losing work rights on the cancellation of his visa.
The applicant claims that he has made new friends already and is very excited about embarking on a new chapter in his life. The applicant claims that his friendships with his friends continue.
Whilst these matters establish that he has made contributions to the community, due to his relevantly recent arrival and his inability to work and study, the Tribunal considers that such contribution to the community has not been substantial.
The Tribunal gives this consideration marginal weight against cancelling the visa.
Other matters
In making its assessment of the applicant’s evidence, Response and the applicant’s application, the Tribunal has considered the following other relevant matters:
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
The applicant obtained a visa on his own and there are no dependents to his visa.
The Tribunal finds that if it decides to cancel the visa, it will not result in the consequential cancellation of any other person’s visa pursuant to s 140 of the Act.
Therefore the Tribunal gives this consideration no weight in favour of or against cancelling the visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
The applicant has not applied for protection nor made any claims that returning to his home country would result in significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations, if the visa were to be cancelled and the applicant had to return to his home country.
The policy guidelines require an assessment as to whether Australia would be in breach of its international obligations including the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).
There is no evidence before the Tribunal to indicate that the applicant has any minor children in Australia whose interests may be adversely affected if the Tribunal decides to cancel the visa.
In such circumstances the Tribunal does not consider that cancelling the visa would potentially result in a breach of Australia’s obligations under the CROC or the ICCPR.
In all those circumstances, the Tribunal is satisfied that cancelling the visa would not potentially lead to the applicant being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention, or in breach of the Refugee Protocol.
Accordingly the Tribunal gives this consideration no weight in favour of or against cancelling the visa.
Whether there are mandatory legal consequences to a cancellation decision
A visa cancellation may result in the applicant being detained under s 189 and liable to be removed from Australia under s 198 of the Act as he would no longer hold a valid visa.
If the Tribunal decides to cancel the visa, as a citizen of India it would be open to the applicant to return to that country, to mitigate the possibility of being placed in immigration detention. In such circumstances the Tribunal does not consider there is potential for the applicant to be detained indefinitely.
Further the applicant may be subject to s 48 of the Act preventing him from applying for further visas while in Australia and he is likely to be affected by PIC 4013 limiting the granting of a further temporary visa for a specified period.
While these matters impose substantive legal consequences that flow upon the cancellation of the visa, the Tribunal notes that is the effect of both the legislation and regulatory framework that has been enacted and put in place.
The Tribunal give this consideration marginal weight against cancelling the visa.
Any other relevant matters
The Tribunal is not aware of any other relevant matters to be considered.
Conclusion
Having considered the above circumstances, including that the applicant was young being 19 years of age at the time of the application, was reliant on his agent at the time of the application, has enrolled in a high-level qualification at the bachelor’s degree level at a university, and the hardship to the applicant and his family caused by the cancellation, the extent of the non-compliance and that the non-compliance was as a result of the inadvertent omission by his agent, the Tribunal considers that cancelling the visa would be harsh in the circumstances.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Michael Biviano
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.
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.

[2022] AATA 2801

15 July 2022

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