Simran (Migration)

[2022] AATA 2085

Simran (Migration) [2022] AATA 2085 (18 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Simran Simran

REPRESENTATIVE:  Mr John Kotsifas (MARN: 0323893)

CASE NUMBER:  2106560

HOME AFFAIRS REFERENCE(S):          BCC2018/5101991

MEMBER:Joseph Lindsay

DATE:18 June 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 18 June 2022 at 10:41am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – bogus documents – tertiary education details – migration agent provided false information without consent – proactive attempts to provide correct information – academic progress – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248             

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 May 2021 to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (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.

2. The applicant appeared before the Tribunal on 7 June 2022 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

3. 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

4. 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.

5. 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.

6. 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.

7. As indicated above, on 14 May 2021 the delegate decided to cancel the applicant’s student visa. Essentially, the delegate found that the applicant’s circumstances did not comply with s 101(b) and s 103 of the Act and, accordingly, cancelled the visa under s 109 of the Act.

8. Section 101(b) of the Act states:

   101 Visa applications to be correct

   A non-citizen must fill in or complete his or her application form in such a way that:

   …

   (b) no incorrect answers are given or provided.

9. Section 103 of the Act states:

   103 Bogus 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.

10. On 24 July 2018 the applicant lodged an application for a Student (Subclass 500) visa that included the following information (applicant’s responses in italics):

    Page 8

    Education - Highest level of schooling - Give details of the applicant's highest level of schooling completed outside Australia.

    Highest level of schooling completed: Vocational qualification - Diploma or equivalent

    Course name: Diploma in Hospitality Management

    Institution name: National College of Engineering & Technology Affiliated to Punjabi University Patiala

    Country of Institution: India

    Page 14

    Declarations

    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 details on this form, and on any attachments to it. Yes

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

11. In support of her application, the applicant provided the following documentation:

    ·     National College of Engineering & Technology Mansa, Punjab - Diploma in Hospitality Management - Part I - Examination: June 2016 - Roll No. 66489531 - Sr. No. 20836144 -dated 22 September 2016

    ·     National College of Engineering & Technology Mansa, Punjab - Diploma in Hospitality Management - Part II - Examination: June 2017 - Roll No. 68511716 -Sr. No. 218362774 -dated 27 September 2017

    ·     Punjabi University Patiala - Diploma in Hospitality Management - dated 22 December 2017 - Serial No. 0634512 - Roll No. 68511716

12. In the Notice of Intention to Consider Cancellation dated 9 April 2021, the applicant was advised that the Department had conducted integrity checks on the documentation the applicant submitted in association with her student visa application. The Department advised:

    According to the National College of Engineering & Technology Mansa, Punjab website, the visa holder only completed Part I of the Diploma in Hospitality Management in 2015, not 2016 as recorded on the certificate they submitted, therefore this document does not match the College's records. Further, there was no record of the visa holder completing Part II of the Diploma in Hospitality Management.

    Also, online result checks with the Punjabi University Patiala revealed the Diploma in Hospitality Management is not listed on their website as a course provided by them.

13. In the submissions to the Tribunal and in the hearing, the applicant confirmed that she did not do any of the courses as described. She confirmed that she had undertaken a Bachelor of Commerce with Kurukshetra University, Haryana and had completed 3 semesters of the course in 2018. The applicant claimed that her agent in India provided false information without her knowledge.

14. In respect to the above, the Tribunal accepts the information and finds that the applicant did not comply with s 101(b) of the Act where she gave incorrect answers on pages 8 and 14 of her student visa application as described above.

15. The Tribunal accepts the above information and finds that the applicant did not comply with s 103 of the Act as bogus documents as described above were provided with her student visa application.

16. Accordingly, the Tribunal finds that the applicant did not comply with s 101(b) and s 103 of the Act when she applied for her student visa on 24 July 2018.

    Should the visa be cancelled?

17. 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).

18. 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 Migration Regulations 1994 (Cth). 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.

19. 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.

20. The Tribunal’s assessment of all the prescribed circumstances as set out in reg 2.41 is as follows:

    The correct information

21. The correct information is that the applicant did not do any of the courses as described above. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    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

22. The Tribunal finds that the decision to grant the applicant a student visa was based partly on incorrect information and partly on the bogus documents as described above. The Tribunal gives this consideration high weight against the applicant.

    The circumstances in which the non-compliance occurred (reg 2.41(d))

23. In the hearing, the Tribunal discussed the circumstances in which the non-compliance occurred. The written submissions to the Tribunal stated:

    24. The applicant’s visa was cancelled because her agent provided false information in support of her student visa application. Neither the applicant nor her parents were aware that the agent had provided false information. Upon receiving the notice of intention to cancel from the department on 9 April 2021, the applicant made an FOI application to ascertain what information the Indian agent had lodged. She first became aware of the false information upon receiving the notice from the department. What motivated the agent to provide false information is unknown, but it is a common practice with rogue agents and even unregistered agents in India to supply false documents of their own volition in order to enhance the chance of a visa being approved and then using the approval as a marketing tool to promote their business success and receiving monetary commissions from schools in Australia based on fees paid by the student. The commissions received are directly dependant on the student visa being approved.

    25. The applicant having completed 2 years of a bachelor’s degree and having passed all her subjects at university level, was more than likely to have been granted her student visa without the provision of any false information. The applicant had a strong academic history at a Bachelor level and had a proven academic history having passed all academic years for her bachelor’s degree.

    26. Her statement of purpose dated 2 July 2018 (which was never submitted by the agent) makes no mention of the courses which her agent alleged she had completed in India and it is clear that she has not provided any false information in her own statement of purpose. Her statement only refers to her high school and bachelor studies in India and makes no mention of any other courses. This is strong and compelling evidence that the applicant did not intend to provide any false information and had no knowledge of the courses referred to by her agent. If she had intended to deceive the department then she would also have referred to the said courses in her statement of purpose, but she did not do this. there are a number of matters that support the conclusion that the applicant’s agent and not the applicant herself, provided false and misleading information in support of the visa application:

    • The email address on the application does not belong to the applicant.

    • The mobile number on the application does not belong to the applicant.

    • The applicant did not own a mobile or a computer or any other electronic communication device before coming to Australia.

    • The application neglected to refer to the applicant’s brother as a family member.

    • The school where the applicant was said (by her agent) to have studied a diploma of hospitality between 2015-2017 was located in Punjab which is 400klm away (and a 5 hr drive each way) from Haryana where the applicant lived. The applicant has bever been to Punjab or travelled outside her village.

    • The false qualifications submitted by the agent show that the applicant completed the said courses between 2015-2017, however in 2015 and 2016 the applicant was still completing her high school studies in Haryana and in 2017 she was completing her 1st year of a Bachelor of Commerce degree in Haryana.

24. In the hearing, the Tribunal also received further information from the applicant about the circumstances of this matter. In her evidence, the applicant indicated that she comes from a “more traditional” background. That is, the applicant indicated that she was not allowed to make her own decisions and came from a controlling family background. She indicated that, because of this, she was not directly involved in the engagement of the agent to submit her student visa application, and had no genuine opportunity to proactively check what the agent claimed he did on her behalf. The applicant indicated that she lived with her relatives when she first got to Australia, but now she is living independently with friends.

25. In discussing these issues with the applicant, the Tribunal accepts that the circumstances as put forward by the applicant are credible. The Tribunal accepts that the false information and bogus documents in respect to the applicant’s educational background were provided by her agent and without her knowledge. The Tribunal accepts that the applicant’s undertaking a Freedom of Information application to ascertain exactly what information had been provided in her student visa application, strongly suggests that she was not aware of the information that had been provided on her behalf. The Tribunal accepts that the applicant comes from a controlling family background and that this appears to be a significant factor as to why she was not directly involved in the engagement of the agent to submit her student visa application, and why she did not have a genuine opportunity to proactively check what the agent claimed he did on her behalf. The Tribunal has given weight to the applicant’s relatively young age and apparent immaturity.

26. In summary, there are concerning issues at play in this matter. In no way does the Tribunal condone the provision of false information in the student visa application. However, the Tribunal has significant concerns about the impact of the applicant’s relative youth, immaturity and, what appears to be, some aspects of coercive control in respect to the manner in which the student visa application was made.

27. In balancing the above circumstances, the Tribunal has decided to give the applicant the benefit of the doubt. In making this decision however, the Tribunal requests that the Department continue to monitor this applicant for any future transgressions in respect to her studies and compliance with any visa conditions or the requirements of any future visa applications. Accordingly, the Tribunal gives this consideration high weight in favour of the applicant.

    The present circumstances of the visa holder (reg 2.41(e))

28. The visa holder is currently lawfully onshore as a holder of a Bridging Visa E. She does not have any accompanying dependents on the student visa. Accordingly, the Tribunal gives no weight in the applicant’s favour.

    The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act (reg 2.41(f))

29. The Tribunal is satisfied that when the Department made the applicant aware of the circumstances of this matter, there is evidence to suggest that the applicant made proactive attempts to provide correct information to the Department and the Tribunal. Accordingly, the Tribunal gives this matter some weight in the applicant’s favour.

    Any other instances of non-compliance by the visa holder known to the Minister (reg 2.41(g))

30. There is no other information before the Tribunal indicating other instances of non-compliance. Accordingly, the Tribunal gives this no weight in the applicant’s favour.

    The time that has elapsed since the non-compliance (reg 2.41(h))

31. The non-compliance occurred when the applicant applied for the student visa on 24 July 2018. The time that has elapsed since the non-compliance is now nearly four years. The Tribunal gives this consideration some weight in the applicant’s favour.

    Any breaches of the law since the non-compliance and the seriousness of those breaches (reg 2.41(j))

32. There is no information before me to indicate that the applicant has breached any laws since the non-compliance. The Tribunal gives this consideration no weight in the applicant’s favour.

    Any contribution made by the holder to the community (reg 2.41(k))

33. There is no specific information before the Tribunal to suggest the applicant has made a contribution to the Australian community. Accordingly, the Tribunal gives this no weight in the applicant’s favour.

    Whether there are persons in Australia whose visas would, or may, be cancelled consequentially

34. There are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act. Accordingly, the Tribunal gives this factor no weight in the applicant’s favour.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

35. The applicant made clear to the Tribunal that she does not fear returning to India. Accordingly, there is no information before the Tribunal to indicate the circumstances of this case are such that would engage Australia’s international obligations. Accordingly, the Tribunal gives this factor no weight in the applicant’s favour.

    Whether there are mandatory legal consequences to a cancellation decision

36. If the student visa is cancelled the applicant would become an unlawful non-citizen and could be liable for detention under s 189 and removal under s 198 of the Act if she does not voluntarily depart. In addition, the cancellation could also place a limitation under s 48 of the Act which means that the applicant will have limited options to apply for further visas in Australia. In addition, the applicant may not be able to satisfy Public Interest Criterion 4013 and therefore the applicant may not be able to be granted a further temporary visa for a period of three (3) years. Accordingly, the Tribunal gives this factor no weight in the applicant’s favour.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

37. The applicant’s representative provided the following submissions:

    The applicants study history shows that she has passed all subjects undertaken and has not at any stage remained without enrolment in a course of study.

    The applicant was born in India and came to Australia at the age of 20yrs in order to pursue study and to secure a better life for herself. She comes from a small village in India and her parents are of modest means. Her father is a farmer, and her mother takes care of the household. She has an older sister and one younger brother who lives with her parents in India. Her parents are still paying the mortgage on the farm which was used to raise the funds to pay for her education. Prior to coming to Australia, the applicant had never travelled outside of her village. She is now 24 years of age and single and lives in rented accommodation in Victoria.

1. In the hearing, the applicant indicated that if her student visa was cancelled and she returned to India, she would be required to get married and be a housewife. The applicant indicated that she accepts that on her return to India, she will get married and be a housewife – as this is the culture and her family’s expectation of her. The applicant made clear that a significant goal for her in obtaining an education in Australia was so she could marry “better” on her return to India. That is, she felt that she did not want to marry a man who would mistreat her. She claimed that this was the situation in her family background, and she did not want to live a life for herself subject to that situation.

2. Accordingly, the Tribunal accepts that the applicant would face significant hardship should her student visa be cancelled, and the Tribunal gives this factor high weight in the applicant’s favour.

   Any other relevant matters

3. There are no other relevant matters for the Tribunal to consider.

   CONCLUSION

4. In balancing the above circumstances, the Tribunal finds the reasons not to cancel the visa outweigh the reasons to cancel. In making this decision however, the Tribunal requests that the Department continue to monitor the applicant for any future transgressions in respect to her studies and compliance with any visa conditions or the requirements of any future visa applications.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   Joseph Lindsay
   Member

   
   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

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

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

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

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   103Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.