Simrandeep Singh (Migration)

Simrandeep Singh (Migration) [2023] AATA 2038 (13 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Simrandeep Singh
REPRESENTATIVE:  Mr Ashutosh Sharma (MARN: 1682588)
CASE NUMBER:  2204562
HOME AFFAIRS REFERENCE(S):          BCC2022/318402
MEMBER:Gabrielle Cullen
DATE:13 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 13 June 2023 at 3:22pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – genuine access to funds – education history – employment history – bogus document – bank statements – academic certificate – employment reference letter – consideration of discretion – grant of visa based on incorrect information – circumstances in which the non-compliance occurred – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 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 applicant is a national of India. On 24 September 2021 he made an application for a Student (Higher Education Sector) (Subclass 500) visa. On 26 October 2021 he was granted the visa valid to 29 May 2024. He arrived in Australia on a Subclass 500 visa on 25 December 2021.
On 8 March 2022, the delegate sent the applicant by email a Notice of Intention to Consider Cancellation (NOICC) of his Student visa under s 109 of the Act and informed him that a response must be provided in writing within 14 calendar days after he was taken to have received the letter.
On 22 March 2022, the applicant provided a response to the NOICC in the form of an email.
On 28 March 2022, the delegate cancelled the applicant’s Student visa under s 109 on the basis that he had not complied with s 101(b) and s 103 of the Act on the basis of information and documents provided to the Department. A no study condition was placed on his Bridging visa on 4 April 2022.
On 29 March 2022, the applicant applied to the Tribunal for a review of that decision and attached the decision of the Department.
On 30 March 2023 the Tribunal invited him to appear before the Tribunal by video link on 22 May 2023 at 9.30 am to give evidence and present arguments relating to the issues arising in his case.
On 12 April 2023 the Tribunal wrote to the applicant informing him of the existence of a s 375A non-disclosure certificate issued by the Department on 31 March 2022 and attached the certificate. The letter noted the following:
Release of the material is prevented by s 375A of the Act.
The Tribunal’s preliminary view is that the certificate contains a valid ground of public interest immunity not to disclose the information. The certificate is attached to this correspondence.
It invited him to comment on the validity of the s 375A certificate by 22 May 2023 and advised he would also be given an opportunity at the hearing on 22 May 2023 to discuss this matter and provide oral submissions.
The applicant appeared before the Tribunal via video on 22 May 2023 to give evidence and present arguments. His representative attended the hearing.
He was given until 29 May 2023 to respond or comment in writing, following the Tribunal outlining the gist of the information protected by the s 375A via s 359AA.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Section 375A certificate of non-disclosure
The Tribunal wrote to the applicant advising that there is a s 375A certificate on the Department’s file which it considered is valid. At the hearing the Tribunal advised that it considered the certificate to be valid. It referred to its previous letter sent to the applicant in regard to the certificate which outlined the reasons given by the Department for the certificate. The applicant said he had no issue with the validity of the certificate.
The Tribunal outlined at hearing, via the process outlined in s 359AA, the information it covered in general with regard to integrity checks being undertaken that indicate that the applicant provided incorrect information in his application and non-genuine documents as to his employment, education and money held by his father with ICICI Bank.
The applicant responded at hearing as outlined further below and requested further time to comment or respond in writing. He was given until 29 May 2023 as requested.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
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.
Did the notice comply with the requirements in s 107?
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 non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) and s 103.
The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 28 March 2022. The information indicates that on 24 September 2021 he applied online to the Department for a Student (Higher Education Sector) (Subclass 500) visa to undertake a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Advanced Diploma of Hospitality Management. It notes he was assessed by the delegate as meeting all the relevant criteria and a Student visa was granted on 26 October 2021 valid to 29 May 2024.
The Department decision notes that in the NOICC dated 8 March 2022, the delegate set out the particulars of the non‑compliance.
In particular the delegate noted the applicant on page 7 of the application form, under the heading Genuine Temporary Entrant provided the following information (in bold):
Give details to support the applicant’s ability to meet the criteria and ensure supporting documents are attached:
I have attached my academic documents and explained my intentions to study in Australia in the attached Statement of purpose.
The delegate noted that on page 7 of the application form, under the heading Funding for Stay he provided the following information (in bold):
Do all the applicants in this application confirm they each have access to sufficient funds to support themselves for the total period of stay in Australia and understand that further evidence of funds may also be requested?
Yes
Show how each applicant included in the application will support themselves in Australia to meet living, tuition and school costs. Select any that apply.
Other Financial Support
Give details:
My parents have paid my 1st term tuition fees and OSHC. My parents are sponsoring my studies in Australia and have sufficient funds to cover the cost of my tuition fees and living expenses.
The delegate noted that on pages 7–8 of the application form, under the heading Highest level of schooling and Education History he provided the following information (in bold):
Highest level of schooling completed      Secondary school – Year 12 or equivalent
Course Name                Senior Secondary
Institution Name               Punjab School Education Board
Country of institution             India
Has the applicant completed, or is currently enrolled in any other studies or training outside Australia?   No
The delegate noted that on pages 8–9 of the application form, under the heading Employment History, he provided the following information (in bold):
Employment Status             Employed
Is this the applicant’s current employment situation Yes
Organisation Name             Hotel Zaildar
Industry type                 Accommodation and Food Services
Country                   India
Address                  NH44 National Highway Basantpura
Punjab140401
Contact Person within the organisation     Chirag Bhardwaj
Business Phone               00916239302867
Position Details               Guest Relation Officer
Date From                 01 January 2020
The delegate noted that in support of his application for the Student visa, he submitted the following documents as evidence of his claimed employment history, as well as study history and funds held by his father:
·A Statement of purpose, where he made the following statements:
I joined a Diploma in Hospitality Management and completed that in December 2019 from a reputed institute near my home. This was not a specialized [sic] hotel management school but helped me with the basics.
My studies are being sponsored by my family. My father Sahab Singh is retired from Army and now works in ESIC department (Employee’s State Insurance Corporation). …. In addition to that he has over 22,00,000/- in his fixed deposit with ICICI Bank Ltd.
·Certificate from Technobrainz Institute of Technical & Vocational Training stating his successful completion of a Diploma in Hospitality Management dated 30 January 2020
·Letter from ICICI Bank, Caliber Market branch dated 01 October 2021 stating Sahab Singh is holding fixed deposits of INR 12,00,000 account number 047710001530
·Letter from ICICI Bank, Caliber Market branch dated 01 October 2021 stating Sahab Singh is holding fixed deposits of INR 10,00,000 account number 047710001529
·Letter from Hotel Zaildar in Basantpura, Punjab, India (Ref HZ/0463) dated 20 September 2021 confirming employment as a Guest Relation Officer for time period 01 January 2020 to date, and confirming salary of 12000, signed by the Human Resources Manager.
The delegate noted that on page 14 of the application form under the heading Declarations he submitted his agreement to the below declarations (quoted in part):
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 subsequently be cancelled.
Yes
The Department’s Decision Record indicates that based on the information provided by the applicant in his visa application form and the supporting documents provided, he was granted the Student (Higher Education Sector) (Subclass 500) visa on 26 October 2021 valid to 29 May 2024.
The Department’s Decision Record[1] indicates that:
On 25 January 2022, integrity checks were conducted by the Department’s New Delhi post. These integrity checks investigated the education, financial and employment information provided in your application including the authenticity of documents. The integrity checks provided the following results:
·Technobrainz is a visa consultancy business which provides vocational education in technical field of computer hardware networking, mobile repair, laptop repair and software education. It does not provide courses in Hospitality Management.
·The ICICI Bank statement documents have integrity issues as they contain features that are not consistent with genuine documents from financial institutions and is therefore deemed as non-genuine.
·Hotel Zaildar in Basantpura, Punjab, India has confirmed that you were employed as a cashier (night shift) and did not perform the duties as claimed in your application. The signatory of the letter is not authorised to issue documents as she was also employed as a cashier. The duration of employment claimed and the salary claimed in the document does not match with the information provided by the owner. The business/hotel does not have a HR area or HR Manager.
[1] As also outlined in the NOICC
The delegate considered the applicant’s response to the NOICC received on 22 March 2022 which is as follows:
As stated in my GTE, I explained my intentions to study in Australia. I was filled with excitement and looked forward to the journey filled with knowledge. However, I never knew that it was not going to be easy but will be filled with unexpected hurdles which I could not have imagined. The following are the explanations of the allegations raised in the notice of intention to consider cancellation:
Subsequent information received by the Department
On 25 January 2022, integrity checks were conducted by the Department’s New Delhi post. These integrity checks investigated the education, financial and employment information provided in your application including the authenticity of documents. The integrity checks provided the following results:
·Technobrainz is a visa consultancy business which provides vocational education in technical field of computer hardware networking, mobile repair, laptop repair and software education. It does not provide courses in Hospitality Management.
Explanation: Technobrainz Registered Under MSME Ministry of Micro Small & Medium Enterprises, Govt. of India (Udyog Aadhar No. PB17D0008993) & leading in internationally renowned Trademark by Govt. of India. ISO 9001:2015 “Internationally Certified, whose primary object is to provide quality Education. Technobrainz has been working in the field of Computer Hardware Networking, Mobile & Laptop Repair & Software Education since 2006.
Technobrainz Training Institution is established with a view to give best Training to students and also to provide latest technology introduced day by day. The academic standard is high and students receive individual attention in small batches. The teaching staff is highly qualified to ensure the success of students. Institute’s own placement cell helps good performance students to place in national or international companies like IBM, HCL, HP, Dell and Wipro etc.
Technobrainz provides education to the student in two ways. First Training in Institution and Second Professional Field Training. This process will help the students to gain more confidence and we offer topical new field of study which encourage one to achieve their goals.
Few good reasons to choose Technobrainz
·Updated Study Material.
·Excellent Teaching and Learning Resources.
·Experienced and Committed Faculty.
·Low Student to Faculty Ratio.
·Future Support available for Students.
·Competitive fees.
A screenshot from the website was provided which indicated that Diploma in Hospitality Management is a course. He provided a link to the website where the Diploma could be validated and verified.
The applicant also submitted that:
Technobrainz offer a variety of courses. These include courses for matric and above students, courses for engineers as well as Short term courses to improve skills & knowledge in any field.
They Provide:
·Provide Diploma in Hardware & Networking
·Provide Spl. Training in Electronics & Mobile Repair & Laptop Repair
·Provide Training in Electronics & Chip Level Repair
·Provide Software Courses
·Provide IT Courses
·Provide Management Courses (Diploma in Office Management, Hospitality Management, Business Management etc.)
·Provide Industrial Training for IT students.
·Provide Training for Govt. Employees.
·Provide Professional Field Training.
·Provide 100% JOB Placement.
Quality of education:
The company:
·Provides high-quality learning aids – including Study Materials to the students. These are developed specially by the company.
·Supports Classroom Teaching with assignments, workshops & guide projects.
·Ensures that its course curriculum is as per the needs of the industry & is always kept updated.
·Carries out regular Training & certification of its faculty to ensure that they are able to handle even advanced IT topics.
·Conducts workshops/live field Training for the students to help them in get better Job Placements.
Conclusion:
Technobrainz is a visa consulting organisation that also provides diploma courses in management, accounting, design and software. They offer diploma in hospitality management under management and my diploma can be validated on the website ( under Diploma record. (Please find the attached letter from Technobrainz for your reference)
(2) Subsequent information received by the Department
The ICICI Bank statement documents have integrity issues as they contain features that are not consistent with genuine documents from financial institutions and is therefore deemed as non-genuine.
Explanation: I am providing you with the confirmation from the bank that the financials provided in my application are genuine. They have confirmed that the balance certificates were issued by their branch and also the format of those balance certificates were not of their standard format but were customised as per the client’s request. Regardless of the format, the information related to account numbers and amount in those balance certificates is genuine. (Please find the attached letter from the bank for your reference)
(3) Subsequent information received by the Department
Hotel Zaildar in Basantpura, Punjab, India has confirmed that you were employed as a cashier (night shift) and did not perform the duties as claimed in your application. The signatory of the letter is not authorised to issue documents as she was also employed as a cashier. The duration of employment claimed and the salary claimed in the document does not match with the information provided by the owner. The business/hotel does not have a HR area or HR Manager.
Explanation: I am providing you with the letter from Hotel Zaildar stating that I had worked as a full time Guest Relation Officer and as other Multitasker my duties included like cashier, cook and I was also working in night shifts and managing overall services of the guest. This letter has been provided by one of the owners of the Hotel. He also mentioned that information provided by me from the hotel to the department is the same as I mentioned in the reference letter provided now to Mr Simrandeep Singh. (Please find the attached letter from Hotel Zaildar).
The above three mentioned issued were raised and I have provided detailed explanation in regard to that. I am pretty sure that it could be identity mistaken, and the information collected by the department could belong to someone else. I undertake the oath that all the documents that I have provided are true to my knowledge and I should be held responsible in regard to those. Except these documents if the lodgement agent in India (Agent who lodged my visa application) has provided any other documents which I am not aware, should be told to me as I do not want to my career because of someone.

The applicant noted he was currently progressing in his course and will finish it in the expected time and wants to achieve his goals and academic achievements.
He also provided the following documents submitted in the response to the NOICC:
·     Letter from Parveen Kumar, Managing Director, Technobrainz Institute of Technical & Vocational Training, dated 12 March 2022. The letter states the visa holder successfully completed a Diploma of Hospitality Management, being a one year course from 1 January 2019 to 31 December 2020. The letter advises that the College issued the Diploma of Hospitality Management and it is genuine. It provides the website for diploma verification ( ) and confirms that the organisation offers a Diploma in Hospitality Management course.
·     Letter from ICICI Bank, Caliber Market branch dated 16 March 2022 stating Sahab Singh had availed two Balance Certificate letters from ICICI Bank, Caliber Market branch for accounts 047710001530 and 047710001529. The letter notes the balance certificates were issued by the branch on request of their customer and are genuine. This letter also states “We also confirm that the format of those balance certificates were not of our standard format but were customised as per the client’s request. Regardless of the format, the information related to account numbers and amounts in those balance certificates are genuine.”
·     Letter from Chirag Bhardwaj, Co-Owner, Hotel Zaildar in Basantpura, Punjab, India dated 15 March 2022 confirming the visa holder’s employment as a Guest Relation Officer which “included multitasking which included duties like cashier, cook, night shift and managing overall services of the guests”. The letter confirms the salary of INR 12000 and further states that the previous experience letter “was issued under my consent”. Mr Bhardwaj notes in the letter that they are re-verifying the applicant was their employee and that the previous letter was issued under his consent which is the same thing he told the officer when they called him.
The delegate considered that the applicant had not complied with s 103 as he had submitted bogus documents being the following:
·     Certificate from Technobrainz Institute of Technical & Vocational Training stating successful completion of a Diploma in Hospitality Management dated 30 January 2020
·     Letter from ICICI Bank, Caliber Market branch dated 1 October 2021 stating Sahab Singh is holding fixed deposits of INR 12,00,000 account number 047710001530
·     Letter from ICICI Bank, Caliber Market branch dated 1 October 2021 stating Sahab Singh is holding fixed deposits of INR 10,00,000 account number 047710001529
·     Letter from Hotel Zaildar in Basantpura, Punjab, India (Ref HZ/0463) dated 20 September 2021 confirming employment as a Guest Relation Officer for time period 1 January 2020 to date, and confirming salary of 12000, signed by the Human Resources Manager.
Based on this information, the delegate found that the applicant had not complied with s 103 of the Act because he provided documents to the Department that were counterfeit or had been altered by a person who did not have authority to do so and therefore his Student visa was liable to be considered for cancellation under s 109 of the Act.
The Department’s Decision Record indicates that the delegate found that the applicant had not complied with s 101(b) of the Act because he had provided incorrect answers as to his past education, past employment and as to access to funds from his parents to support his study in Australia. The delegate found that his Student visa was therefore liable to be considered for cancellation under s 109 of the Act.
At hearing the Tribunal discussed with the applicant the non-compliance as described in the s 107 notice, in relation to the Subclass 500 Student visa. It also raised with him via s 359AA the gist of the information referred to in the s 375A non-disclosure certificate. It referred to the reasons why the Department did not believe the education certificate was genuine or the information he provided and the bank statements are not genuine details of the phone conversation with the hotel where the employment letter was from and that this was contrary to a further letter he submitted. It raised with him the concern he had provided incorrect information and bogus documents in the manner particularised in the s 107 Notice.
It noted the no study condition placed on his visa from 4 April 2022 and advised it did not rely on or draw any adverse inference as to any information before the Tribunal as to his lack of study or course completion since or around that time.
The applicant responded orally at hearing and said the allegations are wrong and he gave the correct information. He said he completed the Diploma of Hospitality; his father has 30 Lakh in the bank, and he worked at the hotel as claimed. The Tribunal referred to the information raised via s 359AA as to discussions with the hotel, particularly its owner Mr Chirag Bhardwaj and raised concerns as to the genuineness and the weight to be placed on this further letter from the hotel in response to the NOICC. It also referred to concerns with the further letter from ICICI Bank that the previous documents are genuine. Where relevant these concerns are outlined below.
The applicant said he is currently working in Australia in a steel company. The Tribunal asked him why he enrolled in the cookery and hospitality courses, and he said he wanted to open a restaurant on return to India. It asked him why he was not working in this area if that was his career aim and he said he previously had worked as a kitchenhand for five to six months in an Indian restaurant in Melbourne and there was no longer much availability in that area due to the recent immigration.
It raised with him the relevance of the information to the grant of the visa, in particular with regard to cl 500.212 and Ministerial Direction No. 69, being the genuine temporary entrant criteria and the genuine access to funds and financial capacity criteria under cl 500.214.
It asked him questions with regard to the discretionary criteria and his responses are outlined below.
When asked if he had anything to add, he answered in the negative. His representative requested one week to respond.
On 30 May 2023 he provided further documents:
·The employment reference letter dated 20 September 2021 the subject of the s 107 notice and submitted with his application for the Student visa.
·Statement of Account from ICICI Bank in the name of Mr Sahib Singh from 1 October 2021 to 31 December 2021 showing a balance of 44.18Rs, evidencing the withdrawal and deposit of the 10,000Rs and 12,000Rs sums, showing the fixed deposit amounts.
·Letter from ICICI dated 16 March 2022 from Poonam Chopra, Relationship Manager, confirming the deposits of 10,000Rs and 12,000Rs are genuine, submitted with his response to the NOICC.
·Evidence the applicant achieved the Diploma of Hospitality Management at Technobrainz and his Secondary School Certificate dated 5 October 2018.
Consideration
In determining whether the applicant has provided incorrect information and bogus documents in his Subclass 500 visa application as identified and particularised in the s 107 notice, the Tribunal has considered the evidence before it as follows.
The applicant has repeatedly indicated that the information in the application is correct and documents submitted with his application are correct and genuine.
As to information provided by the applicant and the Certificate he provided from Technobrainz Institute of Technical & Vocational Training relating to his successful completion of a Diploma in Hospitality Management dated 30 January 2020, the applicant has said that he genuinely studied this course. The information from the Department is that on 25 January 2022 the website for the education provider, Technobrainz was not operational and a check on Facebook revealed that its business is to provide vocational courses in the technical field of computer hardware networking, mobile repair/laptop repair and software education and it does not provide courses in hospitality management. The applicant in his NOICC response provided a website screenshot and information about Technobrainz Training Institute, showing this education institute provides management courses, including the course Diploma of Hospitality Management. The Tribunal accessed this website and it indicates they offer for study, a Diploma of Hospitality Management. The delegate was concerned as the Technobrainz website lacked detail about this course. However, this has since been amended. The Tribunal places more weight on the actual website rather than on the Facebook check of the Department on 25 January 2022. It therefore does not reasonably suspect, within the meaning of s

5(1) that the Certificate from Technobrainz Institute of Technical & Vocational Training stating the applicant’s successful completion of a Diploma in Hospitality Management dated 30 January 2020 is a bogus document or that incorrect answers have been given as to his education history regarding studying and successfully completing this course.
As to information regarding his employment, the applicant provided in his application information that he was the Guest Relations Officer at Hotel Zaildar from 1 January 2020 to the date of the application. He also provided a letter from Hotel Zaildar Punjab, India dated 20 September 2021 confirming employment as a Guest Relation Officer from 1 January 2020 to the date of the letter and confirming that his salary is 12000INR. The letter is signed by the Human Resources Manager with the signatory being Ms Priyanka Verma. It also outlines duties he undertakes in this role including allocating rooms to guests, coordinating with housekeeping, cooking, washing the dishes, purchasing ingredients, preparing recipes and coordinating with waiters. As noted in the NOICC, an integrity check by the Department with the hotel noted Hotel Zaildar in Basantpura, Punjab, India confirmed that while the applicant was employed with them, it was as a cashier (night shift) and he did not perform the duties other than being a cashier as claimed in the application and relevant letter submitted with his application, the owner of the hotel advised that the signatory of the letter is not authorised to issue documents as she was also employed as a cashier, and that the duration of employment claimed and the salary claimed in the document does not match with their records and the hotel does not have a HR area or HR Manager. As raised with the applicant via s 359AA at hearing the information indicates the Department in conducting its integrity check contacted Mr Chirag Bhardwaj, the owner of the hotel who provided the information that was outlined in the s 107 Notice. The Tribunal via s 359AA also raised with the applicant the content of the Department’s conversation with Mr Chirag Bhardwaj which was summarised in the s 107 Notice. In the response the applicant provided a letter from Mr Chirag Bhardwaj, Co-Owner, Hotel Zaildar in Basantpura, Punjab, India dated 15 March 2022 confirming the visa holder’s employment as a Guest Relation Officer which “included multitasking which included duties like cashier, cook, night shift and managing overall services of the guests”. The letter confirms the salary of INR 12000 and further states that the previous experience letter “was issued under my consent”. Mr Bhardwaj notes in the letter that they are re-verifying the applicant was their employee and that the previous letter was issued under his consent which is the same thing he told the officer when they called him. At hearing the applicant said the information is genuine.
However, the Tribunal does not accept, for the reasons that follow, the applicant’s explanation and supporting documentation as evidence that he was employed in the manner claimed as a full-time Guest Relations Officer, undertaking all the activities outlined in the letter attached to the application, other than being a cashier. The Tribunal places significant weight on the evidence as outlined in the s 107 notice of the integrity check conducted by them with the hotel, specifically one of its owners, Mr Chirag Bhardwaj. It is the view that the second letter from the hotel signed by Mr Chirag Bhardwaj confirming that the first letter submitted with his application is genuine and re-verifying the applicant was their employee and that the previous letter was issued under his consent which is the same thing he told the officer when they called him, is inconsistent with evidence Mr Chirag Bhardwaj personally gave the Department in the integrity check. Due to the inconsistency the second latter from Mr Chirag Bhardwaj does not overcome the original evidence provided by Mr Chirag Bhardwaj personally to the Department that he did not work at the hotel as Guest Relations Officer in the manner claimed. The Tribunal is therefore of the view the applicant has provided incorrect information in his application for the Student visa pertaining to his employment at Hotel Zaildar as Guest Relations Officer and in the manner claimed. It therefore finds there has been non-compliance with s 101(b) in the way described in the notice.
The Tribunal also finds on the evidence before it that there is a document, being the letter from Hotel Zaildar, submitted with his application for the visa that contains false and misleading information as to the applicant’s role, duration of employment and salary at the hotel that was issued by a person who did not have authority to do so and who was not the Human Resources Manager. Therefore, the Tribunal reasonably suspects that the letter is counterfeit, in that it is produced to imitate a genuine employment letter which it is not. The Tribunal finds that the letter is counterfeit within the meaning provided by paragraph (b) of

s 5(1) of the Act and the applicant has given, or caused to be given, a bogus document within the meaning of s 5(1) in relation to this document. It therefore finds there has been non-compliance with s 103 in the way described in the notice.
As to the letters from ICICI Bank regarding fixed deposits held by his father as outlined in the s 107 notice, the applicant has consistently indicated that these are genuine documents. In his response to the NOICC he referred to the subsequent letter from the bank noting that the balance certificates were issued by their branch and also the format of those balance certificates were not of their standard format but were customised as per the client’s request and that they are genuine. After the hearing he submitted a Statement of Account from ICICI Bank in the name of his father from 1 October 2021 to 31 December 2021. The Tribunal however places significant weight on the evidence from the integrity check that the ICICI Bank statement documents have integrity issues as they contain features that are not consistent with genuine documents from financial institutions in India and they are therefore deemed as non-genuine. It has considered the response but views as of concern that the subsequent letter from the bank submitted in response to the NOICC is signed by the same person. It has also considered the applicant’s evidence that the documents are genuine as are the subsequent bank statement submitted following the hearing confirming these deposits, but is of the view these do not overcome its concern from the evidence from the integrity check and places no weight on them. It has difficulty accepting the claim that the bank would provide letters not in a standard format as argued. The Tribunal therefore finds that it reasonably suspects that the letters dated 1 October 2021 issued with respect to money deposits held by the applicant’s father, Sahab Singh can be described as documents that are made to imitate and pass for something else other than a genuine representation of funds held by the applicant’s father with ICICI at that time. It therefore finds that these are documents that the Tribunal reasonably suspects are counterfeit or have been altered by a person who does not have authority to do so. It follows that it finds that these two letters are bogus documents as defined in s 5(1)(b) of the Act. It therefore finds that the applicant has caused bogus documents to be given. It follows that there has been non-compliance by the applicant within s 103 of the Act in the way described in the notice.
It follows that, for the reasons above, that he provided incorrect information that his parents have sufficient funds to support in Australia as it has found the supporting documentation submitted with the application are bogus documents within the meaning of s 5(1). It is of the view if his parents had sufficient funds to cover the cost of his tuition fees and living expenses he would not need to provide bogus documents as to his father’s finances. The Tribunal has considered all the evidence including in his response to the NOICC, his oral evidence at hearing and the following statement submitted after the hearing to show his father had the funds claimed but places more weight on the evidence of the integrity check undertaken by the Department. It therefore finds the applicant provided incorrect answers in the application that his parents had sufficient funds to cover the cost of his tuition fees and living expenses.
For the above reasons, the Tribunal finds that there was non-compliance with s 101 as to his employment and s 103 as to the bank documents and access to funds 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 Migration Regulations 1994 (Cth) (the Regulations). The Tribunal has considered each of the circumstances as follows.
The Tribunal raised these with the applicant at hearing and the evidence provided as well as written evidence submitted is considered below.
The correct information
The correct information is that the applicant did attend and successfully complete the Diploma of Hospitality Management at Technobrainz as outlined in his application. The Tribunal accepts that this would have been relevant to whether he met the genuine temporary entrant criteria. The Tribunal considers that this weighs in favour of the exercise of the Tribunal’s discretion not to cancel the visa.
As to his employment with Hotel Zaildar the correct information is that he did not work as Guest Relations Officer undertaking all the activities claimed in his reference letter submitted with his application. The Tribunal has considered the subsequent information and letter he has provided but found he has provided incorrect information in and with his application as to his role and the majority of activities undertaken, as well as his duration of employment and salary at Hotel Zaildar. Rather, the correct information would show that he was employed as a cashier in the night shift and only undertook duties as a cashier, with the correct salary and duration of employment. The applicant’s claimed employment as Guest Relations Officer, as opposed to being the cashier, in an area relevant to his proposed study being in hospitality management would have been relevant and probative evidence when accepting the applicant met the genuine temporary entrant criterion under cl 500.212, and ultimately the grant of the Student visa. Direction 69 being the Ministerial Direction to Assess the Genuine Temporary Entrant Criteria refers to, under 12(b), the relevance of the course to the student’s past or proposed employment either in their home country or a third country in assessing this criterion.

As to his parents holding sufficient funds to cover the costs, the correct information would have been that they did not on the evidence before the Tribunal. This would have been relevant to cl 500.214, the genuine access to funds criteria, which requires an applicant to meet his costs and expenses of his intended stay in Australia. Via the Financial Capacity Instrument LIN 19/98 evidence of financial capacity can relate to money deposits.
The integrity of the migration program relies on, amongst other things, applicants providing correct information in visa application forms and in their dealings with the relevant agencies including the Department. Sections 98 to 100 reflect the seriousness of the provision of the incorrect information even in situations where there was no intention to provide incorrect information.
Overall, the Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The content of the genuine document (if any)
The Tribunal accepts that the Certificate from Technobrainz Institute of Technical & Vocational Training stating his successful completion of a Diploma in Hospitality Management dated 30 January 2020 is a genuine document. The Tribunal considers that this weighs in favour of the exercise of the Tribunal’s discretion not to cancel the visa.
With regard to his employment the Tribunal has found for the reasons above that the reference letter from Hotel Zaildar, submitted with his application for the visa contained false and misleading information as to the applicant’s role, duration of employment and salary at the hotel, that was issued by a person who did not have authority to do so and who was not the Human Resources Manager and is a bogus document within the meaning of s 5(1). The Tribunal has considered the subsequent letter and the applicant’s evidence but does not accept, for the reasons outlined, that these overcome its concern that this letter, as outlined in the s 107 Notice, is a bogus document within the meaning of s 5(1). Therefore, there is no genuine document to consider in this circumstance. The Tribunal gives this consideration neural weight in exercise of its discretion to cancel the visa.
The Tribunal has also found above that the letters dated 1 October 2021 issued with respect to money deposits held by the applicant’s father, Sahab Singh are bogus documents as defined in s 5(1)(b) of the Act. Genuine documents would not show the applicant’s father holding fixed deposits of 12,00,000INR and 10,00,000INR with ICICI Bank, Caliber Market Branch as 1 October 2021. The Tribunal has considered the subsequent letter and statement confirming the deposits above as well as his oral evidence that the letters are genuine but does not accept for the reasons outlined that these overcome its concern that these letters, as outlined in the s 107 Notice, are bogus documents within the meaning of s 5(1). Therefore, there is no genuine document to consider in this circumstance. The Tribunal gives this consideration no neural weight in exercise of its discretion to cancel the visa.
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 applicant’s claimed employment as Guest Relations Officer, as opposed to being the cashier, as outlined in his application and in the letter from the hotel, which was above found to be a bogus document in an area relevant to his proposed study, being in hospitality management would have been relevant evidence considered when accepting the applicant met the genuine temporary entrant criterion under cl 500.212, and ultimately the grant of the Student visa. Direction 69, being the Ministerial Direction to Assess the Genuine Temporary Entrant Criteria refers to, under 12(b), the relevance of the course to the student’s past or proposed employment either in their home country or a third country in assessing this criterion.
One of the primary criteria for the grant of the Subclass 500 (Student) visa is that an applicant meets cl 500.214, the genuine access to funds criteria, which requires an applicant to meet his costs and expenses of his intended stay in Australia. Via the Financial Capacity Instrument LIN 19/98 evidence of financial capacity can relate to money deposits. The Tribunal considers that the decision to grant the visa was therefore based, in part, on the bogus documents being the letters as to his father’s fixed deposits held with ICICI Bank and incorrect information that his parents had sufficient funds to cover the cost of his tuition fees and living expenses as outlined in the s 107 notice.
The Tribunal considers that this factor weighs significantly in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The Tribunal has considered all the submissions and documents the applicant has submitted and found he did study as claimed at Technobrainz and that the attached certificate as evidence of his study is genuine. The Tribunal considers that this weighs in favour of the exercise of the Tribunal’s discretion not to cancel the visa.
However, non-compliance occurred when the incorrect information and a bogus document as to his employment and incorrect information as to his parents covering his study costs and bogus documents as to his father’s bank deposits were provided in support of the Subclass 500 Student visa application. When asked at hearing the applicant said he prepared the application and that all the documents and information provided with his application are genuine, including the information and documents the subject of the s 107 notice as to his employment and his father’s funds and that they are genuine. The Tribunal has considered all the submissions and documents the applicant has submitted but has found he has provided incorrect information and a bogus document as to his employment and that the documents indicating his father holds the fixed deposits as outlined in the letters submitted with his application are bogus documents within the meaning of s 5(1). It also found the applicant provided incorrect information in stating that his parents had sufficient funds to cover the cost of his tuition fees and living expenses. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The present circumstances of the visa holder
In his evidence to the Tribunal at hearing the applicant referred to his study in Australia and the effect that the cancellation of his visa would have on him. He notes he was enrolled to study the Certificate III in Commercial Cookery in a packaged course leading to an Advanced Diploma of Hospitality Management but was unable to study or complete any course as a no study condition was placed on his visa. The Tribunal accepts such a condition was placed on his visa and accepts he was unable to study or achieve any course progress as a result as also indicated in the PRISMS record. It draws no adverse inference or does not rely on the PRISMS record on file noting his lack of course progress as he had a no study condition placed on his visa.
He said his aim is to complete the courses and open a restaurant. He said he has wasted more time as he has been unable to complete the course. He said while he worked at an Indian restaurant previously for 5/6 months he could no longer work in hospitality as he could not find a job in that area due to the increase in immigration and is now working in a steel company.
The Tribunal accepts that he has been unable to study and achieve any course progress since the cancellation of the visa as he has a no study condition placed on his Bridging visa. It views as of concern that his reason for studying in Australia is to open a restaurant in the future when he has not continued to work in this area and questions that he could not find work in that area due to the increase in immigration. The Tribunal is of the view if he was studying in Australia for this career aim, he would continuously work in this area in Australia to gain work experience, not just for the period claimed. It is of the view this undermines he is in Australia to study. It does not accept he was unable to find employment in the area due to an increase in immigration when the unemployment rate is low and there are not many employment positions available in a relevant field to his proposed study.
The applicant said he is not currently in a relationship and has not interacted with the community.
The Tribunal gives this consideration neutral 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
Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal finds there are no other instances of non-compliance by the applicant known to the Tribunal. The Tribunal gives this factor neutral weight.
The time that has elapsed since the non-compliance
The non-compliance occurred when the application was made on 24 September 2021. While the Tribunal acknowledges that since this period the applicant has established himself in Australia, the Tribunal notes the applicant has been on notice, since being notified by the Department on 8 March 2022 that there was evidence of non-compliance with the visa application which may result in the cancellation of the visa.
In these circumstances the Tribunal gives this neutral weight.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal which suggests that there have been breaches of law by the applicant since the non-compliance.
Any contribution made by the holder to the community
At hearing the applicant indicated he had not contributed to the community. The Tribunal gives this consideration neutral weight.
Other considerations
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be any consequential cancellations under s 140
The applicant claimed to be single with no dependents. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor neutral weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled, the applicant would continue to hold a Bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however, there are some allowances in legitimate circumstances for relevant Bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under public interest criterion (PIC) 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore. There is no restriction on which visa he can apply for once he leaves Australia. However, those are also intended and legitimate consequences of cancellation.
The Tribunal gives this consideration neutral weight.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
When asked if he had anything to add and the degree of hardship that may be caused he said he wants to study to open a restaurant and that the hardship to him is that he cannot study to achieve his aim of opening a restaurant. The Tribunal accepts that there is a degree of hardship for applicants whose visa is cancelled as to the lack of obtaining Australian qualifications. However, given its concerns that he was studying for the reasons he claims, the Tribunal gives this factor neutral weight in favour of cancelling the visa. It also notes he has achieved similar qualifications in India, achieving a Diploma of Hospitality Management.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant had given incorrect information and bogus documents with his visa application and that he did not comply with s 101(b) and s 103 of the Act. The Tribunal has found that there are grounds for cancelling his visa.
It has considered that he did attend and achieve the Diploma of Hospitality Management and that this weighs in favour of the exercise of the discretion to not cancel the visa and may indicate he is a genuine student. However, of significant concern and favouring exercise of the Tribunal’s discretion to cancel the visa is that the decision to grant the visa was based on bogus documents and incorrect information as outlined above as to his father’s funds and his parents having sufficient funds to cover the cost of his tuition fees and living expenses which would have been highly relevant to whether he met cl 500.214. It is also concerned that he provided incorrect information and a bogus document as to his employment which would have been highly relevant as to whether he met the genuine temporary entrant criteria in cl 500.212.
The Tribunal also views as of concern his evidence he came to and is in Australia to study despite claiming he is in Australia to study to open a restaurant on return as he is no longer working in the area. The Tribunal rejects his claim that he is unable to obtain employment in that area for the reason he claims.
The Tribunal has considered the applicant’s circumstances individually and cumulatively. It has accepted that he has been unable to study since the cancellation of the visa due to a no study condition being placed on his visa. It therefore does not rely on any information that indicates that he has not achieved course progress as the evidence is he has been unable to study.
The Tribunal is satisfied that there are some aspects that are favourable to the applicant but is of the view there are more significant factors that weigh in favour of the exercise of the Tribunal’s discretion to cancel the visa. The Tribunal is mindful of the seriousness of providing incorrect information and bogus documents in support of an application for the visa.
The Tribunal has decided that there was non-compliance by the applicant in ways described in the notice given under s 107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Gabrielle Cullen
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.
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.

[2023] AATA 2038

13 June 2023

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