Singh (Migration)

Singh (Migration) [2022] AATA 2745 (4 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manjinder Singh
REPRESENTATIVE:  Mr Rick Gunn
CASE NUMBER:  2202934
HOME AFFAIRS REFERENCE(S):          BCC2022/88851
MEMBER:Michael Biviano
DATE:4 August 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 4 August 2022 at 4:55 pm
CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information provided in visa application and entry interview – previous visa refusal for third country not declared – discretion to cancel visa – non-compliance and responsibility conceded – application prepared and lodged by agent in home country – applicant informed agent of refusal and agent omitted it by mistake – misunderstanding of question in entry interview – otherwise assessed as genuine student and visa may have been granted in any case – continuing high-level study and some work – payment of significant tuition fees – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 98, 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 500.212
CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant gave an incorrect answer in the visa application in which it stated that he had not previously been refused an application for entry or further stay in Australia or any other country, when in fact he had been refused a student visa to Canada, in contravention of s 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 17 June 2022 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and the Migration Regulations 1994 (Cth) (the Regulations) have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The s 107 notice was constituted by the Notice of Intention to Consider Cancellation (NOICC) dated 8 February 2022. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act in the following respects:
a.On 16 January 2021, the applicant lodged an application for a Student (Subclass 500) visa and submitted the electronic form Application for a Student Visa.
b.On page 11 of the application form, under the heading Visa History, the applicant provided the following information (in bold):
Has the applicant, or any person in the application, ever had an application for entry or further stay in Australia or any other country refused , or had a visa cancelled? No
c.Furthermore, on pages 14–15 of the application form, under the heading Declarations, the applicant provided the following information:
Warning:
Giving false or misleading information is a serious offence.
The applicants declare that they:
Have read and understood the information in this application provide 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
Understands 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
d.    The applicant was granted a student visa on 30 January 2021, based on that information, as well as meeting all other relevant criteria for the grant of a student visa.
e.    The applicant arrived in Australia on 27 December 2021, and on arrival he was questioned about his student visa by an officer of the Australian Border Force (ABF). During questioning, he confirmed to the officer that he had never been to another country, or ever applied for and been refused a visa for another country.
f.   While at Melbourne Airport on arrival, his biometrics were captured and subsequent checks revealed that the Department became aware of contrary information, namely that the applicant had previously been refused a visa for entry into Canada on 28 January 2020.
g.    When questioned further by the ABF officer, the applicant admitted to the officer that he had applied for and had been refused a visa for Canada.
h.    The delegate considered that the applicant had provided an incorrect answer in his Application for a Student Visa at page 11 under the heading Visa History, where he had stated that he had not previously had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled, because on 28 January 2020 his visa application for entry into Canada was refused, as per information received by the Department on the applicant’s arrival on 27 December 2021.
i.   By answering yes to the Declarations on pages 14 and 15 of the visa application form, the applicant agreed that he had provided complete, correct and up-to-date information in his application, but he had not done so.
j.   Based on the above information, it appears that the applicant had provided incorrect answers on his student visa application and the delegate considered that he may have not complied with s 101(b) of the Act, and that his student visa may be liable for cancellation under s 109 of the Act.
The applicant by his representatives filed a Response to the NOICC in writing dated 22 February 2022 (Response). The Response relevantly admitted that he had provided incorrect information. The Response stated:
14. Mr Singh acknowledges that he has provided or caused to be provided information that is incorrect, as outlined below, and subsequently grounds for cancellation arise under s109 of the Act.
Incorrect Information – Visa Application: Canada Visa Refusal
15. An incorrect answer was provided in Mr Singh’s Student visa application to the question:
Has the applicant, or any person in the application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?
16. Mr Singh accepts that the response ‘No’ to the above question was incorrect.
17. Mr Singh further accepts that, owing to the above incorrect information, the response of ‘Yes’ to the following question was also incorrect:
The applicants declare that they:
Have provided complete and correct information in every detail on this form, and on any attachments to it?
18. Mr Singh instructs that his student visa application was prepared and submitted on his behalf by ‘Bright Route IELTS & Immigration Services’ in Moga, India, to whom he provided all relevant information including (crucially) the refusal of his Canadian visa application. Mr Gurjant Singh of Bright Route IELTS & Immigration Services, the migration agent (although not, we understand, a Registered Migration Agent with OMARA) who prepared Mr Singh’s Student visa application, has provided a statement (annexure 6) confirming that the visa holder both advised him of his Canadian visa refusal and also provided evidence of the refusal. Gurjant Singh’s statement further details that he was instructed to include that information in Mr Singh’s application but omitted to include it by mistake and proceeded to lodge the application without Mr Singh reviewing it.
Incorrect Information – Questioning by ABF Officers: Canada Visa Refusal
19. The NOICC states that during questioning at Melbourne International Airport by Australian Border Force officers, Mr Singh confirmed that he had never been to another country, or ever applied for and been refused a visa to another country. The NOICC further states that subsequent checks revealed that Mr Singh had previously had a Canadian visa application refused on 27 January 2020, and admitted this fact when questioned further.
20. We acknowledge that s99 of the Act provides that the answers given by Mr Singh to ABF officers are taken to be answers to questions on his visa application form for the purposes of s100, s101(b), s102(b), s104 and s105.
21. Mr Singh’s recollection of the interaction at the airport with the Border Force officers varies from the account provided in the NOICC. Mr Singh instructs that when initially questioned by ABF officers about his previous visa applications he was confused and did not properly understand what he was being asked. Mr Singh’s travel to Australia was the first time he had travelled internationally, and as such was the first time he had been through the customs process. Mr Singh was understandably nervous upon being pulled aside and questioned by ABF officers, which contributed to his confusion about what he was being asked. He also advises that this was the first time he had encountered Australian accents ‘in person’ and so found it initially difficult to understand what he was being asked. It is also very important to bear in mind that to the best of Mr Singh’s knowledge, his previous Canadian visa refusal had in fact been disclosed to the Department in his application, and so he was confused as to whether he was being asked about a different visa refusal. To clarify, he has only ever had the Canadian application refused.
22. After realising what the officers were questioning him in regard to, Mr Singh confirmed that he had in fact had a Canadian visa application refused, as referenced in the NOICC. Owing to the fact that Mr Singh had provided information and evidence to the migration agent who prepared his student visa application, he genuinely and reasonably believed that the Australian authorities were already aware of this, further contributing to his confusion when being questioned by ABF officers and resulting in him answering ‘no’ when asked about previous visa refusals.
The Response further addressed the prescribed circumstances and factors going to the discretion whether the visa ought to be cancelled.
The Tribunal notes that the applicant is a 21-year-old Indian national who obtained a Student (Class TU) (Subclass 500) visa on 30 January 2021, which had a visa expiry date of 31 January 2024.
The Decision Record of the delegate of the Department of Home Affairs dated 25 February 2022, which was provided to the Tribunal by the applicant, confirms the Department cancelled the student visa and the reasons for the cancellation of the visa (Decision Record).
The Decision Record confirms that the applicant arrived in Australia on 27 December 2021 and that he held an enrolment in a Diploma of Science and Bachelor of Information and Communication Technology at the University of Tasmania.
The applicant prior to the hearing filed the following documents in support of his application:
a.Submissions prepared by his representatives dated 10 June 2022 which also incorporated the Response (Submissions);
b.Form 956;
c.Copy of the NOICC dated 8 February 2022;
d.Certificate of Enrolment (COE) numbered C59C4528 for the applicant to study at University of Tasmania a Diploma of Science with a course start date of 21 February 2022 and a course end date of 31 December 2022;
e.COE numbered C59C4832 for the applicant to study at the University of Tasmania a Bachelor of Information and Communication Technology with a course start date of 20 February 2023 and a course end date of 31 December 2024;
f.Government of Canada – Notice of Visa Refusal dated 28 January 2020;
g.Statement from Gurjant Singh from Bright Route IELTS & Immigration Services dated 15 February 2022;
h.Statutory Declaration from visa holder dated 21 February 2022;
i.Jetstar tax invoice booking reference GQFFNR dated 18 December 2021;
j.Jetstar tax invoice booking reference GQFFNR dated 27 January 2022;
k.Spirit of Tasmania e-ticket/tax invoice showing travel 12 February 2022;
l.Screenshot of email to University of Tasmania orientation details dated 06 February 2022;
m.Email to University of Tasmania travel plans dated 18 December 2021;
n.Email to University of Tasmania arrival details dated 13 February 2022;
o.Screenshot Facebook Marketplace vehicle enquiry dated 1 February 2022;
p.Screenshot Facebook Marketplace vehicle enquiry dated 3 February 2022;
q.Screenshot Facebook Marketplace room to rent enquiry not dated;
r.Screenshot Facebook Marketplace Single room marked Sold enquiry not dated;
s.COE numbered CE450E40 for the applicant to study a Diploma of Production Horticulture at the Australian College of Agriculture & Horticulture (ACAH) with a course start date of 11 April 2022 and a course end date of 10 April 2023;
t.COE numbered CE452021 for the applicant to study a Graduate Certificate in Agriculture at ACAH with a course start date of 17 April 2023 and a course end date of 22 April 2024;
u.COE numbered CE452A93 for the applicant to study a Graduate Diploma of Agribusiness at ACAH with a course start date of 8 July 2024 and a course end date of 8 July 2026.
The applicant in evidence confirmed that he had applied for a student visa to Canada with Mr Gurjant Singh, his then education and migration agent in India. Mr Gurjant Singh provided a signed statement which confirmed that:
a.He is a practising migration agent and had been retained by the applicant to make application for a student visa, which was lodged on 16 January 2021;
b.The applicant had informed him of the Canadian visa refusal and provided evidence of the visa refusal to him, but due to a mistake by the agent he did not include the information about the student visa refusal in the application for the visa despite being instructed to include it;
c.By the time the visa was granted, he had forgotten about the visa refusal and did not take steps to correct the record;
d.He was sincerely sorry and regretful for the omission.
The application for the Canadian student visa was refused on 28 January 2020. He provided to the Tribunal the refusal letter from the Government of Canada which stated:
Thank you for your interest in studying in Canada. After careful review of your study permit application and supporting documentation, I have determined that your application does not meet the requirements of the Immigration and Refugee Protection Act (IRPA) and Immigration and Refugee Protection Regulations (IRPR). I am refusing your application on the following grounds:
• I am not satisfied that you will leave Canada at the end of your stay, as stipulated in subsection 216(1) of the IRPR, based on the purpose of your visit.
• I am not satisfied that you are a bonafide student who will be successful in your program of study due to low language test results. Refused under R216(1)(b).
You are welcome to reapply if you feel that you can respond to these concerns and can demonstrate that your situation meets the requirements. All new applications must be accompanied by a new processing fee.
The applicant in evidence claimed that he had applied for a student visa to Canada on the basis of undertaking a Diploma of Hospitality Management at Keystone College in British Columbia.
The applicant gave evidence that on receiving the Canadian visa refusal in January 2020, he studied English to improve his English language skills and he was subsequently advised by an uncle to make an application for a student visa to study in Australia.
The applicant engaged Bright Route IELTS & Immigration Services to make application for a student visa. He claimed that he met with Mr Gurjant Singh on 2 occasions of approximately half an hour to 45 minutes during which time he provided the information and documents to his agent to prepare his visa application to Australia including all necessary certificates and the visa refusal from Canada. He was not given the opportunity to check the student visa application prepared by the agent which is regretful, as it could have alleviated the applicant from the troubles and visa cancellation.
The Response states in relation to the circumstances surrounding the omission as follows:
24. The correct information, as provided by Mr Singh to the agent who prepared his student visa application, is that he applied for and was refused a visa to travel to Canada as a student. Documentation confirming that Mr Singh applied for and was refused that visa is included with this submission (annexure 5). These documents were provided by Mr Singh to the agent preparing his student visa application, as confirmed at paragraph 6 of the statement of Gurjant Singh (annexure 6). No attempt was made by Mr Singh to deliberately mislead the Department or provide incorrect answers on his visa application. The provision of incorrect answers was the direct result of error on part of Mr Singh’s agent, however Mr Singh acknowledges that he is ultimately responsible for the contents of his visa application and the incorrect answers provided therein.
25. We repeat out submissions of paragraph 20 above in relation to Mr Singh’s answers when questioned by ABF officers at Melbourne International Airport upon his arrival.
26. It is of course impossible for Mr Singh to comment as to whether the Australian student visa would have been approved had the Department been aware of the Canadian visa refusal. While the Canadian refusal would clearly not have helped the Australian application, the subclass 500 visa was approved on merit (albeit with the incorrect answer about the previous refusal), and the case officer who assessed the application was clearly satisfied that Mr Singh presented as a genuine student, otherwise the visa would not have been approved. On one view, the fact that he had applied for a Canadian student visa in fact evidences a commitment by this young man to furthering his studies overseas. The mere fact of the Canadian refusal would not under the Migration Act of itself have been a reason to refuse his subclass 500 application.
27. A copy of the actual Canadian decision is attached to these submissions (annexure 5). The decision itself is unremarkable in that it simply appears to have been refused under the equivalent of our ‘Genuine Temporary Entrant’ criteria, but the decision itself contains no allegations of fraud or dishonesty by Mr Singh. We cannot comment as to the basis of the refusal as we did not prepare the Canadian application, but it may be that the application itself was poorly prepared or merely contained insufficient information for a delegate to make a positive decision. In any case, as stated earlier, there is nothing in the Canadian refusal in and of itself that would have prevented the subclass 500 being approved. Absent this piece of information, his subclass 500 visa was approved based on its own merit including having satisfied the Departmental delegate that Mr Singh was a genuine temporary entrant to Australia.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly on incorrect information
28. As stated above, we submit that there is nothing to indicate that Mr Singh’s visa would not have been granted had his agent not made the error of omitting his previous Canadian visa refusal from the application form. The disclosure of the previous visa refusal would not have been fatal to Mr Singh’s application, and as stated at paragraph 2 of his statement, and paragraph 6 of his agent’s statement, Mr Singh provided evidence of this refusal which he believed would be provided to the Department.

The Tribunal observed in evidence that the applicant has a nervous manner both in speech and demeanour which could have been understandably misconstrued as though he was seeking to hide something in an interview. The Tribunal considered the applicant’s evidence to be forthright and credible.
The applicant gave evidence that he had arrived in Australia having travelled for 2 days, the first day within India and then a 10 to 11-hour flight from India to Australia. He claims that it was his first international flight. He was nervous and was unable to sleep. He arrived in Melbourne on 27 December 2021 and he was very tired. When he arrived in Australia Australian Border Force representatives commenced asking him questions, and he became scared. He stated in evidence that he struggled initially with the questions because of the Australian accents, which he was not familiar with. They asked him questions about his studies and his documents. He recalls they asked him whether he had sufficient funds to enter and whether he had travelled to another country. He replied that he had sufficient funding from his father and provided details and that he had not been to another country. He does not recall whether he was asked at that time whether he had been refused a visa from another country. He was then asked for his biometrics and after having been obtained the ABF representative went to the office to check the biometrics and questioned him about whether he was sure about whether he had not been refused a visa, to which he confirmed that he had been refused a visa to Canada, but had understood that was in his visa application.
The applicant’s evidence confirmed that he was tired, nervous and confused on arrival and that due to a misunderstanding of the questions posed to him, may have provided an incorrect answer on arrival at the airport.
In any event he admitted the prior visa refusal at Melbourne Airport on 27 December 2021, which in turn confirms that there was an omission with his visa application.
The applicant confirmed in evidence that the application was in error both for not disclosing the Canadian visa refusal, and in the response in the visa application where he had stated that he had not previously had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled, and it constitutes a contravention of s 101(b) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) of the Act by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The applicant has outlined in the Response and the Submissions that the visa should not be cancelled for the following reasons:
a.The incorrect information contained in the student visa application was not provided intentionally and was the result of an acknowledged error by the education agent in India, Mr Gurjant Singh and it is not logical for the agent to accept blame in his statement if the error was not of his making;
b.It was not unreasonable for the applicant to accept that the education agent would have done his job properly and relied on the correct information provided to the agent, which he believed he would have provided to the Department;
c.The applicant was not intentionally deceptive in his visa application or while being questioned at Melbourne International Airport.
d.There are compelling reasons for exercising the discretion:
i.The Canadian visa refusal occurred on the basis of the applicant not meeting the equivalent of ‘Genuine Temporary Entrant’ criteria, which contains no allegations of fraud or dishonesty. There may be various reasons for the refusal, relating to the preparation of the application or provision of insufficient information. There is nothing in the Canadian visa refusal which would have prevented the applicant being granted a Subclass 500 visa;
ii.Absent the information about the visa refusal, his Subclass 500 visa was approved on its own merits;
iii.He came to Australia to study a Diploma of Science and Bachelor of Information and Communication Technology at the University of Tasmania which he commenced on 21 February 2022;
iv.His visa was cancelled on 25 February 2022, losing study rights;
v.On 8 March 2022, he obtained a Bridging Visa Class E with work and study rights and has moved to Victoria, to be closer to family support with a maternal uncle, and to undertake study at ACAH in the agriculture courses, which is consistent with an applicant who has come to this country to genuinely study;
e.There would be no useful purpose in cancelling the applicant’s visa.
The Tribunal notes the tuition fees for the agriculture courses as stated on the COEs total $65,000 and are broken up as follows:
a.Diploma of Production Horticulture – $17,000;
b.Graduate Certificate in Agriculture – $16,000; and
c.Graduate Diploma of Agribusiness – $32,000.
The Tribunal accepts that the applicant has since the cancellation of the visa sought to both undertake studies here and seek employment, having obtained work and study rights with the Bridging Visa Class E. The applicant gave evidence that he is studying the agriculture courses and gained employment as a delivery driver with Uber Eats and Door Dash.
Assessment of factors
The Tribunal has assessed the applicant’s Response, the Submissions and his evidence and all the prescribed circumstances as set out in reg 2.41 as follows:
(a) The correct information
As discussed above the applicant had incorrectly declared in his visa application that he had not previously had an application for entry or further stay in Australia or any other country refused, when the correct information was that the applicant did have an application refused to enter Canada on 28 January 2020.
The applicant claims in the Response that the incorrect information was provided by his education/migration agent in circumstances where he had disclosed the refusal to the agent, he believed the agent would have included it in the application and he did not know that the agent had not included it and it appears that the provision of the incorrect information was inadvertent. This evidence was supported by the statement of the education agent who admitted the omission was inadvertent.
However s 98 of the Act provides:
98 Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
The effect of s 98 of the Act, is that the applicant is considered to have completed his application form, despite the alleged assistance he received from his agent who completed the form.
In light of s 98 he is responsible for the incorrect information in the application form.
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
(b) The content of the genuine document (if any)
The content of a genuine document is not in issue in this matter, as the issue of non-compliance relates to incorrect information in a visa application and there is no issue as to whether he has provided genuine documents.
The Tribunal gives this consideration no weight in favour of cancelling the visa.
(c) Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal notes that in assessing the applicant’s eligibility for the visa, one of the requirements the delegate assessed was whether the applicant satisfied cl 500.212, as to whether he was a genuine applicant for entry and stay as a student.
In making that assessment as to whether the applicant is a genuine temporary entrant, the applicant’s circumstances as a whole would need to be considered to determine that this requirement is satisfied. In assessing those matters, regard is had to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The decision maker will have regard to a number of circumstances including:
a.the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
b.the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
c.if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
Accordingly the decision maker will consider the applicant’s visa and immigration history and the visa refusal would have been one of the factors that would have been taken into consideration in the assessment of the applicant’s application for a student visa. The Decision Record confirms that the delegate was not aware of the previous visa refusal because the applicant had not declared it.
Plainly had the correct information been known at the time of assessing the application and making the decision it may have resulted in the delegate making a different assessment and decision. The applicant’s representative in the Response and Submissions claims that they are unable to comment on what decision would have been made by the Department but claims that the applicant was found independently to have been a genuine temporary entrant.
The Tribunal accepts that the issue of the Canadian visa refusal would have resulted in the delegate making further enquiries and investigations when considered in light of the circumstances of the applicant, the high-level course he was undertaking and his academic results. Depending on the results of those enquiries and investigations, the delegate may have made a different assessment.
Accordingly the Tribunal gives this consideration some weight in favour of cancelling the visa.
(d) The circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant submitted incorrect information in relation to his visa and immigration history when he submitted an application for a student visa.
As discussed above and set out in the Response and in evidence the applicant stated that the application was lodged by a reputed agent who had been provided with the Canadian student visa refusal. The applicant believed that the visa application had been lodged with all the correct information and had not been aware of the omission of the Canadian visa refusal. Further the education agent submitted a statement to this Tribunal confirming that the failure to disclose the visa refusal was due to a mistake by him, in that he did not include the information about the student visa refusal in the application for the visa despite being instructed to include it.
While the Tribunal accepts the applicant’s evidence that the agent prepared the visa application form and that he had not provided the visa refusal due to an error and not due to any ill intention on his behalf, the Tribunal is somewhat concerned that the applicant did not read through the application before its submission to the Department. While the applicant in evidence claims that he was not aware that the application had been filed, the Tribunal does not accept that as an excuse for an error on his student visa application.
As discussed above the Tribunal accepts that there has been non-compliance as set out in the NOICC and it notes the application of s 98, but also ss 99 and 100 of the Act regarding the non-citizen being ultimately responsible for the answers provided to the Department on application forms.
Accordingly, the Tribunal does not accept that the provision of the visa application form with incorrect information was due to circumstances beyond his control. It was open to the applicant to insist the agent provide him with all documents before they were provided to the Department.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
(e) The present circumstances of the visa holder
The applicant arrived in Australia on 27 December 2021 holding a student visa to study a Diploma of Science and Bachelor of Information and Communication Technology at the University of Tasmania which he commenced on 21 February 2022. His visa was cancelled on 25 February 2022, and he lost his study rights and enrolments in those courses.
On 8 March 2022, he obtained a Bridging Visa Class E with work and study rights and has moved to Victoria, to be closer to family support with a maternal uncle, and to undertake study at ACAH in the agriculture courses discussed above. He is currently studying the Diploma of Production Horticulture which commenced on 11 April 2022 and concludes on 10 April 2023. He has future enrolments in the Graduate Certificate in Agriculture and Graduate Diploma of Agribusiness which have a completion date of 8 July 2026.
He has had short-term work with Victorian Vegetables and is now working as a food delivery driver with Uber Eats, Menu Log and Door Dash.
The applicant gave evidence that his parents have used their savings to pay for his education here. The COEs for the agriculture courses that he is enrolled in and has future enrolments in, indicate the tuition fees for those courses are $65,000 which is significant.
He claims that he wants to complete the agriculture courses before he returns home for his future career.
The Tribunal notes that if his visa is cancelled, the applicant would no longer hold a visa to lawfully reside and study in Australia. The Tribunal notes that this would cause him both emotional hardship and financial hardship as he would no longer be permitted to study towards an educational qualification in Australia as he had planned and desired to complete. Furthermore it would mean his returning to India in circumstances before he could really commence his studies.
It would also cause financial hardship, in that the tuition fees that his family had paid would be lost and he would be lagging behind in his studies when compared with his contemporaries. If the visa is cancelled his studies will cease and he will lose his employment.
The applicant both in the Response and Submissions claims that taking away his opportunity to study here will be detrimental to him.
The Tribunal accepts that the applicant has established significant ties to Australia with his study, employment and friends, which would be severed by the cancellation.
The Tribunal gives this consideration significant weight against cancelling the visa.
(f) The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence before the Tribunal that would suggest the applicant’s behaviour does not accord with his obligations under Subdivision C of Division 3 of Part 2 of the Act.
The Tribunal gives this consideration some weight against cancelling the visa.
(g) Any other instances of non-compliance by the visa holder known to the Minister
The Decision Record does not indicate there are other instances of non-compliance by the applicant.
The Tribunal gives this consideration some weight against cancelling the visa.
(h) The time that has elapsed since the non-compliance
The non-compliance occurred when the applicant lodged his student visa application on 16 January 2021. The applicant was granted the student visa on 30 January 2021 and arrived in Australia on 27 December 2021. The non-compliance occurred on the date the student visa application was made. A period of just over 18 months has lapsed since the non-compliance which is significant. However during that period of time the applicant developed some ties by gaining 2 sets of enrolments to study, working in various roles and meeting friends and distant family. Such ties due to their duration and interruption by the cancellation of his visa are not strong. Nevertheless those ties do exist and whilst temporary as he has been here for just over 7 months must be considered in light of this application.
The Tribunal gives this consideration some weight against cancelling the visa.
(j) Any breaches of the law since the non-compliance and the seriousness of those breaches
The Decision Record confirmed that there was no information before the delegate to indicate the applicant has breached any laws since the non-compliance occurred. There is no evidence before the Tribunal to suggest otherwise.
The Tribunal gives this consideration some weight against cancelling the visa.
(k) Any contribution made by the holder to the community
The applicant both in evidence and the NOICC claimed that he wants to undertake studies and that as an international student he wishes to make a positive impact. Those impacts are demonstrated by the tuition fees, the work he will perform and the small impact he will have with his friends and distant family here.
Whilst these matters establish that he has made contributions to the community, due to his relatively recent arrival and his short period of work and study, the Tribunal considers that such contribution to the community has not been substantial.
The Tribunal gives this consideration marginal weight against cancelling the visa.
Other matters
In making its assessment of the applicant’s evidence, Response and the applicant’s application, the Tribunal has considered the following other relevant matters:
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
The applicant obtained a visa on his own and there are no dependents to his visa.
The Tribunal finds that if it decides to cancel the visa, it will not result in the consequential cancellation of any other person’s visa pursuant to s 140 of the Act.

Therefore the Tribunal gives this consideration no weight in favour of or against cancelling the visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
The applicant has not applied for protection nor made any claims that returning to his home country would result in significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations, if the visa were to be cancelled and the applicant had to return to his home country.
The policy guidelines require an assessment as to whether Australia would be in breach of its international obligations including the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).
There is no evidence before the Tribunal to indicate that the applicant has any minor children in Australia whose interests may be adversely affected if the Tribunal decides to cancel the visa.
In such circumstances the Tribunal does not consider that cancelling the visa would potentially result in a breach of Australia’s obligations under the CROC or the ICCPR.
In all those circumstances, the Tribunal is satisfied that cancelling the visa would not potentially lead to the applicant being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention, or in breach of the Refugee Protocol.
Accordingly the Tribunal gives this consideration no weight in favour of or against cancelling the visa.
Whether there are mandatory legal consequences to a cancellation decision
A visa cancellation may result in the applicant being detained under s 189 and liable to be removed from Australia under s 198 of the Act as he would no longer hold a valid visa.
If the Tribunal decides to cancel the visa, as a citizen of India it would be open to the applicant to return to that country, to mitigate the possibility of being placed in immigration detention. In such circumstances the Tribunal does not consider there is potential for the applicant to be detained indefinitely.
Further the applicant may be subject to s 48 of the Act preventing him from applying for further visas while in Australia and he is likely to be affected by PIC 4013 limiting the granting of a further temporary visa for a specified period.
While these matters impose substantive legal consequences that flow upon the cancellation of the visa, the Tribunal notes that is the effect of both the legislation and regulatory framework that has been enacted and put in place.
The Tribunal give this consideration marginal weight against cancelling the visa.
Any other relevant matters
The Tribunal is not aware of any other relevant matters to be considered.
Conclusion
Having considered the above circumstances, including that the applicant was young being 20 years of age at the time of the application, was reliant on his agent at the time of the application, has enrolled in high-level qualifications, has obtained work and study rights on a Bridging Visa Class E, and the hardship to the applicant and his family caused by the cancellation, the extent of the non-compliance and that the non-compliance was as a result of the inadvertent omission by his agent, the Tribunal considers that cancelling the visa would be harsh in the circumstances.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Michael Biviano
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 2745

4 August 2022

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