Singh (Migration)

[2024] AATA 2196

Singh (Migration) [2024] AATA 2196 (4 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vikramjeet Singh

CASE NUMBER:  2213093

HOME AFFAIRS REFERENCE(S):          BCC2022/1558632

MEMBER:Rachel Westaway

DATE:4 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 04 April 2024 at 11:13am

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – had provided incorrect information and bogus documents – applicant failed to declare he had been known by any other names – had previously held other passports under a different identity – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 101, 103, 109, 359, 375

Migration Regulations 1994 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that they did not consider the applicant to comply with sections 101 and 103 of the Migration Act 1958 (the Act). The applicant conceded that he had provided incorrect information and bogus documents in his Student visa application. Namely, the applicant failed to declare he had been known by any other names and that he had previously held other passports under a different identity. Furthermore, the applicant agreed that he had previously obtained visas for, and had travelled to, Australia in 2007. The applicant stated that he left Australia in 2010 and that his visa was subsequently cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was invited to a hearing on 9 August 2023 at 10:30am to give evidence and present arguments. At 9.30 am the applicant emailed the Tribunal and stated that he was not able to attend as he was suffering from an ear infection and fever and has consulted a doctor. He stated he will provide a medical certificate. No medical certificate was provided. He asked to have his hearing either be rescheduled or to make a decision on the papers. The Tribunal wrote to the applicant on 10 August and confirmed it agreed to make a decision on the papers.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

7. 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.

   Background

1. The applicant is a 39-year-old male from India.

2. The applicant was granted a TU-500 visa on 24 June 2021.

   Tribunal Application

3. The applicant lodged their application for review on 5 September 2022. They provided the Department of Home Affairs decision record, Indian Passport along with their application for review.

   Invitation to comment on validity of non-disclosure certificate

4. On 5 July 2023 the Tribunal wrote to the applicant advising that there was a non-disclosure certificate made under s.375A of the Act attached to the Department’s file. A copy of the certificate was attached to the letter. The applicant was provided with 14 days to provide any submissions regarding the validity of the certificate they may wish to make.

   Invitation to provide further information under s.359(2) of the Act

5. On 7 July 2023, the Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide further information in regard to his visa cancellation. Specifically Information about:

   ·Any circumstances in which the ground of cancellation arose;

   ·Whether you have a compelling need to remain in Australia;

   ·Your compliance with visa conditions generally, including any previous visas you have held;

   ·The hardship that may be caused if the visa is cancelled on you or your family or anyone else connected to the visa;

   ·Any contributions you have made to the community;

   ·Any other matter you consider relevant

6. The letter provided the applicant with 14 days to provide the requested information or request an extension of time to respond. The letter also stated that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 21 July 2023 the applicant submitted a written document via email where he addressed the concerns raised by the department and how the visa cancellation affects him and his family.

   Invitation to provide further information under s.359A of the Act

8. On 7 July 2023, the Tribunal wrote to the applicant under s.359A of the Act inviting the applicant to provide further information.

9. The letter provided the applicant with 14 days to provide the requested information or request an extension of time to respond. The letter also stated that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. On 21 July 2023 the applicant submitted a written document via email where he addressed the concerns raised by the department.

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

11. 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.

12. The non-compliance identified and particularised in the s 107 notice was non-compliance with s101(b) of the Act and section 103 of the in the following respects: the Indian passport (document number U1424316) was obtained because of a false or misleading statement, whether or not made knowingly, as defined by s5(1)(c) of the Act.

13. On page three of the application form, under the heading ‘Other names/spellings’, the form asked ’Is this applicant currently, or have they ever been known by any other names?’. The applicant answered, ‘No’. The department considered this answer to be incorrect because a departmental Forensic Facial Image Examiner determined through investigation of facial images, that the applicant is also known as Vikram Jeet SINGH (DOB 05 November 1983).

14. On page 17 of the department application form, under the heading ‘Visa history’, the form asked, ‘Has the applicant, or any person included in this application held or currently hold a visa to Australia or any other country?’. The applicant answered ‘No.’ The Department considered this answer to be incorrect because departmental records indicate that the applicant was granted a Student (Higher Education Sector) visa on 04 October 2007, and a subsequent Student (Higher Education Sector) visa on 18 December 2007, under the identity of Vikram Jeet SINGH (DOB 05 November 1983).

15. On page 17 of the application form, under the heading, ‘Visa history’, the form asked ‘Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?’. The applicant answered, ‘Yes’ and provided the following details,’ “Student visa application was refused earlier. TRN No: EGOQRHT2BG Date of Decision: 12 March 2021”. The applicant did not provide the details of any other visa application that was refused or cancelled. The Department considered this answer to be incorrect because departmental records indicate that the applicant also had a student visa cancelled on 04 June 2011, and a Visitor visa application refused on 31 March 2018 under the identity of Vikram Jeet SINGH (DOB 05 November 1983).

    The non-compliance with s103

16. The Department found that the applicant did not comply with s103 of the Act because in support of their student visa application they provided a copy of an Indian passport, which recorded the following details:

    Passport Number: U1424316

    Surname: Singh

    Given Names: Vikramjeet

    Date of Birth: 11 November 1985

    Place of Birth: Jammu, Jammu and Kashmir

    Place of Issue: Jammu

    Date of Issue: 18 March 2020

    Date of Expiry: 17 March 2030

17. The applicant included a copy of the back page of this passport, with a section on this page labelled, “Old Passport no. with Date and Place of Issue”. This section did not list any previous passports, indicating that the applicant had not held any previous passports. The Department found that this document was a bogus document because Departmental records indicate that the applicant previously held the following passports under his previous identity:

    Vikram Jeet SINGH (DOB 05 November 1983):

    Passport Number: F9366306

    Surname: Singh

    Given Names: Vikram Jeet

    Date of Birth: 05 November 1983

    Place of Birth: Jungwari

    Place of Issue: Jammu

    Date of Issue: 29 August 2006

    Date of Expiry: 28 August 2016

    As well as:

    Passport Number: J5892000

    Surname: Singh

    Given Names: Vikram Jeet

    Date of Birth: 05 November 1983

    Place of Birth: Jungwari

    Place of Issue: Jammu

    Date of Issue: 30 December 2011

    Date of Expiry: 28/ August 2016

18. The Indian passport (document number U1424316) the applicant provided issued under his current identity of Vikramjeet SINGH (DOB 11 November 1985) did not reflect his previously held passports (document numbers J5892000 and F9366306). In contrast, the Indian passport (document number J5892000) appropriately recorded that the applicant, as Vikram Jeet SINGH (DOB 05 November 1983), held an additional Indian passport (document number F9366306). The Department therefore reasonably suspected that the Indian passport (document number U1424316) which had the applicant’s current identity as Vikramjeet SINGH (DOB 11 November 1985), was obtained in an attempt to conceal the applicant’s previous passports and identity as Vikram Jeet SINGH (DOB 05 November 1983).

19. On 21 July 2023 the applicant responded to the Tribunal and stated in his submission that “I acknowledge that there was confusion regarding my identity specifically related to passport number U1424316 which mentioned the name Vikramjeet Singh (DOB: 11 November 1985) but did not have any reference to my previous passports which were (J5892000 and F9366306). Whereas, the passport number J5892000 mentioned my name, previous passport number, and (DOB: 5 November 1983). This discrepancy raised a reasonable suspicion in me. I am fully aware of these discrepancies and take responsibility for my actions. I admit the guilt for what I have done and understand the seriousness of the situation”.

20. Regarding the previous visa refusal and cancellation, he stated that “The member raised a concern that I did not declare my previous visa cancellations and refusals. I acknowledge that I was not fully aware of the significance of providing complete and accurate information during the visa application process using my new passport. Hence, I only mentioned the recent refusal granted under my current passport. This lack of awareness misled me during the visa application process, resulting in the oversight of not declaring my previous visa cancellation and refusals”.

21. The Tribunal has noted that the applicant has confirmed non-compliance in his written submission to the Tribunal.

22. For these reasons, the Tribunal finds that there was non-compliance with s101(b) of the Act and section 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

23. 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).

24. 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

25. The applicant stated in his submission to the Tribunal that “I am fully aware of these discrepancies and take responsibility for my actions. I admit the guilt for what I have done and understand the seriousness of the situation”. He had previously stated to the Department that his agent had not told him to declare his previous immigration history.

26. The applicant did not disclose previous names he was known by, nor did he disclose previous visas held and he did not disclose the full details of previous cancellations and refusals. In his submission to the Tribunal, he confirmed that passport number U1424316 which mentioned the name Vikramjeet Singh (DOB: 11 November 1985) and is in relation to the application under review did not have any reference to his previous passports which were (J5892000 and F9366306). He stated that the passport number J5892000 mentioned his name, previous passport number, and DOB being 5 November 1983). This information should have been included and was not disclosed.

27. On 04 June 2011, the applicant under the name of Vikram Jeet SINGH (DOB 05 November 1983) had his Student (Higher Education Sector) visa cancelled. This was not disclosed.

28. He had also applied for a Visitor (subclass 600) visa on 12 March 2018 under the identity of Vikram Jeet SINGH (DOB 05 November 1983). This visa application was refused on 31 March 2018 and this information was not disclosed.

29. The information omitted in the application under review should have been included and was the correct information. The correct information should have stated that he was also known as Vikram Jeet SINGH (DOB 05 November 1983) and that he was the holder of two Indian passports (document numbers F9366306 and J5892000).

30. Further the correct information should have included that as Vikram Jeet SINGH (DOB 05 November 1983), his Student (Higher Education Sector) visa was cancelled and on 31 March 2018, his application for a Visitor was refused.

31. It appears as if the applicant omitted the correct information in an attempt to conceal his previous immigration history in order to facilitate a more favourable outcome for the grant of the student visa under review. The Tribunal has considered that the applicant stated that his agent did not explain he must declare his previous immigration history. The Tribunal notes that it is incumbent on the applicant to make a declaration that the information is correct, and the questions were very specific. As such the Tribunal finds that the applicant deliberately omitted information he was asked to provide pertaining to his identity and previous immigration history.

32. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    the content of the genuine document (if any)

33. The Tribunal has copies of the Department’s integrity checks indicating the applicant had been known by a previous identity, namely Vikram Jeet SINGH (DOB 05 November 1983) which he did not disclose. Regarding the decision under review, the applicant used his Indian passport (document number U1424316) which listed Vikramjeet SINGH (DOB 11 November 1985). The applicant provided no details as to his previous known identity and nor did the passport reflect this identity or another identity (document numbers J5892000 and F9366306). The Tribunal finds that the applicant’s current Indian passport (document number U1424316) which the student visa under review was granted under is a bogus document, as it was obtained because of a false or misleading statement, whether or not made knowingly, as defined by s5(1)(c) of the Act.

34. The Tribunal notes from the information before it in the delegate’s decision which was provided to the Tribunal by the applicant that he had obtained a new passport after “his migration agent told him that it would be difficult for him to obtain a new visa with his previous passport”.

35. The applicant also provided a submission to the Tribunal in which he stated “I acknowledge that I was not fully aware of the significance of providing complete and accurate information during the visa application process using my new passport. Hence, I only mentioned the recent refusal granted under my current passport. This lack of awareness misled me during the visa application process, resulting in the oversight of not declaring my previous visa cancellation and refusals”. He provided no explanation regarding his different passports or a different date of birth which was listed. This causes the Tribunal to conclude that the passport (document number U1424316) was bogus.

36. The applicant’s passport (document number U1424316) was used to apply for the student visa under review and should have detailed his previous passport numbers and known alias’.

37. The content of the accurate information is listed above and was not provided to the Department when the applicant applied for the visa under review. Given that this information would have been relied upon in making a decision about the grant of the visa, the Department was left unaware of the applicant’s previous migration history.

38. The content of the genuine document was important to the issuing of the visa under review.

39. The Tribunal gives this consideration significant weight in favour of cancelling 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.

40. The Tribunal notes that an applicant’s previous immigration history is important in assessing whether the applicant meets the criteria for the visa application. Consideration is given to whether the applicant has previously studied, their adherence to previous visa conditions and an assessment to whether they are a genuine student and whether they meet public interest criteria amongst other things.

41. Reg 500.217(1) requires that the applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021. The Tribunal notes that Public Interest Criterion (PIC) 4020 states:

    (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a) the application for the visa; or

    (b) a visa that the applicant held in the period of 12 months before the application was made.

    The applicant’s immigration history was not provided by him in full detail and therefore not known when the assessment for his current student visa was made. Had the delegate been aware of this, namely that incorrect answers were provided and that he had provided a bogus document, the granting of the visa may not have occurred and as such the Tribunal gives this factor significant weight in favour of cancelling the visa.

    the circumstances in which the non-compliance occurred.

1. The applicant has stated that he accepts the discrepancies and failure to disclose these. He stated in his submission to the Tribunal that he was not initially aware of the need to disclose this information and had used the services of another migration agent. The delegate’s decision also outlined that the applicant “claimed that the agent told him that it would be easier for him to obtain a new visa if he obtained a new passport. In addition to this, the visa holder claimed that the agent did not tell him that he was required to declare his previous visa refusal and cancellation. As a result, the visa holder submits he was unaware that he had to do so”. The Tribunal like the delegate also notes that the applicant did declare one visa refusal. The Tribunal also notes that the applicant had two different dates of birth listed. As such the Tribunal finds that it is more likely that the applicant would have been aware of the need to disclose previous immigration history and elected not to do this and use an alias so as to avoid any possible negative outcomes for the application for the student visa currently under review.

2. The applicant in his submission provided a background to his immigration history. He stated that following the grant of his first student visa in 2007 for the Diploma of Community Health Services he was advised by his education agent to switch to a cookery course as it was in higher demand compared to other courses. He claims he enrolled in this but was not interested in hospitality and tried to change the course. He stated the college closed and his COE was cancelled, and he ended up being enrolled in the Diploma of Business Management following his agent’s advice. Given he had no interest in either course on his family’s advice he return to India. Consequently, in 2010, he returned to India. He stated that in 2011his visa was cancelled by the department under the Section 128 Act.

3. He claims when he returned to India, he found his professional growth had been limited and hence reapplied to study physiotherapy but fell into “the loop of confusion and discrepancies” and that he hopes the Tribunal will consider these factors.

4. The Tribunal has considered the circumstances in which the non-compliance has occurred and finds that the applicant would have been aware that previous immigration history was required to be disclosed and he did not. The Tribunal does not accept that the applicant would not have been aware of the questions asked of him as he must declare the information is true. Further, two different dates of birth were used.

5. The Tribunal finds that the circumstances in which the non-compliance occurred were not beyond the applicant’s control and were not extenuating. Whilst the Tribunal acknowledges the applicant’s previous experiences and disappointment with his study choices, this does not provide any explanation as to why he did not disclose his previous immigration history or alias.

6. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

   the present circumstances of the visa holder

7. The applicant in his submission to the Tribunal stated he first came to Australia in 2007 on a student visa which was cancelled on 4 June 2011. He returned to Australia in 2021 to pursue higher studies in the Master of Public Health Program at Central Queensland University (CQU). He stated he is currently pursuing a Master of Public Health at CQU and commenced first semester. He claims he wanted to work in this field and worked as a registered Physiotherapist in India having completed a Master of Physiotherapy and stated he is eligible for the positive skill assessment as a physiotherapist in Australia which will help him upgrade his expertise in a similar field.

8. The applicant quoted the Australian Health Practitioner Regulation Agency report which highlights that physiotherapy is currently among the rapidly growing professions, experiencing higher growth in the past 2 years. He claims that with the increasing demand for physiotherapy services in Australia he would like to be part of this profession.

9. The applicant outlined the investment his parents have made in his education and his need to support his family in India. He has stated in his submission that “a visa cancellation would have a severe psychological and emotional impact on me and my family causing significant distress and making me prone to depression”.

10. The Tribunal is cognisant of the applicant’s circumstances, his current enrolment in a course and accepts that he would have established connections in Australia now and that a visa cancellation would be a significant disappointment and would disrupt his studies and be a financial loss to both him and his family as his family are dependent on him financially and his parents have paid for his studies. The Tribunal has also taken into consideration the psychological and emotional stress of a visa cancellation. The Tribunal gives these factors some weight in favour of the applicant and not cancelling the visa.

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

11. The applicant confirmed and apologised to both the Department and the Tribunal that he provided incorrect information to the Department regarding his previous identity and adverse immigration history. However, whilst the Tribunal appreciates that the applicant has acknowledged his actions, he did not declare these until the Department contacted him with the NOICC.

12. As the applicant did not declare the provision of incorrect information to the Department until he as contacted by them, he has failed to comply with his obligations and the Tribunal gives this consideration significant weight in favour of cancelling his visa.

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

13. There is nothing before the Tribunal to indicate that the applicant has not complied with other conditions on his visa. As such the Tribunal gives this factor some weight in favour of not cancelling the visa.

    the time that has elapsed since the non-compliance.

14. The applicant lodged his student visa application on 16 June 2021 with incorrect information and the Department cancelled the visa on 31 August 2022 and subsequently sought review. The Tribunal notes that over two and a half years have passed since the non-compliance. Whilst he Tribunal considers this a reasonably significant period of time and the applicant would have made friends in Australia and established ties, the visa was a temporary visa and the applicant has family and more significant ties to his country.

15. The Tribunal gives this factor a little weight in favour of not cancelling the visa.

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

16. The applicant has stated in his submission that he has not breached any other conditions on his visa and there is no information before the Tribunal to suggest that there has been any breaches of the law since the non-compliance.

17. The Tribunal gives this consideration a little weight in favour of not cancelling the visa.

    any contribution made by the holder to the community.

18. The applicant has not provided any information in his submission or to the Department addressing how he has contributed to the community whilst in Australia. The Tribunal acknowledges his economic contribution and possible ties to the Indian community in Australia and the establishment of friendships.

19. The Tribunal gives this factor limited weight in favour of cancelling the visa.

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

20. The are no consequential cancellations under section 140 of the Act and as such the Tribunal gives this factor no weight.

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

21. The applicant does not have any children in Australia in which a cancellation would lead to a breach of Australia’s international obligations under the CRC.

22. The applicant is a citizen of India and has not raised any protection claims and as such the Tribunal has not considered Australia’s non-refoulement obligations under the Refugee Convention.

23. There is no information before the Tribunal to indicate that Australia has any other international obligations that may be impacted by cancellation of the applicant’s visa.

24. The Tribunal gives these considerations a little weight in favour of cancelling the visa.

    Whether there are mandatory legal consequences to a cancellation decision.

25. If the visa was to be cancelled, the visa holder would become an unlawful non-citizen and could be liable for detention under section 189, and removal under section 198 of the Act if he does not voluntarily depart Australia.

26. The applicant in his response to the department and his submission to the Tribunal claims that a “cancellation of my visa would place me on Bridging Visa E which would hinder my eligibility to apply for further visas, potentially limiting my options to be in Australia”. The Tribunal has considered the consequences of a cancellation and accepts that if the visa is cancelled section 48 of the Act would apply and the this would mean the applicant has limited options for applying for further visas in Australia and as the delegate has also noted, the applicant may also be affected by Public Interest Criterion, limiting the grant of a further visas for a specified period.

27. I give this consideration some weight against cancelling the visa.

    Any other relevant matters.

28. The applicant has provided a submission to the Tribunal outlining the psychological impact on him and his family and he has claimed that he now understands the significance of “complying with all visa regulations and the importance of providing accurate information in any future visa applications”. He claims to be a genuine student and adheres to the rules and laws in Australia.

29. In his response to the Department, he claimed that he should be given a chance to redeem himself and claimed that it was in the community’s best interest to acknowledge his good character and for him to be given the chance to undertake rehabilitation and sited previous criminal cases.

30. The Tribunal has considered the other matters raised by the applicant and accepts the psychological and emotional impact he may experience if the visa is cancelled. It notes that he has complied with the Department and Tribunal’s requests for further information and has demonstrated ownership of the incorrect information.

31. The Tribunal considers the provision of incorrect information to be serious and whilst it acknowledges the applicant’s regret and suggestion by the applicant to undertake rehabilitation the Tribunal has considered that the applicant could complete his studies in India, or apply for online master’s course and seek to obtain credits for subjects he has completed. Should he seek to undergo rehabilitation this is a matter for him and as discussed in the delegate’s decision could be undertaken in India. The Tribunal also notes that the cases sighted by the applicant are not relevant to the cancellation of student visas.

32. The Tribunal has also considered the Notice of Consideration to Cancel sent to the visa holder on 27 July 2022 which incorrectly stated 23 March 2023 and not 23 March 2022. The Tribunal finds that this administrative error does not affect the validity of the NOICC. 

33. I give these considerations a little weight against cancelling the visa.

    CONCLUSSION

34. 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 be cancelled.

    DECISION

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

    Rachel Westaway
    Senior 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.