Singh (Migration)

[2023] AATA 2598

Singh (Migration) [2023] AATA 2598 (27 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Salwinder Singh

CASE NUMBER:  2206947

HOME AFFAIRS REFERENCE(S):          BCC2022/318025

MEMBER:Michael Bradford

DATE:27 July 2023

PLACE OF DECISION:  Sydney

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 27 July 2023 at 9:28am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – bogus documents – Indian school results – allegations of misconduct by former migration agent – financial and emotional hardship – adequate accurate information provided with the application – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994, Schedule 2, cl 500.212; r 2.41

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Introduction, overview of the case

1. This is a 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 (the Act).

2. The delegate cancelled the visa for non-compliance with Sec 101(b) and Sec 103 of the Act based on the provision of incorrect information and bogus documents in support of a visa application filed offshore on 15 September 2021 (the VA). The information is contained in the section of the form headed “Education” where the applicant states he had completed his Secondary Schooling in year 12 by means of the “Indian School Certificate Examinations (ISCE)”. The documents consist of a Statement of Marks and a Pass Certificate issued by the Council for ISCE on 14 May 2018 relating to his studies in year 10, and a Statement of Marks and a Pass Certificate issued by that Council on 10 July 2020 relating to his studies in year 12.

3. The visa was cancelled 13 May 2022 after the applicant responded to the Notice of Intention to Consider Cancellation (the NOICC) by means of an undated letter sent to the delegate on or about 19 April 2022 (the NOICC response).

4. There is no issue that the NOICC complied with the statutory requirements and was a valid notice under Sec 107 of the Act. Nor does the applicant dispute that the grounds for cancellation foreshadowed by the delegate in the NOICC and relied on in the Notice of Cancellation (NOC) in fact existed.

5. The applicant accepted in his oral evidence, as he did in his NOICC response, that the offending documents are bogus and the relevant information in the VA was incorrect. His review case, insofar as it relates to the circumstances in which the non-compliances occurred, is that he engaged an education agent in India (who is identified in the VA as a male person named Rohit from PR Education Solution Pty Ltd) to prepare and lodge the VA because he had no prior experience in making arrangements for an overseas education, that he gave to the agent for that purpose genuine documents and correct information relating to his secondary education in India and that the agent, instead of using them, fabricated the offending material and used it, and the information in it, to support the VA without the applicant knowing what he had done until he was served with the NOICC on 1 April 2022 and is thus innocent of any wrongdoing.

6. His documentary case on review is relevantly identical to what he relied on in the NOICC response. Among the documents relied on are the two Certificates which, he says, were provided to the agent to enable him to prepare and lodge the VA, namely a Matriculation Examination Certificate issued to him by the Punjab School Education Board (the PSEB) on 22 May 2017 and a Senior Secondary (Class XII) Examination Certificate issued to him by the PSEB on 11 May 2019 (the PSEB Certificates).

7. There was no issue before the delegate, and the Tribunal has no reason to doubt on the evidence led in the review, that the PSEB Certificates are genuine documents and that the information recorded in them is correct.

8. The questions in the case, insofar as they relate to the circumstances in which these non-compliances occurred, are whether the applicant gave the PSEB Certificates to his agent; if he did, whether he believed on reasonable grounds at all times prior to the issue of the NOICC that the agent had provided them to the delegate in support of the VA; and, if he did, what significance this has to the overall merits of his review case.

9. In addition to his evidence in relation to those questions, the applicant has also addressed in his NOICC response the other circumstances and matters which the delegate was required to and did consider before deciding to cancel the visa. As the applicant puts forward these responses as evidence in the review, I will return to look at them and other relevant matters shortly.   

10. Thus, the only issue which arises for determination on the review is whether the visa should be cancelled having regard to the relevant circumstances and the evidence led in relation to them.

11. The Review Application was filed on 13 May 2022 and is obviously within time.

    Procedural aspects in the review

12. A letter was sent to the applicant inviting him to attend a video hearing scheduled for 16 December 2022 which he duly accepted. In his Response form he indicated in effect that he wanted to rely on the PSEB Certificates and a copy of these were provided to the Tribunal in a timely manner. He also indicated in the form that his father, Jamal Singh, would give oral evidence in support of his case, which he did.

13. The applicant duly appeared at the video hearing together with his father, who resides in India. Two Punjabi interpreters were on hand at different times. The translated oral evidence from the applicant and his father took about 2 hours to complete.

14. Apart from the PSEB Certificates the applicant did not provide any other documents in support of his case. I had access to a Departmental paper file which, apart from the NOICC and NOC, contains a copy of the VA, the documents filed in support of it and the NOICC response.

15. I have also seen a PRISMS and Movements Details record for the applicant the information in which is not controversial.

16. At the conclusion of the hearing I reserved my decision given the insufficient time remaining in which to deliver a decision and give oral reasons for it.

17. For the following reasons I have decided to set aside the delegate’s decision and to substitute a decision not to cancel the applicant’s visa.

    Credibility and reliability aspects, an overview of his evidence

18. Put broadly, the applicant in his oral evidence adhered to the version put forward in his NOICC response and in other correspondence with the Department in which he denied having any prior knowledge of the agent’s intention to use fabricated material.

19. Having seen and heard him give evidence and having reviewed it in conjunction with his NOICC response and with the objective features I am prepared to accept his version of what occurred prior to and after the VA was filed and what knowledge he had at the relevant times. Much of what he has said about his dealings with the agent, and consequently his belief as to what the agent had done to procure the visa, sits comfortably with those features.

20. I have no reason to doubt his evidence that in or about April/May 2020 he met with the agent and instructed him to prepare the VA, handed to the agent the PSEB Certificates and other documents for that purpose and that he was told they were “good”. Although there was a long delay in the actual filing of the VA the applicant understood, from his communications with the agent, that this was because of COVID, a fact which is reiterated in the form itself under the heading “Employment history details” and which is otherwise clear.

21. The applicant says, and I accept, that despite having requested the agent to give him a copy of the VA at various times prior to its filing he did not in fact see it until after his visa was cancelled.

22. There is nothing in any of this which necessarily attracts suspicion or which causes me to question what the applicant says took place or what he says he knew at the relevant times.

23. There are some discrepancies between certain aspects of his evidence and that given by his father in relation to what fees the agent was paid to obtain the visa but these are understandable, relatively innocuous and serve only to confirm they have given independent accounts of what they can recollect. His father told me that he paid the agent something in the order of $25,000 to $30,000 (AUD) to procure the visa whereas the applicant suggested it was about $40,000. I prefer the father’s evidence on this if only because he provided the money but nothing really turns on it. No matter how one looks at this arrangement, these fees were grossly excessive if not grotesque, even in a country such as India where education agents are apparently left to their own devices.

24. That said, I am not prepared to infer in the circumstances of this case that the applicant and/or his father should have at least suspected that something was wrong prior to the visa. They struck me as inexperienced, relatively unsophisticated people who provided the agent with genuine documents, met his demands and simply assumed that he would act professionally in using them for their intended purpose.

25. I am satisfied that the applicant and his father have given to me credible accounts of their dealings with the agent and that their evidence is reliable and should be accepted.

    The steps which led to the cancellation of the applicant’s visa, the evidence before the delegate, a review of his findings and other findings on the evidence led in the review

26. The VA was filed to enable the applicant to study a package of Hospitality courses at the Le Cordon Bleu Cooking School (LCB) in Sydney consisting of a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and an Advanced Diploma of Hospitality Management. Although PRISMS records that his enrolments in this package were cancelled for non-commencement in September 2021 this was because of the international travel restrictions then in place to counter the effects of the pandemic. Once these restrictions were relaxed the applicant, presumably on the advice of his agent, re-enrolled in the same package at the same provider, together with a short English course at another provider, ultimately arriving here towards the end of 2021 shortly before the English course was due to commence.

27. The applicant says that he completed the English course on time and has provided documentary evidence which confirms that he was studying that course at the Universal English College when the NOICC was served on him. PRISMS confirms that he completed it shortly afterwards.

28. The applicant has consistently stated since the fraud was discovered that he provided to the agent a copy of the PSEB Certificates to support the VA and has consistently denied having any knowledge at the relevant times that the agent did not use them for that purpose. He said as much in his initial email to the delegate of 12 April 2022, it was reiterated it in the NOICC response and he has maintained this position in his oral evidence led in the review.

29. Given the other concessions which the applicant has properly made regarding the non-compliances I do not need to dwell any further on the information which underpinned the issue of the NOICC nor do I need to record the findings of the delegate in relation to the issue of whether the visa was liable to be cancelled under Sec 109.

30. I can thus proceed to consider what the delegate said in the NOC in relation to the discretionary aspect of whether the visa should be cancelled.

31. On this aspect the delegate took into consideration, as he was required to do, the applicant’s response, the relevant legislation and the guidelines set out in the relevant section of the Procedural Instruction.

32. As to the applicant’s response the delegate noted in the NOC that he had provided to the Department a copy of the PSEB Certificates and had reiterated in the response, among other things, that he was completely unaware of the non-compliances until he was served with the NOICC; that he regarded this to be a critical aspect of his case; that he wanted the delegate to know that his parents had invested heavily in his education here; and that he should not be penalised for the fraudulent conduct of the agent. He also said that his family were under a good deal of emotional stress since the fraud was discovered and the applicant’s predicament made clear in the NOICC.

33. There is no doubt in this case that the correct information regarding the applicant’s secondary education is that contained in the PSEB Certificates which, as noted earlier, revealed that he completed his Year 12 examinations in May 2019, this being some 2 years prior to the filing of the VA in May 2021.

34. Given that the applicant had not disclosed in the VA any work or higher-level education in India during that period, it is apparent to me, as I think it must have been to the delegate, that the agent had fabricated the documents to camouflage the fact that the applicant had not made any real progress in pursuing a career in Hospitality, or indeed any career, since completing his secondary schooling in May 2019. The offending material suggested to the delegate that he had not completed his schooling until May 2020, by which time of course the pandemic was impacting India and Australia.

35. This being so, the delegate was plainly right in regarding the correct information to be significantly different to what is contained in the PSEB Certificates and that, had the correct information been disclosed, there may well have been a different assessment on the issue of whether the applicant met the requirements of Regulation 500.212.

36. I agree with the delegate that these are matters which, on one view at least, could be seen to carry significant adverse weight at the discretionary level.

37. That said the fact remains that, on my findings, the applicant provided the correct information to the agent and, no less importantly, the difference between the correct and incorrect information regarding the completion of his secondary education in India is a period of no more than 12 months. I do not think that is necessarily a circumstance which would have been sufficient to defeat his VA had the delegate been made aware of the correct position, other things being equal. I have not seen a copy of his GTE statement but am not prepared to infer in this case that the delegate would necessarily have refused to grant the visa on that ground alone.

38. I also disagree with the delegate’s view, as expressed in the NOC, that the legislation carries the implication that the applicant must accept full and unfettered responsibility for what the agent did irrespective of the circumstances in which he did it. It is true, as the delegate has pointed out, that for the purposes of determining whether grounds exist for the cancellation of a visa under Sec 109 an applicant is responsible for the conduct of an agent. The deeming effect of Sec 98 of the Act makes this abundantly clear. The legislation would clearly be unworkable if it did not have that reach. But, at the discretionary level, the circumstances might suggest, as indeed they do in this case, that due weight should be given to the fact that the applicant was quite unaware, and had no reason to suspect, that his agent was intending to and/or did fabricate documents and provide incorrect information to the Department to procure the visa.

39. There is nothing in this case to suggest that an inexperienced applicant such as this one was aware, either through his dealings with the agent or from other sources, that his prospects of obtaining the visa might be affected by his unproductive history during the period from May 2019 to May 2020.  

40. In my view, if an applicant can satisfactorily demonstrate that what an agent did was both unauthorised and unratified, and that nothing suspicious came to his or her attention which warranted further enquiry, the applicant can justifiably expect that these circumstances will be taken into consideration and appropriate allowances made for them at the discretionary level.

41. Far from being given significant adverse weight, it seems to me that the circumstances in which these non-compliances occurred works very much in the applicant’s favour and does ameliorate his position.

42. Even if one accepts that the circumstances were not entirely outside his control they were, in my view, sufficiently mitigating to warrant a finding that he acted honestly and reasonably in accepting the agent’s assurances that the PSEB Certificates were good. The clear implication from this assurance, as reasonably understood by the applicant at the time, was that the agent would use them to support the VA.

43. The mere fact that the agent in this case, according to the applicant, did not provide a copy of the VA to him despite having been requested to do so two or three times prior to its filing could not, of itself, put the applicant on enquiry given his lack of experience in these matters.

44. Other relevant circumstances serve only to reinforce that proposition, including the fact that the applicant’s father paid the agent an extravagant amount of money to proceed with what he believed on reasonable grounds to be a normal commercial transaction. Payment of excessive fees in cash might, at least in some cases, excite suspicion that an agent could not be trusted but I am satisfied in this case that neither the applicant nor his father had any idea that the agent would or did fabricate documents to procure the visa until the NOICC was served. I accept that each of them trusted the agent to prepare the VA on the information he was given and that nothing came to their notice to suggest otherwise until the Department got in touch with them.

45. As to the applicant’s present circumstances these are set out in the NOC. Little has changed in this respect since the delegate made his decision. The applicant has not been enrolled at LCB since 26 April 2022, when his studies were terminated not long after the NOICC was served.

46. He has not studied since April of last year because the Bridging visa granted to him on 24 May 2022 contains a condition which has prevented him from doing so.

47. I am satisfied that he genuinely wants to study the Hospitality package for legitimate career related reasons and that he has a real and significant incentive to return to India once those studies are completed. He owes much to his father for the unwavering support he has received before and after the NOICC was served. He confirmed in his oral evidence that he wants to study the Hospitality package at LCB and his father remains willing and able to support him.

48. These are all matters which, in my view, militate strongly against cancellation.

49. I also accept that the applicant and his family, particularly his father, would suffer financial and emotional hardship if the visa were to be cancelled. The applicant has not been in Australia for a long time, having arrived here in late 2021, but this does not affect my view that cancellation of the visa would occasion hardship to him and his parents. His father has invested heavily in his son’s education here and has thus far seen nothing in the way of a return. My impression is they have limited means but a good deal of resolve to do what they can to put his academic program back on track.

50. Apart from his completion of the English course, the applicant has been unable to progress for the past 18 months because of the conduct of his agent about which he knew nothing until it was too late.

51. These are additional matters which, I think, tend very much against cancellation.

52. As to the other relevant matters, apart from matter referred to in para (h) of Part D, I agree broadly with the way the delegate dealt with them in the NOC and accept there is nothing in them which can be regarded as adverse to the applicant. Indeed, if anything, they work in his favour. Given the time which has now elapsed since the non-compliances, and what has taken place during that period, I regard this factor, unlike the delegate, to attract some weight against cancellation.

1. Although merely volunteering to donate blood is not, in my view, a relevant contribution to the community a regular and sustained giving of blood on a gratuitous basis might be.

   Summary and conclusion

2. Having accepted the essential features of the applicant’s case, giving what I regard to be appropriate weight to the relevant factors, I have little difficulty in concluding in this case that the applicant’s visa should not be cancelled.

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Student (Temporary) (Class TU-500) visa.

   Michael Bradford
   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.