Singh (Migration)

[2024] AATA 3082

Singh (Migration) [2024] AATA 3082 (16 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manavdeep Singh

REPRESENTATIVE:  Ms Carina Ford

CASE NUMBER:  2306886

HOME AFFAIRS REFERENCE(S):          BCC2016/1081087

MEMBER:David McCulloch

DATE:16 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Higher Education Sector (Subclass 573) visa.

Statement made on 16 August 2024 at 3:19pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – a bogus document was provided evidencing financial support – non-disclosure certificate was invalid – the non-genuine bank statements were not provided as part of the application for the student visa – there were adequate family resources to cover his study –decision under review  set aside

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

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 Immigration and Border Protection dated 17 February 2017 to cancel the applicant’s Higher Education Sector (Subclass 573) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in a visa application, breaching s 101(b) of the Act and producing bogus documents, breaching s 103 of the Act. The issue in the present case is whether the grounds for cancellation were made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 30 May 2024 at 9.30am to give evidence and present arguments. As the applicant was in Victoria and the Tribunal Member in Sydney, the hearing was held by video on Microsoft Teams.

4. At the applicant’s request the Tribunal took evidence by video from the following witnesses:

   ·Ms Prabhjeet Kaur, the applicant’s wife;

   ·Mr Gurinder Singh, the applicant’s uncle.

5. The applicant was represented in relation to the review. The representative attended the hearing by video.

6. The Tribunal conducted a second hearing on 24 June 2024 at 9.30am. The hearing was held by video using Microsoft Teams. The representative attended the hearing.

7. The Tribunal conducted a third hearing on 12 August 2024 at 9.30am. The hearing was held by video using Microsoft Teams. The representative attended the hearing.

8. 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

9. 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.

10. 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.

11. 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. No contention has been made to the contrary.

    Jurisdiction issue

12. The application for review was made on 18 May 2023. The applicant was sent the refusal decision on 17 February 2017. On that basis, the last day for lodging the application for review was 20 March 2017. The review application therefore appears to be out of time and therefore invalid.

13. A submission by the applicant’s representative indicating notification defects was made to the Tribunal on 18 May 2023 with supporting documents. The refusal decision was sent to a physical address as well as to an email address. The physical address was 23 Elsternwick Way, Craigieburn, Victoria. It is submitted that the applicant’s correct physical address was in fact 29 Elsternwick Way, Craigieburn, Victoria. Evidence was provided on this being the physical address of the applicant.

14. The Tribunal accepts that the refusal decision was sent to an incorrect physical address, and therefore this notification was not valid.

15. However, the refusal decision was also sent by email to an indicated email address. It is submitted that this has never been the applicant’s email address, but was an email address created by the applicant’s agent who prepared and lodged the visa application. The applicant has never had a password for, nor had access to, the email address. It is submitted that the notification was not sent to a valid email address.

16. It is submitted that, in any event, the refusal decision proceeds on the basis that it was sent by mail, rather than email and indicating that, on that basis, it was taken to be received seven days after the date of the letter. It is submitted that on the basis that the decision was sent by email this gives an incorrect date of its deemed receipt. If the refusal decision is sent by email it is deemed to be received on the day that it is sent. As such, it is submitted that even if the applicant successfully received the notification by email, the incorrect timeframe for receiving the document could have misled the applicant as to the correct deadline for review. On that basis it is submitted that the notification by email is invalid.

17. The Tribunal considers that it is questionable in the circumstances that the email to which the notification was sent can properly be characterised as the address for contact by the applicant.  In any event, the Tribunal considers there is force in the argument that the email notification is invalid because it provides incorrect information as to the date on which it is taken to be received, which could reasonably create confusion as to review deadlines.

18. The Tribunal wrote to the applicant on 25 August 2023 acknowledging that there may have been an error in notification of the primary decision. It is indicated that the applicant may nonetheless have received decision notification at a later time, in which case the applicant is taken to have received the decision at that later time.

19. It is apparent from the Departmental file that following an enquiry by the applicant to the Departmental service centre, a ‘courtesy copy’ of the refusal decision was sent to the applicant on 23 August 2017. The covering email indicates that the applicant should contact a relevant Departmental office to discuss the circumstances.

20. A submission was provided on behalf of the applicant dated 8 September 2023 arguing that the notification sent on 23 August 2017 is not a valid notification in terms of triggering timeframes for review. This is because it was sent as a courtesy copy only and the date of the refusal has not been updated from its original date. Further, it indicates timeframes for review which have passed in terms of the date of the refusal. The covering email does not indicate that the applicant could seek a review of the decision. Indeed, it indicates that the applicant should contact the Department to discuss the matter.

21. The Tribunal agrees with the arguments that the re-notification of the refusal decision in August 2017 is not a valid notification for the purpose of triggering timeframes for review.

22. In all the circumstances, the Tribunal does not consider that the applicant has been validly notified of the refusal decision.  Thus, timeframes for the applicant lodging the application for review have not commenced and the applicant’s review is thus not out of time, so the Tribunal has jurisdiction to consider the matter.

    Non-disclosure certificate

23. On the Departmental file is a non-disclosure certificate issued under s 375A of the Act on the basis that certain documents on the file:

    ·disclose, or enable a person to ascertain the existence or identity of, a confidential source of information;

    ·disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would, or would be likely to, prejudice the effectiveness of those methods.

24. In the first hearing, the Tribunal noted that the applicant had the ability to challenge the validity of the certificate.  The representative indicated a wish to challenge the validity of the certificate and to be provided with a copy of the certificate, which the Tribunal did.

25. Written submissions were provided indicating that the certificate lacks a logical, probative and rational basis for determining that the disclosure would be contrary to the public interest. It is also indicated that if there is information about a confidential source then that information can be redacted.

26. The documents in question include internal emails, relevant documents provided by the applicant and the applicant’s application for the student visa. They also include a memorandum from an officer regarding investigations as to the genuineness of various documents and information provided by the applicant, which determines that the relevant financial documents are not genuine. While it is indicated that there is an allegation that the applicant paid to arrange funds and did not sit IELTS exams, the name of the source is not indicated and therefore there is no person to protect.

27. The documents do not reveal the identity of a confidential source of information and therefore this reason for the non-disclosure is not valid.

28. The documents, in the Tribunal’s view, do not prejudice the effectiveness of lawful methods for preventing, detecting and investigating breaches or evasions of the law.

29. The Tribunal therefore determines that the certificate is invalid. As a result, in advance of the second hearing, the Tribunal sent to the applicant the four documents covered by the non-disclosure certificate.

30. Written submissions were made in advance of the second hearing, as discussed below, relevant to the issue of whether there was non-compliance as described in the s 107 notice.

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

31. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) and s 103. The s 107 notice advised, relevantly, as follows:

    Sections of Subdivision C with which it is considered the visa holder has not complied:

    Section 101 Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.

    By operation of s99 of the Act, 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.

    Section 103 Bogus documents not to be given etc.

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

    Bogus document is defined in section 5(1) of the Act:

    ‘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’

    Evidence of non-compliance:

    Section 101 Visa applications to be correct

    1. On 11 December 2015 the visa holder lodged an application for a subclass 573 visa on Form 157A.

    2. On page 13 of the application form at Question 42, where it asks, “Do you have access to sufficient funds to support you and your family unit members for the TOTAL period of your stay in Australia (including proposed course fees for you and any school-age family members, living costs and travel costs, regardless of whether your dependants intend to accompany you to Australia?)”, the visa holder’s response was “Yes”.

    3. The visa holder submitted with his visa application a certificate dated 23 October 2015 from the Oriental Bank of Commerce, Khalra Branch – Tarntaran, stating that Sukhwinder Singh R/o VPO Ratoul, holds a fixed deposit account, account number 01083033005562, for an amount of “Rs. 22,14,109.00”.

    4. On 19 February 2016 the visa holder was granted a subclass 573 visa after being found to satisfy all the relevant requirements.

    5. On 11 March 2016 the Department received adverse information regarding the evidence of finances the visa holder provided with his application.

    6. On 14 March 2016 the Oriental Bank of Commerce, Khalra Branch-Tarn Taran advised the Department that the fixed deposit account, account number 01083033005562, held in the name of Sukhwinder Singh S/o Kartar Singh, does not exist in the branch office Khalra.

    7.I consider that the answer provided by the visa holder on page 13 of the application form, at Question 42, where it asks, “Do you have access to sufficient funds to support you and your family unit members for the TOTAL period of your stay in Australia (including proposed course fees for you and any school-age family members, living costs and travel costs, regardless of whether your dependants intend to accompany you to Australia?)”, and his response was “Yes”, is incorrect, as the visa holder did not have access to sufficient funds to support his stay in Australia.

    8. Based on the information before me, I consider that the visa holder did not comply with section 101(b) of Subdivision C of the Migration Act.

    Section 103 Bogus documents not to be given etc.

    9. The visa holder submitted a certificate dated 23 October 2015 from the Oriental Bank of Commerce, Khalra Branch – Tarntaran, stating that Sukhwinder Singh R/o VPO Ratoul, holds a fixed deposit account, account number 01083033005562, for an amount of “Rs. 22,14,109.00”.

    10. As the Oriental Bank of Commerce, Khalra Branch-Tarn Taran advised the Department that the fixed deposit account, account number 01083033005562, held in the name of Sukhwinder Singh S/o Kartar Singh, does not exist in the branch office Khalra, the visa holder provided a bank certificate which is counterfeit or has been altered by a person who does not have authority to do so.

    11. Based on the information before me, I consider that the visa holder did not comply with section 103 of Subdivision C of the Migration Act.

32. On 13 March 2024 the applicant provided a statement to the Tribunal. On the same date a written submission was provided to the Tribunal on the applicant’s behalf, and supporting documents, as summarised in the submission as follows:

    1.     Manavdeep - Statement - 13 March 2024

    2.     Manavdeep - Kent - Academic Transcript - 16 Feb 2024

    3.     Manavdeep - CoE (Bachelor of Business - Kent) - 23 Nov 2015

    4.     Manavdeep - CoE (Cert 3 Cookery) - 17 Jun 2016

    5.     Manavdeep - CoE (Cert 4 Cookery) - 17 Jun 2016

    6.     Manavdeep - CoE (Diploma Hospitality) - 17 Jun 2016

    7.     Manavdeep - Statement of Attainment (Cert 3 Cookery) - 22 Feb 2024.

    8.     Manavdeep - Marriage Certificate

    9.     Manavdeep - Support Letter (Sri Guru Singh Sabha Craigieburn - 12 March 2024

    10.  Manavdeep - Support Letter (Sikh Community Greater Geelong) - 13 March 2024

    11.  Raminder Kaur - Support Letter (Sister in Law) - 12 March 2024

    12.  Gurinder Singh - Support Letter (Uncle) - 10 March 2024.

33. Both the statement and submission acknowledge that a bogus document was provided evidencing financial support. There are explanations for the provision of this document, albeit it is acknowledged that there was knowledge by the applicant that the document was bogus. It is claimed, however, that the applicant did have financial support to cover the cost of his studies and stay in Australia.

34. The applicant in the first hearing acknowledged the provision of a bogus document.

35. As indicated, after the first hearing and the provision of written submissions on behalf of the applicant, the Tribunal determined that the non-disclosure certificate was invalid. As a result, it sent to the applicant the four documents covered by the non-disclosure certificate.

36. A subsequent written submission was made in advance of the second hearing indicating that the documents make clear that the applicant did not provide the bank statements as part of his student visa application. One of the documents on the Departmental file is quoted as indicating ‘there is no evidence of funds on the application’. Another document indicates that the Department obtained the bank statements from the applicant’s education provider, Kent Institute, which were the documents that were verified by the Department. Reference is made to other indications in documents on the Departmental file that the bank statements had been provided by the applicant to the education provider.

37. It is submitted that therefore, the applicant did not provide the bogus bank statements to, as is required, ‘an officer, unauthorised system, the Minister, the Immigration Assessment Authority, or Tribunal’ as the section requires. It is submitted, therefore, that there is no non-compliance with s 103. It is also submitted that the s 107 notice is incorrect in relation to s 101 as it indicates the applicant submitted the bank statements with this application, but it is clear that this is not the case.

38. In relation to these submissions, the Tribunal agrees, from information on the Departmental file, that the non-genuine bank statements were not provided as part of the application for the student visa.  The Tribunal agrees that documents indicate that the bank statements were obtained from the applicant’s education provider. Documents on the Departmental file persuade the Tribunal that the non-genuine bank statement was provided to the Department from the education provider and that they were not provided as part of the student visa application.

39. As the s 107 notice states that the non-genuine bank statement was provided to the Department when in fact the information on the Departmental file does not support this, and rather, it was obtained by the Department from the education provider, there was not non-compliance in relation to s 103 in the way set out in the s 107 notice.

40. It remains to be considered whether it is reasonably established that the applicant provided incorrect information under s 101 in stating that there were adequate financial resources to support study in Australia. It is submitted that the s 107 notice refers, in reaching this conclusion, to the non-genuine bank statement being provided to the Department, which is not the case. On that basis there is not, it is submitted, a breach of s 101.

41. The Tribunal does not agree with this submission. The clear basis of the conclusion that it was incorrect to state that the applicant had access to adequate financial resources to fund study in Australia is the fact that the bank statement provided is fraudulent. The applicant has acknowledged that the bank statement is fraudulent. It is implicit in the s 107 notice, although not specifically stated, that if the applicant needed to obtain fraudulent evidence of financial support, there was not genuine financial support. While the s 107 notice does state that the bank statement was provided to the Department, this in itself is not the basis on which the s 107 notice determines the incorrect information has been provided. It is only incidental to the conclusion that incorrect information was provided that the bank statement is incorrectly stated as being provided to the Department. The pertinent and relevant fact is that the bank statement is fraudulent, which is acknowledged, and to whom it was provided is irrelevant to the conclusion that the applicant incorrectly stated access to sufficient financial resources. It is clear that even if the fraudulent bank statement was not provided as part of the student visa application, it was obtained and provided to the education provider as part of the requirements to enable study in Australia.

1. The Tribunal also notes that the applicant, while acknowledging that the bank statement is non-genuine, has claimed that there were adequate family resources to cover his study and the provision of the bogus bank statement was to overcome logistical issues in providing a bank statement covering more than three months.

2. This has been an issue explored with the applicant at all three hearings. A key reason for convening the third hearing was to further question the applicant on this issue.

3. Given all the evidence on this issue, it is not established to the Tribunal’s satisfaction that the applicant provided incorrect information in the student visa application form in stating that there were adequate financial resources, even though a bogus bank statement was obtained. The Tribunal considers it to be a reasonable possibility that there were adequate financial resources and the bogus document was obtained because on the inability to meet requirements as to the length of time funds had been held. In this respect, the Tribunal takes note of the fact that the applicant has readily acknowledged upfront that the bogus financial document was obtained with his knowledge, which lends some credence to the truth of the explanations for its creation. In cases of this sort, the Tribunal would normally expect and see a blanket denial of knowledge of the document being bogus.

4. The Tribunal is not satisfied that the applicant provided incorrect information in the visa application form in answering the question ‘yes’ as to adequate financial resources.

5. The Tribunal is therefore not satisfied that there was non-compliance with s 101 in the way described in the s 107 notice.

6. For these reasons, the Tribunal finds that there was not non-compliance with s 103 and s 101 of the Act by the applicant in the way described in the s 107 notice.

7. Thus, the grounds of cancellation have not been made out.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Higher Education Sector (Subclass 573) visa.

   David McCulloch
   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.