Sukhmanpreet Kaur (Migration)

Sukhmanpreet Kaur (Migration) [2022] AATA 4716 (3 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sukhmanpreet Kaur
REPRESENTATIVE:  Bikkar Singh BRAR (MARN: 0320569)
CASE NUMBER:  2112407
HOME AFFAIRS REFERENCE(S):          BCC2020/2362370
MEMBER:Michael Biviano
DATE:3 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 3 October 2022 at 4:50 pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – educational qualifications – marital status – bogus documents – allegations against migration agent – employment history – emotional and financial hardship – maintaining enrolment in a higher level course – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 499; Direction No.69
Migration Regulations 1994, Schedule 2, cl 500.212; Schedule 8, Condition 8202; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that:-
(a)the applicant gave incorrect answers in her visa application for the student visa which was lodged on 8 November 2019 (2019 application) that:-
(i)her father’s name was listed as Swaran Singh with a date of birth of 1 January 1967 when the supporting documentation provided including her Indian Passport [Number 1] and Government of India Tax Department identity card confirmed her father was Harjit Singh. It appeared that Swaran Singh was her grandfather;
(ii)she stated in her application that she was not married, when at the time of the application the delegate found that she was married to Robinpreet Singh and their marriage was solemnized on 22 September 2019; and
(iii)she had stated in her application that she did not have any other members of her family unit who had not been already included as an accompanying member of the family unit, when she was married to Robinpreet Singh, who was a member of her family unit and ought to have been declared in the application; and
(iv)she had stated that the highest level of schooling completed was a bachelor’s degree and she had attained a Bachelor of Science at Adesh University India, when the Registrar of the University confirmed that she had not completed this qualification and the Statement of Marks and Degree Certificate submitted were all fabricated documents;
in contravention of s 101(b) of the Act; and
(b)she provided in support of her application for a student visa:-
(i)Bachelor of Science Degree Certificate, Adesh University, Serial no. 652155, date of issue 11 June 2019 (Certificate).
(ii)Statement of Marks, Adesh University, Serial no. 669847, date of issue 11 December 2016 (2016 Statement).
(iii)Statement of Marks, Adesh University, Serial no. 029745, date of issue 8 December 2017 (2017 Statement).
(iv)Statement of Marks, Adesh University, Serial no. 301487, date of issue 19 December 2018 (2018 Statement).
which the Registrar of Adesh University confirmed by letter dated 3 October 2020 that those documents were fake and fabricated and had not been issued by the University. The delegate considered the documents were bogus because they purported to have been issued but were not issued in respect of the applicant, as the listed graduate, in contravention of s 103 of the Act.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 24 June 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
The Tribunal notes that the applicant is a 24-year-old Indian national who obtained a Student (Class TU) (Subclass 500) visa on 19 November 2019, which had a visa expiry date of 28 February 2022. The Decision Record of the delegate of the Department of Home Affairs dated 8 September 2021, which was provided to the Tribunal by the applicant, confirms the Department cancelled the student visa and the reasons for the cancellation of the visa (Decision Record).
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
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The s 107 notice was constituted by the Notice of Intention to Consider Cancellation (NOICC) dated 6 August 2021. The non-compliance identified and particularised in the s 107 notice was non-compliance with section 101(b) and 103 of the Act in the following respects:
(a)On 8 November 2019, the applicant lodged an application for a Student (subclass 500) visa, via the electronic lodgement portal. In the application form (Record of Responses), the applicant provided the following information which is in bold:
Family name: SUKHHMANPREET KAUR
Given name: SUKHMANPREET KAUR
Sex: Female
Date of birth: 01 Nov 1997
Passport number: [Number 1]
Country of passport: India – IND
Date of issue: [2017]
Date of expiry: [2027]
Relationship status: Never Married
Are there any accompanying members of the family unit included in this application? No.
Does the applicant have any members of their family unit that have not already been included as an “Accompanying member of the family unit” in this application? No.
Other family members
Relationship to primary applicant: Parent
Family name: SWARAN SINGH
Given name: SWARAN SINGH
Sex: Male
Date of birth: 01 Jan 1967
Relationship to primary applicant: Parent
Family name: PARAMJIT KAUR
Given name: PARAMJIT KAUR
Sex: Female
Date of birth: 16 Mar 1978
Genuine temporary entrant
Give details to support the applicant’s ability to meet the criteria and ensure supporting documents are attached
“I have complete my BSC from Adesh University in the year of 2018. Later I started job as a medical sales representative at Nirvana Hospital from 06 Aug 2018 to till date. Now I have apply for English language program leading to Masters of Public Health Extension from Wollongong University. My parents are sponsoring me for my further studies in Australia.”[sic]
Education history
Give details of the applicant’s highest level of schooling completed outside Australia
Highest level of schooling completed: Bachelor degree (including honours) or equivalent
Course name: Bachelor of Science
Institution name: Adesh University
Country of institution: India
(b)In support of the application, the applicant uploaded copies of the following documents to support her identity:
(a)Government of India Income Tax Department, Permanent Account number [Card 1], in the name of Sukhmanpreet Kaur (DOB 01/11/1997). Her father’s name was listed as Harjit Singh on this card.
(b)Republic of India passport [Number 1], in the name of Sukhmanpreet Kaur (DOB 01/11/1997). On this document, her parents were listed as Harjit Singh (father) and Paramjit Kaur (mother).
(c)The applicant also uploaded copies of the following documents to further support her visa application, to indicate that she had completed qualifications in India:
(i)Punjab School Education Board, Matriculation Examination Certificate, serial no. 16110187, examination held in March 2013, certificate dated 02 February 2017;
(ii)Punjab School Education Board, Senior Secondary Examination Certificate, serial no. 255630, examination held in March 2015, certificate dated 07 February 2017;
(iii)the Certificate with Serial no. 652155 and date of issue of 11 June 2019; and
(iv)IELTS Test Report Form, (International English Language Testing System) dated 8 December 2018, Candidate number 379904, in name of Sukhmanpreet Kaur, with overall band score of 6.5.
(d)Based on the information provided in your Student (subclass 500) visa application, including copies of educational qualifications, the applicant was granted a Student (subclass 500), to enable the applicant to study in the Higher Educational sector within Australia.
(e)On 14 September 2020, the Department received information from an anonymous source, which indicated that the applicant:-
(i)may have provided a fake educational certificate in support of her Student visa application. It was alleged that the Certificate was a bogus document and her real educational history only extended to Year 12 in India;
(ii)was unable to pass the English course requirement for the University of Wollongong because her study level is only at year 12; and
(iii)has a husband by the name of Robinpreet Singh, who resides in India.
(f)Departmental records indicate a visa applicant by the name of Robinpreet Singh (DOB 12/10/1997) lodged an application for a Visitor (subclass 600) visa on 27 February 2020, on the basis of wishing to visit his spouse. The applicant provided a letter of invitation/statement for that visa application, dated 15 February 2020, in which she stated in part:-
I am inviting my husband Robinpreet Singh (Passport [Number 2]) to visit Australia from 9 March till 23 March to spend quality time with me…
Included with that application was a copy of a marriage certificate, [Serial Number 1]. This document states the date of solemnization of the marriage between the applicant and Robinpreet Singh was 12 November 2019, with the marriage registered on 20 November 2019. The Visitor visa application was refused on 17 March 2020.
(g)On 12 October 2020, the applicant applied for a further Student (subclass 500) visa (2020 application), to study within the Vocational Education sector. Robinpreet Singh (DOB 12/10/1997) applied as a secondary applicant as a member of the family unit (spouse). Included with this application were the same educational documents from Adesh University which included the Statements and the Certificate purporting the applicant had studied a Bachelor of Science (Medical), obtained pass marks in each subject undertaken. Also included with the application was a copy of a marriage certificate, document [Serial Number 2]. This document purported the date of solemnization of marriage between the applicant and Robinpreet Singh was 22 September 2019, and the marriage registered on 22 November 2019. This document differs from the copy of marriage certificate provided by Robinpreet Singh in his Visitor visa application. At the time of the NOICC the 2020 application was pending final assessment.
(h)The delegate considered the evidence and found that the applicant had breached s 101(b) for providing incorrect information on the visa application and s103 for submitting bogus documents. The delegate made the following findings after considering the evidence:-
Based on the above information, I consider you have failed to comply with section 103 of the Act because you have provided at least four bogus documents, as part of your Student visa application dated 8 November 2019. The university where you claimed you completed a Bachelor of Science, have verified that you were not registered as a student and the Statement of Marks documents and Bachelor of Science Degree certificate are all fabricated documents, and were not issued by Adesh University.
I further note in your Record of Responses for that visa application dated 8 November 2019, under sub-section “Other family members”, your father was listed as Swaran Singh (date of birth 01 January 1967). Your supporting documentation provided by way of Indian passport [Number 1] and Government of India Tax Department identity card, both detail your father to be Harjit Singh.
Further supporting signed affidavits included in the visa application suggest Swaran Singh may be your grandfather. It is unclear as to why he is listed as your father however, it does constitute an incorrect answer in your visa application.
In addition, it is noted in your Record of Responses, you declared you did not have any other members of your family unit, either accompanied or unaccompanied, and declared you had never been married. This is contradictory to subsequent information provided by your claimed spouse Robinpreet Singh and yourself, both indicating Mr Singh is a member of your family unit, for the purposes of later visa applications.
Two different marriage certificates have been provided to the Department, with differing dates of solemnization of marriage as well as differing dates of registration of the marriage. This would suggest at least one, or possibly both of these documents, may also be bogus.
Upon initial inspection of both versions of electronically submitted documents, I consider the original appears to be document labelled [Serial Number 2], with date of marriage as 22 September 2019. There is a scannable QR code on the right top corner of the document, which is notably absent on the alternate copy of the certificate. The latter certificate also depicts evidence of change of serial number and dates recorded on the document by superimposing alternate numbers.
Whilst the submission of a possible bogus marriage document for purposes of Mr Singh’s Visitor visa application and/or your subsequent Student visa application, which is still pending, is not relevant for purposes of this visa cancellation consideration, the provision of incorrect information relating to your marital status, in your record of responses on 8 November 2019, is relevant. I consider you may have deliberately provided incorrect information about your marital status, in an attempt to have your Student visa application appear more favourable, particularly with the support of your father’s or grandfather’s income, as opposed to your spouse.
The delegate then concluded in the NOICC that the applicant had failed to comply with section 101(b) of the Act because the answers provided in the 2019 application were incorrect as follows:
·      In response to the question: Relationship status? The applicant answered, “Never Married”, which the delegate considered incorrect because:
othere was evidence before the Department she was married to Robinpreet Singh.
oshe provided a copy of her marriage certificate, document [Serial Number 2], indicating her marriage was solemnized on 22 September 2019.
oshe declared in a statement dated 15 February 2020, in support of her spouse’s Visitor visa application, that she was married to Robinpreet Singh.
·      In response to the question: Does the applicant have any members of their family unit that have not already been included as an “Accompanying member of the family unit” in this application? The applicant answered, “No”, which the delegate considered incorrect because:
othere was evidence before the Department she was married to Robinpreet Singh and they were married prior to lodging the student visa application on 8 November 2019.
othe Department holds a copy of her marriage certificate, document [Serial Number 2], indicating her marriage was solemnized on 22 September 2019.
oby definition of “member of the family unit” under migration legislation, Robinpreet Singh (DOB 12/10/1997) is a member of the family unit as he is the applicant’s spouse. He should therefore have been declared as a non-migrating spouse.
·      In response to the question: Other family members? The applicant answered that one of her parents (father) was SWARAN SINGH, date of birth 1 January 1967, which the delegate considered incorrect because:
oher Indian passport, [Number 1] lists her father as Harjit Singh.
oher Government of India Income Tax Department identity [Card 1], lists her father as Harjit Singh.
·      In response to the question: Give details of the applicant’s highest level of schooling completed outside Australia: The applicant answered:
[9492
Highest level of schooling completed: Bachelor degree (including honours) or equivalent
Course name: Bachelor of Science
Institution name: Adesh University
Country of institution: India
The delegated considered the responses incorrect because:
·the documents the applicant provided in support of her claim of having completed this qualification are bogus documents and do not support her claim;
·the Registrar of Adesh University has confirmed that the applicant was not a registered student of the Bachelor of Science Medical at Adesh Institute of Medical Sciences and Research, Bathinda;
·Adesh University has confirmed the Statements and the Certificate were fabricated and were not issued by the University;
·in accordance with the definition of a bogus document, as detailed in section 5(1) Interpretation, under the Migration Act, a bogus document is one that the Minister reasonably suspects is a document that purports to have been, but was not, issued in respect of the person. The educational documentation submitted to the Department by the applicant, purports to have been, but was not issued in respect of the applicant; and
·there is no other evidence of genuine documents before the delegate to support the applicant’s claim to have completed any degree qualification at Adesh University or elsewhere.
(i)The NOICC confirmed that if the applicant has provided incorrect information and provided bogus document(s) in the course of her visa application, then her visa may be cancelled under s109 of the Act for non-compliance with sections 101(b) and 103 of the Act.
The applicant provided a statement to the Department on 15 August 2021 which was signed by her in response to the NOICC (Response). The Response sought to provide an explanation to the issues regarding the bogus document and the contents of the visa application which were incorrect:-
My name is Sukhmanpreet Kaur. I am an international student. I am writing this statement to provide a response in relation to your correspondence dated 6 August 2021, regarding your intention to cancel my Student Visa.
For the following reasons, I believe that, my Student Visa should not be cancelled:
The issue of my relationship status: I would like to note that, the response that I provided about my relationship status (‘Never Married’) in my Student Visa application lodged on 8 November 2019 was a human error. I apologize for this mistake please. As mentioned in your correspondence, my correct marriage date is 22 September 2019. I would like to note that, there is no benefit to me to state that I was ‘never married’ in my application. On the contrary, having a member of my family unit back in my country can strengthen my chances of success of visa being granted.
As a result, my response to the question: ‘Does the applicant have any members of their family unit that have not already been included as an “Accompanying member of the family unit” in this application?’ should have been a ‘Yes’.
About my other family members (father): I would like to note that, my Student Visa application form was filled out by my previous agent; and the name of my father seems to be wrongly stated as ‘Swaran Singh’. My father’s name is ‘Harjit Singh’, as stated in my passport, as well as in his ‘India Income Tax Department identity [Card 1]. Unfortunately, such mistakes happen in India, as the agents don’t always pay the necessary attention. Once again, I apologize for this, and admit that I should have checked the application form before it was lodged.
Regarding my highest level of schooling completed outside Australia: I would like to note that, I did complete Bachelor of Science degree at Adesh University in India, as stated in my Student Visa application. Please note that, I have completed this program as a distance learning program. I am surprised that the Registrar of Adesh University has confirmed that I was not a registered student of them and that the ‘Statement of Marks’ I have provided with my application were ‘fabricated and were not issued by the University’.
I would like to note that, I have tried to ring the University many times to rectify this wrong information that they have provided to the Immigration Department. Once I was able to get connected to them, and talked to an Admin staff, and explained them the situation, and I was told that I would need to contact them again to find out the outcome.
I would appreciate if you could take into account the fact that, it is extremely difficult to get information from India, due to the Covid-19 pandemic. In addition to that, the system of India does not always work smoothly as it is in Australia.
I continue to try contact them to find out the outcome of my enquiry, so that my Student Visa would not be cancelled and my future applications would not be jeopardized.
If the Department could give sufficient time, then I can assure you that I will do everything to provide you with evidence to allay your concerns about the documents that I have provided in relation to my Student Visa application please.
Based on the above information, I believe that, my Student Visa should not be cancelled.

The applicant in the Response admitted the visa application was incorrect with regard to her father being married and omitting to declare her husband as a non-accompanying family member. However, the applicant maintained she has completed the Bachelor of Science at Adesh University by way of a distant learning program and denied that the documents were forged.
At the hearing the applicant gave evidence which reiterated the admissions of the incorrect information in the visa application that her father name’s was incorrect, she was married on 22 September 2019 and she was married at the date of the visa application and she omitted to declare her spouse as a non-accompanying family member.
The applicant also gave evidence at the hearing regarding her studies at Adesh University and obtaining the Certificate and the accompanying Statements that:-
(a)she had not studied the Bachelor of Science or any other course at Adesh University and she was not awarded the Bachelor’s degree. Such admission by the applicant confirmed that the Certificate and the Statements were not genuine and were bogus and that she had lied to the Department in the Response about obtaining such qualifications by the distant learning program;
(b)she did not know how the documents were produced or what documents were submitted with her application;
(c)she did not work as medical sales representative from Nirvana Hospital as claimed in her visa application;
(d)she claims that she had only completed schooling in India to a Year 12 level and that she undertook an IELTS test;
(e)she engaged a family relative of her husband, Gurnam Singh as her education/migration consultant to prepare the documents for her visa application. She claims that she never met him. He took the details of her passport, secondary school results and IELTS test results and prepared her visa application. She claims that he did everything and her family paid him 25 Indian lakh, which is approximately A$47,000 to obtain the visa. She claims that he produced all the documents;
(f)she obtained the student visa on 19 November 2019 to come to Australia to study the Master of Public Health which she was to study at the University of Wollongong. She was unable to commence studies in that course because she failed the English Language course;
(g)she then relocated to Melbourne to live with relatives she has in Melbourne and enrolled in a Certificate III in Individual Support and a Diploma of Community Support at ETA College in or about mid 2020. She admitted providing the bogus qualification to her education agent to arrange the enrolment at ETA College, notwithstanding she knew they were bogus;
(h)she claims that she has sought to contact the education agent back in India but he has blocked her calls; and
(i)she claims that her Study plans are in disarray due to the cancellation and she is unable to study or work. Further her relationship with her husband and his family is strained.
In light of the admissions in evidence at the hearing, the applicant has conceded she did not study at Adesh University, and that the Certificate and Statements are not genuine and are bogus documents.
Further, her visa application was incorrect as to the highest level of studies completed, her qualifications completed and her work history in that she did not:-
(a)complete a bachelor’s degree or honours equivalent;
(b)complete a Bachelor of Science (Medical); and
(c)work as a sales representative at Nirvana Hospital.
The applicant by the Response and in evidence at the hearing has admitted both in evidence and the Response, the non-compliance with s 101(b) and 103 of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) and s 103 of the Act by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The applicant claimed in the Response that the visa should not be cancelled for the following reasons:
(a)her future visa applications will be jeopardised, which would impact her ability to remain in Australia and continue her studies here; and.
(b)COVID-19 pandemic has affected the operations of Adesh University and she requires more time to liaise with them regarding her records.
The applicant in evidence at the hearing no longer pursued that she needed more time to liaise with Adesh University. She claimed that her visa should not be cancelled because:-
(a)she had trusted her husband’s relatives in preparing the application and was not aware of the contents of the application and the preparation of the bogus documents for the initial application by the agent; and
(b)her family had spent a very large sum of money, 25 Indian lakh to obtain the visa and spent additional monies on her tuition including studying a Certificate III in Individual Support and getting enrolled in a Diploma of Community Support, which she wished to complete her studies here in Australia, to work in a hospital or aged care so that she can repay her parents.
The difficulty with the applicant’s application is that she has provided incorrect information on her visa application on a number of matters, which merely cannot be explained due to administrative errors or inadvertent disclosures. Those errors go to:-
(a)the name of her father – which the application incorrectly named her grandfather;
(b)being married at the time of the application and failing to provide the name of her spouse, when the application stated she was not married;
(c)not providing details of other non-accompanying members of her family – her spouse;
(d)providing details of her education back in India, with the highest level being a Bachelor’s degree and that she had completed a Bachelor of Science (Health) at Adesh University when she had not completed that course; and
(e)her work history at Nirvana Hospital as a sales representative, when she had not worked in such a position or at the hospital.
The applicant claimed in evidence that her family paid the fee to get her a visa and she had no knowledge what the agent was going to do in relation to the application. She claimed in evidence that she provided some supporting documents including the passport and the IELTS test result, but the agent completed the application and selected the course and she went along with his selections. She claims that the plan was for her to come to Australia to study and her husband would then join her in Australia.
She repeatedly claimed that she did not know what has happened. She claimed when the visa was approved the agent sent her visa documents and the supporting documents which included the Certificate and the Statements. The applicant did not question those documents or the grant of the visa. She gave evidence that when she saw those documents, she was aware that they were not genuine but were bogus. Nevertheless, knowing that the visa had been obtained based on the bogus Certificate and Statements, she sought to rely on them and come to this country and study.
The applicant having paid a very large sum of money to get a student visa, through someone she had never met, without reviewing the agent’s credentials and the visa application, ought to have placed the applicant on warning that some of the information in the application was incorrect. That was further supported by the provision of the bogus documents.
The mere fact that an agent prepared the application, does not provide the applicant with a valid reason for the incorrect information in the application. S 98 of the Act provides:-
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
The effect of that provision is that the parliament has legislated that an applicant is responsible for an application as if they had completed it, even if they did not fill it in.
Further the applicant has relied on the bogus documents in the 2019 application, but also in applying for the Student Visa with her spouse accompanying her in the 2020 application, while in Australia where she also claimed that she had obtained a Bachelor of Science at Adesh University and worked at Nirvana Hospital. She also claimed in evidence that she relied on the Bachelor of Science to assist her to enrol in the Certificate III in Individual Support and Diploma of Community Support. The fact that she has relied on the documents to her advantage when she knew they were fake and bogus raises serious questions as to her actual knowledge in their preparation.
The provision of such bogus documents and incorrect information for the purposes of obtaining a visa and circumventing a genuine assessment of her circumstances are serious matters.
When considering the provision of the bogus Certificate and Statements in conjunction with the incorrect information on the visa application, had the correct information been provided to the decision maker, it is probable that the visa application would have been refused by the decision maker, in light of:-
(a)the applicant applied for a visa to undertake for a Master of Public Health qualifications, in circumstances where she had not completed a degree or any other tertiary courses;
(b)the applicant in evidence claimed that she had a gap of 2-3 years where she did not do anything before she was married; and
(c)the fact she was married and details of her spouse are relevant to a visa application. Being married may weigh against the grant of the visa, depending on the spouse’s circumstances as the applicant is at liberty to make application to have her spouse join her here as a dependent.
The applicant accepted in the Response that it was her responsibility to review the visa application prior to the lodgement to ensure that the application was correct.
The Tribunal considers that the applicant’s actions and indifference to the contents of the visa application, which incorrect information was restated in the October application (as to the name of her father, the studies and qualification obtained back in India and her work history at Nirvana Hospital), and coupled with the continued use of the bogus documents, the Tribunal finds that the incorrect information in the application was not inadvertent or arose due to an administrative error, but was a deliberate attempt to mislead the Department to obtain the grant of a visa.
The Tribunal considers such non-compliance with s 101(b) and 103 is of a serious nature.
Assessment of factors
The Tribunal has assessed the applicant’s Response and all the prescribed circumstances as set out in reg 2.41 as follows:
(a) The correct information
As discussed above the applicant had incorrectly declared in the 2019 application that:-
(a)the application incorrectly stated her grandfather, Swaran Singh. The correct information is that the name of her father is Harit Singh;
(b)in relation to relationship status the applicant claimed “Never Marrid”. The correct information is that she was married at the time of the application to Robinpreet Singh, whom she did not declare in the visa application;
(c)in relation to whether there were any other members of her family unit that have not already been included as an “Accompanying member of the family unit” in the application, the response was “No”. The correct information is that she had a spouse Robinpreet Singh;
(d)in relation to the highest level of schooling completed she responded “Bachelor degree (including honours) or equivalent” and named that she had completed a Bachelor of Science at Adesh University. The correct information was that she had not studied at Adesh University and she does not hold a Bachelor of Science from that University.
She also provided the Certificate and the Statements, which the applicant admitted were not genuine but fake. The Tribunal finds that they are bogus in accordance with section 5(1) of the Act.
As discussed above at paragraphs 23 to 35, the applicant claims that the agent was responsible for the application and preparation of the bogus documents. However having regard to the operation of s 98 of the Act and use of that information and the bogus documents by the applicant, especially after they came to her attention on her evidence, reveals that the applicant was aware she obtained the visa on the basis of bogus documents and incorrect information. The mere fact it was prepared by an agent who she claims prepared everything and selected the course, does not alter fact that she is responsible for the incorrect information in the application form.
The Tribunal gives this consideration substantial weight in favour of cancelling the visa.
(b) The content of the genuine document (if any)
The applicant admitted that the Certificate and Statements were fake and not genuine.
The documents submitted in support of the applicant’s visa application were bogus. They were relied upon by the decision maker to lead them to believe that the applicant had completed a Bachelor of Science and passed numerous subjects over a three-year period. The bogus documents led the decision maker to believe that the applicant had met the requirements for a grant of a Student visa.
The Tribunal gives this consideration substantial weight in favour of cancelling the visa.
(c) Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal notes that in assessing the applicant’s eligibility for the visa, one of the requirements the delegate assessed was whether the applicant satisfied cl 500.212, as to whether she was a genuine applicant for entry and stay as a student.
In making that assessment as to whether the applicant is a genuine temporary entrant, the applicant’s circumstances as a whole would need to be considered to determine that this requirement is satisfied. In assessing those matters, regard is had to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The decision maker will have regard to a number of circumstances including:
(a)the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
(b)the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
(c)if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
(d)any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Tribunal finds that the decision to grant the visa was based on the incorrect information and bogus documents provided by the applicant.
The bogus documents and incorrect information supplied in relation to her obtaining the Bachelor of Science, demonstrated that she was seeking to further her career prospects and obtain a Master of Public Health, which was a Higher Education course providing her with career progression and would have been central in the delegate’s assessment as to whether the applicant was a genuine temporary entrant.
Further if the applicant had applied for a student visa to undertake vocational courses, in particular the courses she enrolled in subsequently, the Certificate III in Individual Support and Diploma of Community Services, without undertaking further study in India after completing her secondary schooling and together with a gap of several years from completing her secondary schooling, her study history and gap would from schooling would have been closely assessed. It is probable that had the applicant provided the correct information that she had not studied and not completed the Bachelor of Science, it would have affected the Tribunal’s decision to determine that she was a genuine temporary entrant and she would have not been granted the student visa. This is supported by the conduct of the agent in obtaining the bogus documents and stating on the application the incorrect study history. If the agent considered that the Department was likely to grant the student visa – it is unlikely he would have completed the 2019 application with an erroneous study history and qualification and obtained the bogus documents.
The matters pertaining to the identify of the applicant’s father, the applicant being married at the time of the application and being a member of the applicant’s family unit may have impacted on her circumstances such as her financial status or whether she and her husband were in a relationship of concern for the grant of the visa. While on one view the fact that the applicant was married may provide a substantial tie for the applicant to return home, on another view it enables the applicant and her spouse to apply for a dependent visa, and establish her own immediate family here which would establish a strong tie to remain here. In any event this information was relevant and may have impacted the delegate’s decision and the delegate may have made a different assessment.
Accordingly, the Tribunal gives this consideration substantial weight in favour of cancelling the visa.
(d) The circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant submitted incorrect information and bogus documents when she submitted an application for a student visa.
As discussed above and set out in evidence at the hearing the applicant stated that the application was lodged by an agent who she had not met, who completed the application and provided her with the bogus documents, which she knew to be fake and not genuine. She has used the documents in the 2020 application and to gain her enrolment in the Certificate III in Individual Support. She had paid an exorbitant fee for the visa and she had no input in the courses selected or its preparation and not meeting with the agent, which would have placed her in a position that she was wilfully blind to the content of the application and that she would have suspected that documents been produced and responses provided in the application, may not have been correct.

The applicant could not have reasonably believed that the visa application had been lodged with all the correct information and that the Certificate and Statements were genuine. She was aware that she had not studied at Adesh University and not completed the Bachelor of Science.
Despite that position, the applicant persisted in pursuing studies here using the visa.
Any argument that the agent provided the incorrect information in the visa application must be considered in light of section 98 of the Act, which makes her responsible for the responses in the 2019 applications.
Accordingly, the Tribunal does not accept that the provision of the visa application form with incorrect information and bogus documents were due to circumstances beyond her control. It was open to the applicant to insist on the agent to provide her with the application and all documents before they were submitted to the Department.
The Tribunal gives this consideration substantial weight in favour of cancelling the visa.
(e) The present circumstances of the visa holder
The applicant arrived in Australia in November 2019 holding a student visa to study English for Tertiary Studies together with the Master of Public Health at the University of Wollongong.
The Student Report submitted by the applicant from University of Wollongong confirmed that the applicant had achieved a grade of F in the English for Tertiary Studies course which had a course start date of 11 November 2020 (sic 2019) and a course end date of 14 February 2020.
The applicant claimed in evidence due to her poor result in the English course she was prevented from studying the Master’s degree. She decided to relocate to Melbourne and the Decision Record confirms she located to Tarneit. The applicant in evidence claimed that she decided to surround herself with family and went to live with her uncle, aunt and cousin in Victoria.
The applicant enrolled in a Certificate III in Individual Support and Diploma of Community Support at ETA College (ETA Courses). The Decision Record confirms that she completed the Certificate III in Individual Support. However the applicant in evidence claimed that she had to cease studies including her enrolment in the Certificate III and Diploma when her visa was cancelled and she did not submit any qualifications that she had obtained in Australia to the Tribunal.
The applicant gave evidence that she was not working and has lost both study rights and work rights by reason of the cancellation of the visa. She has been supported by her family here. The applicant confirmed that she is not currently undertaking any study or work (including volunteer work).
The applicant gave evidence that if the cancellation of the visa is set aside, she intends completing the ETA Courses and obtaining employment back in India either in a hospital or aged care facility, so that she can repay her parents for their financial support while here in Australia. She claims that obtaining qualifications in Australia will be important to her future.
The Tribunal accepts that by reason of visa cancellation she has lost both study rights and work rights.
The applicant does have ties here that she has developed through studying the ETA Courses and living with her aunt, uncle and cousin since living in Victoria in mid 2020. Such ties do not constitute significant economic ties, but do establish moderate social ties.
The Tribunal notes that if her visa is cancelled, the applicant would no longer hold a visa to lawfully reside and study in Australia. The Tribunal notes that this would cause her both emotional hardship and financial hardship as she would no longer be permitted to study towards an educational qualification in Australia as she had planned and desired to complete which would provide her with substantive employment opportunities working in aged care and hospitals. It would also cause financial hardship, in that the tuition fees that her family has paid, in particular the Certificate III in Individual Support would be lost.
If the visa is cancelled her studies in Australia will cease and she will not be able to seek employment while studying here.
The Tribunal accepts that the applicant has established moderate social ties to Australia with her study, friends and distant family, which would be severed by the cancellation.
The Tribunal gives this consideration some weight against cancelling the visa.
(f) The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant acknowledged both in the Response and evidence, there was some incorrect information included in her visa application. While the incorrect information about her father and husband has been attributed to human error by her agent, it appears that the applicant was aware of the errors about the courses studied and the qualifications, at the latest when she was provided with the documents by the agent on obtaining the visa.
The applicant did not seek to accept responsibility of her obligations under subdivision C of Division 3 of Part 2 of the Act. When she became aware of the bogus documents and incorrect information, she sought to rely on that information and documents (save for the fact she was married), in making the 2020 application and applying for the ETA Courses. Importantly there is no record of the visa holder endeavouring to advise the Department of the correct information of her own volition, prior to issue of the NOICC.
The Tribunal gives this consideration marginal weight against cancelling the visa.
(g) Any other instances of non-compliance by the visa holder known to the Minister
The Decision Record does indicate there are other instances of non-compliance by the applicant.
Immediately prior to the cancellation of the visa, the applicant was enrolled to study a Diploma of Community Services, which is a Level 5 qualification, within the Australian Qualifications Framework (AQF). The visa was granted for purposes of studying within the Higher Education sector, to study a Master’s degree course, which is at level 9 of the AQF.
As the applicant was enrolled at a level lower than level 9, it appears that the applicant failed to comply with her visa condition 8202.
Paragraph 2(b) of condition 8202 requires that a visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. It appears that the applicant has breached her visa condition and been involved in another instance of non-compliance, by not complying with visa condition 8202(2)(b).
The Tribunal gives this consideration some weight in favour of visa cancellation.
(h) The time that has elapsed since the non-compliance
The non-compliance occurred when the applicant lodged her student visa application on 8 November 2019. A period of just over 2 years and 10 months has lapsed since the non-compliance which is not significant. The applicant has developed ties here through studying the ETA Courses and living with her aunt, uncle and cousin since living in Victoria in mid 2020. Such ties do not constitute significant economic ties, but do establish moderate social ties.
Such ties due to their duration and interruption by the cancellation of her visa are not strong. Nevertheless those ties do exist and whilst temporary must be considered in light of this application.
The Tribunal gives this consideration marginal weight against cancelling the visa.
(j) Any breaches of the law since the non-compliance and the seriousness of those breaches
The Decision Record confirmed that there was no information before the delegate to indicate the applicant has breached any laws since the non-compliance occurred. There is no evidence before the Tribunal to suggest otherwise.
The Tribunal gives this consideration marginal weight against cancelling the visa.
(k) Any contribution made by the holder to the community
The applicant in evidence confirmed that she had commenced her studies in Australia, but she had not worked or provided voluntary work with any charitable organisation.
Ultimately her evidence did not reveal that she had made any significant contribution to the community.
The Tribunal gives this consideration marginal weight against cancelling the visa.
Other matters
In making its assessment of the applicant’s evidence, Response and the applicant’s application, the Tribunal has considered the following other relevant matters:
·Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
The applicant obtained a visa on her own and there are no dependents to her visa. While she made an application for a dependent visa in October 2020 with her spouse, that visa application is not the subject of this application.
The Tribunal finds that if it decides to cancel the visa, it will not result in the consequential cancellation of any other person’s visa pursuant to s 140 of the Act.
Therefore the Tribunal gives this consideration no weight in favour of or against cancelling the visa.
·Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
The applicant has not applied for protection nor made any claims that returning to her home country would result in significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations, if the visa were to be cancelled and the applicant had to return to her home country.
The applicant in evidence accepted in evidence that if her visa was ultimately cancelled she would return home.
The policy guidelines require an assessment as to whether Australia would be in breach of its international obligations including the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).
The applicant does not have any minor children in Australia whose interests may be adversely affected if the Tribunal decides to cancel the visa.
In such circumstances the Tribunal does not consider that cancelling the visa would potentially result in a breach of Australia’s obligations under the CROC or the ICCPR.
In all those circumstances, the Tribunal is satisfied that cancelling the visa would not potentially lead to the applicant being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention, or in breach of the Refugee Protocol.
Accordingly the Tribunal gives this consideration no weight in favour of or against cancelling the visa.
·Whether there are mandatory legal consequences to a cancellation decision
A visa cancellation may result in the applicant being detained under s 189 and liable to be removed from Australia under s 198 of the Act as she would no longer hold a valid visa.
If the Tribunal decides to cancel the visa, as a citizen of India it would be open to the applicant to return to that country, to mitigate the possibility of being placed in immigration detention. In such circumstances the Tribunal does not consider there is potential for the applicant to be detained indefinitely.

100. Further the applicant may be subject to s 48 of the Act preventing her from applying for further visas while in Australia and she is likely to be affected by PIC 4013 limiting the granting of a further temporary visa for a specified period, for a period of 3 years from the cancellation.
101. While these matters impose substantive legal consequences that flow upon the cancellation of the visa, the Tribunal notes that is the effect of both the legislation and regulatory framework that has been enacted and put in place.
102. The Tribunal give this consideration marginal weight against cancelling the visa.
·Any other relevant matters

103. The Tribunal is not aware of any other relevant matters to be considered.
Conclusion
104. 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
105. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Michael Biviano
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

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.

[2022] AATA 4716

3 October 2022

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