Swati (Migration)

[2022] AATA 4453

Swati (Migration) [2022] AATA 4453 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Swati

REPRESENTATIVE:  Mr Shukla Satyaprakash (MARN: 2013945)

CASE NUMBER:  2119560

HOME AFFAIRS REFERENCE(S):          BCC2021/2193728

MEMBER:Frank Russo

DATE:26 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2022 at 9:55am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect answers in the visa application – identity details of the applicant’s husband – previous visa grants – current passports – legal change of name – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, 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

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

2. The delegate cancelled the visa on the basis that the applicant did not comply with the requirements of s.101(b) of the Act as the applicant provided incorrect answers in her Student visa application lodged on 16 April 2019.

3. On 16 April 2019, the applicant’s husband lodged a Student visa application under the name of Jigar Kashwer (born on 10 September 1997). The applicant was included in the application as a member of his family unit, as a spouse. The visas were granted on 24 July 2019. On 4 September 2019, the applicant arrived in Australia for the first time.

4. On 16 December 2019 the applicant lodged her own Student visa application as the primary applicant, with her husband (under the name of Jigar Kashwer) included as an Unaccompanied Family Member. The visa was granted on 25 February 2020 and was valid until 10 September 2022.

5. On 12 May 2020 the applicant’s husband (as Jigar Kashwer) lodged an application as a dependant to her Student visa application. This visa was granted to the applicant’s husband on 29 July 2020.

6. Following the grant of the above visas, a Departmental Forensic Facial Image Examiner undertook a facial comparison of the images of the applicant’s husband, Jigar Kashwer, provided to the Department in association with the above lodged visa applications, against the photographs included in a visa application lodged by Neeraj Pal (born on 27 January 1992). The applicant’s husband confirmed that the findings of the Forensic Facial Image Examiner are correct and that he is the same person with two names. The applicant’s husband advised the Department that his actual name is Neeraj Pal (born 27 January 1992) and that he acquired the name Jigar Kashwer (born 10 September 1997) in June 2017, when he applied for a Student visa to travel to Australia. He claimed that he only became aware of the fact that he had a visa and passport in the name of Jigar Kashwer when he met his agent at the airport prior to travelling to Australia.

7. The delegate found that the applicant did not comply with the requirements of s.101(b) of the Act because in her Student visa application lodged on 16 April 2019, she provided an incorrect response to a question about whether her husband currently has, or has ever been known by any other names.

8. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

9. The applicant appeared before the Tribunal by telephone on 10 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

10. The applicant was represented in relation to the review, although the applicant’s representative did not attend the hearing.

11. 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

12. 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.

    Documents considered

13. In addition to her application for review form, the applicant provided the Tribunal with a copy of the delegate’s decision and notice of the decision from the Department, together with a copy of the applicant’s Indian passport, a statutory declaration from the applicant dated 1 December 2021 and a [health treatment] plan dated 3 December 2021. The applicant provided the Tribunal with a response to the hearing invitation.

14. The Tribunal has also had regard to the information contained in the Department file, which includes a copy of the applicant’s application for the Student visa lodged in April 2019, with her husband Jigar Kashwer as the primary applicant and the applicant as an accompanying member of his family unit. The file also includes the following information provided by the applicant with that visa application:

    a.A copy of a wedding invitation for the wedding of Jigar Kashwer to Swati on 11 October 2018, together with four photographs of the wedding ceremony;

    b.Marriage certificate of the applicant to Jigar Kashwer on 12 October 2018, with the date of registration being 6 November 2018; and

    c.Affidavit of the applicant’s parents, dated 9 July 2019.

15. The Department file also contains two emails in response to the notice of intention to consider cancellation of the visa (NOICC), sent by the applicant’s representative on 6 and 8 December 2021, and which include the following documents:

    a.A Form 956, appointing her representative;

    b.A response to the NOICC from the applicant’s representative;

    c.Statutory declaration of the applicant;

    d.Statutory declaration from the applicant’s husband, dated 3 December 2021;

    e.Medical information, including an email from Priority Medical Centre to the applicant, attaching a copy of her [health treatment] plan, a copy of [this] plan and a referral letter from Dr Islam, dated 2 December 2021; and

    f.Payslips from Ranstad.

16. The Tribunal has had regard to these documents.

    Non-disclosure certificate

17. As a preliminary matter, I note that the Department file contains a certificate of non-disclosure issued by the Department under s.375A of the Act, issued on 22 December 2021, which prohibits the disclosure of three documents contained on the Department file relating to the cancellation of Jigar Kashwer’s Student visa. The Tribunal noted at the start of the hearing that the effect of such a certificate, if the Tribunal finds it to be validly issued, is to prevent the disclosure of the documents. The Tribunal noted that the reasons specified in the certificate for the non-disclosure were that the documents may disclose lawful means for preventing, detecting and investigating breaches or evasions of the law and for managing sensitive cases, which would or be likely to prejudice the effectiveness of those methods.

18. The Tribunal noted that it had considered the certificate and noted that it was signed and dated, and that it considered the Department had provided reasonable reasons for why the documents should not be disclosed.

19. The Tribunal indicated that in any case, it would not be relying upon any of the three documents because the relevant information contained in the documents is set out elsewhere in the file, in documents which are not subject to the non-disclosure certificate. The Tribunal noted for instance that the documents subject to the non-disclosure certificate include internal Departmental correspondence regarding the cancellation referral of the applicant’s husband’s visa and noted that such a document offers no relevant information because the cancellation process has already occurred and is referenced elsewhere, including in the delegate’s decision. The Tribunal noted that internal Departmental correspondence relating to the investigations of the applicant’s husband’s visa cancellation, as well as his response to a notice of cancellation from the Department, are also not necessary for the Tribunal to rely upon, as the information has been provided elsewhere in the file, including in the delegate’s decision and the applicant’s response to the NOICC she received from the Department.

20. The Tribunal checked with the applicant whether she understood the information it had provided regarding the non-disclosure certificate and invited her to make any submissions in relation to the validity of the certificate. The applicant confirmed that she understood the information and that she did not wish to make any submissions in relation to the certificate’s validity.

21. The Tribunal confirms that, for the reasons stated above, it has not relied upon any of the documents or information subject to the non-disclosure certificate issued on 22 December 2021 as the information is available elsewhere within the Department file, including in the applicant’s response to the NOICC. The Tribunal therefore considers that the documents subject to the non-disclosure certificate are of no adverse interest or relevance to the assessment of the applicant’s application for review and does not consider them further.

    Valid notice

22. 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.

23. 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?

24. 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) of the Act, by virtue of the provision of incorrect answers about the applicant’s husband in her Student visa application lodged on 16 April 2019, in the following respects:

    a.Under ‘Other names/spellings’, the applicant answered ‘No’ to whether her husband currently has, or has ever been known by any other names;

    b.Under ‘Other passports’, the applicant answered ‘No’ to whether her husband has other current passports;

    c.Under ‘Visa history’, the applicant answered ‘No’ to whether the applicant or any person include in the visa application ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled.

25. The delegate considered the applicant did not comply with s.101(b) of the Act for the following reasons:

    a.As to whether the applicant’s husband has ever been known by any other names, the delegate found that the applicant’s response of ‘No’ was incorrect because he had been known by another name, being Neeraj Pal. The delegate’s decision refers to the findings of a Forsensic Facial Image Examiner, who was of the opinion that the persons depicted in the photographs provided to the Department in respect of visa applications by Neeraj Pal and Jigar Keshwar were the same person. The applicant’s husband subsequently confirmed that this was the case and advised the Department that his actual name is Neeraj Pal, and that he was born on 27 January 1992. The delegate found that based on this information, the applicant’s answer to the question whether her husband had been known by any other name, was incorrect;

    b.The delegate found the applicant’s answer of ‘No’ to the question whether her husband had any other current passports was incorrect on the basis that under his other name, Neeraj Pal, he held another Indian passport, being passport [number], issued on 19 November 2010 and valid to 18 November 2020; and

    c.The delegate found that the applicant’s answer of ‘No’ to the question whether the applicant, or any person included in the application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled, was incorrect on the basis that Neeraj Pal was refused a Student visa on 8 October 2014.

26. The delegate’s decision notes that the Student visa application lodged by Jigar Kashwer on 16 April 2019, with the applicant as a secondary applicant, was a combined application. The Procedures Advice Manual (PAM3) ‘GenGuideA – All visas – Visa applications procedures’ clarifies that for most visa classes, Regulation Schedule 1 states that applications may be combined if two or more applicants claim to be members of the same family unit. The delegate also noted the clarification provided by PAM3 of the effect of a combined application:

    Effect of a combined application

    It is irrelevant that, in a combined application, only one application form has been completed and lodged. Each person who combines their application with another person:

    ·is an applicant in their own right

    ·in law, has made their own application, and

    ·must be considered against primary criteria and secondary criteria.

27. The delegate’s decision notes that in these circumstances, s.98 of the Act clarifies that a non-citizen who does not fill in their application form is taken to do so if they cause it to be filled or if it is otherwise filled in on their behalf. Section 100 of the Act also clarifies that 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. The delegate also considered that the combined visa application lodged by Jigar Kashwer and the applicant on 16 April 2019, included a declaration as to the completeness and correctness of the answers provided in it.

28. The delegate found that the applicant was aware that her husband had been known by another name when the combined visa application was lodged on 16 April 2019. The applicant responded to the NOICC. She advised the Department that she was in India at the time, and her husband completed and submitted the visa application, and that she simply provided her own documentation to her husband. The delegate however noted sections 98 and 100 of the Act and found that the grounds for cancellation exist because the applicant provided the following incorrect answers in her Student visa application:

    Under Other names / spellings

    Is this applicant currently, or have they ever been known by any other names?

    No

29. As part of her response to the NOICC, the applicant’s representative provided a submission to the Department, dated 6 December 2021, which stated that the applicant acknowledges an ‘unknown non-compliance’ with s.101(b) of the Act in relation to her combined visa application, and that this non-compliance was outside her control as she was acting with the understanding that her husband had legally changed his name to Jigar Kashwer.

30. At the hearing, when questioned whether she was disputing whether non-compliance with s.101(b) of the Act had occurred, the applicant stated that she knew her husband by the name of ‘Jigar’. She then stated that she didn’t know whether incorrect information had been provided because the visa application made in April 2019 was made by her husband, and she was in India at the time. The applicant agreed however that there was non-compliance. I understand the applicant’s responses at the hearing to be consistent with the claims made in her written submissions, namely that the applicant claims that she was unaware of the non-compliance until the issues were uncovered by the Department and then brought to her attention, and that while she acknowledges there was unknown non-compliance with s.101(b) of the Act, this non-compliance was beyond her control as she was under the understanding that her husband had legally changed his name.

31. Having considered the evidence, I find that there has been non-compliance with s.101(b) of the Act. I find that an incorrect answer of ‘No’ was given in the applicant’s visa application of 16 April 2019 to the following question in relation to the applicant’s husband: ‘Is this applicant currently, or have they ever been known by any other names?’

32. I have considered the effect of s.98 of the Act, which states that 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 their behalf. While the applicant claims that she was in India and that her husband was solely responsible for completing and lodging the visa application made on 16 April 2019, I find that the applicant caused the visa application to be filled in or it was otherwise filled in on her behalf.

33. I have also considered the effect of s.100 of the Act, which states that for the purposes of the 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.’ I find that while the applicant claims that she was unaware that an incorrect answer had been given on her behalf in the visa application made on 16 April 2019, the effect of s.100 of the Act is that the answer is still deemed to be incorrect.

34. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

35. 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).

36. 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.

37. 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 Procedural 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. I now consider each of these factors in turn.

    The correct information

1. The Tribunal put to the applicant that the correct information which should have appeared in the visa application of April 2019 is substantially different from that which was actually provided. The applicant agreed with this concern, but stated that when the visa application was made, she did not know what was going on and did not know that her husband had made a visa application in 2014 which had been refused. She stated that she married her husband in 2018, which was after the visa refusal in 2014. She stated that while incorrect information had been given with the April 2019 visa application, this was her husband’s Student visa application and it had nothing to do with her. She stated that because of this incorrect information provided by her husband, her life is ruined, and it is not fair.

2. Given the substantial variance between the correct information and the information the applicants actually provided the Department, the Tribunal gives this consideration weight in favour of cancelling the visa.

   The content of the genuine document (if any)

3. The visa cancellation is not being considered on the grounds of provision of a bogus document. Therefore, the Tribunal does not give this consideration any weight either in favour or against the visa cancellation.

   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

4. The Tribunal put to the applicant that the delegate who assessed her Student visa application made on 16 April 2019 did so on the basis that the applicant had declared that her husband was not known currently, or ever known, by any other names. The Tribunal put to the applicant that had the delegate known the correct information, the visa may not have been granted.

5. The applicant responded that just as the delegate was unaware of the incorrect information, so too was she. The applicant stated that she has no fault in this situation.

6. I have considered the applicant’s response, but find that the decision to grant the visa, made on 24 July 2019, was based, either wholly or partly, on incorrect information. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

   The circumstances in which the non-compliance occurred

7. The applicant gave evidence that her marriage to her husband was an arranged one, and that her family and her husband’s family met at the marriage of third parties at the start of 2017. She stated that when she first met her future husband, he was introduced to her as Neeraj Pal. She stated that they said hello and then they ‘all left.’ The applicant stated that she was studying in India at the time and had no contact with her future husband. He was living in India at the time, but went to Australia in 2017.

8. The applicant stated that her parents decided to arrange the marriage in 2018. At the time, her future husband told the applicant’s parents and ‘everyone’ that he had changed his name. She stated that her parents are not that educated and are not aware of everything that is involved in changing a name, so they thought everything was ok. She stated that in her culture you cannot object to your parents’ decisions. She stated that she was studying and wanted to be something, but had to do what her parents said. She stated even after a fortnight of being married, and while they were still in India, her husband was reluctant to show her any documents.

9. The Tribunal put to the applicant that in her statutory declaration she states that in September 2018, her husband came to India and told her that he had legally changed his name. The Tribunal questioned the applicant as to what reasons her husband had given to her for his name change, and whether she suspected anything as a result of the information about his name change. The applicant responded that her husband was only in India for 10 to 15 days, and that people do change their name in India. She stated that she did not take the name change very seriously or try to find out the reasons for such a change. After her husband returned to Australia, the applicant stayed with her in-laws. She stated that they are also uneducated and did not think about things such as why the applicant had changed his name. She stated that she could not find any documents relating to the name change. She stated that her parents told her that now she was married to her husband, she had to obey him and spend all of her life with him. She stated that in her culture a wife will follow her husband with whatever he does or says.

10. The applicant then stated that the first time her husband changed his name, she lost faith in him. She stated that she didn’t know whether what he was saying was true. When asked when this was, the applicant stated it was when she received ‘the cancellation letter’ in November 2021 (which the Tribunal understands to be the NOICC, sent by the Department on 23 November 2022). The applicant stated that at this point her husband told her that he had not changed his name legally. She stated that after that they started having arguments [details deleted]. She stated that her husband committed a big fraud against her, and all of her plans are ruined. She started to live separately from her husband for one month, but received social pressure from her family to reunite with him, as she is his wife. She stated that her husband just brought some papers to her and said ‘sign this’ and that now her life has been destroyed.

11. The Tribunal put to the applicant that her husband claims (as set out in his statement and in the submission provided to the Tribunal) that the true reason why he changed his name was because it would put his family in jeopardy due to the influence of organised crime figures involved in his name change. The Tribunal put to the applicant that her husband has also claimed that he only found out about the change in name when he was at the airport and about to depart for Australia. He claims that prior to his departure he was handed a visa and passport with his new identity. The Tribunal put to the applicant that these two explanations appear to be inconsistent and questioned whether she could provide any explanation.

12. The applicant responded that her husband’s life and her life are different. She stated that the onus is on him for anything which he did, and that she had nothing to do with it. She stated that her trust in him is broken. She stated that she agrees the wrong information was provided by her husband, but she was in India at the time, and she played no role in making the application. She stated that she wishes to be an honest person in Australia and follow the rules.

13. I note that the applicant has provided evidence of her marriage, including a marriage certificate to ‘JIGAR KASHWER’. The applicant claims that when she first met the applicant in 2017, he was introduced to her as Neeraj Pal, and that when her parents arranged her marriage, Neeraj told her that he had changed his name to Jigar Kashwer, but no-one thought much about this. I note that the Certificate of Marriage provided by the applicant lists the bridegroom’s parents’ names as ‘Bhasha Kashwer’ and ‘Nirmala Kashwer’, and that the date of registration is 6 November 2018. I note also that the marriage invitation provided by the applicant also records the applicant’s husband’s parents as ‘Nirmala Kashwer’ and ‘Bhasha Kashwer’. This raises significant concerns about the applicant’s evidence regarding her husband’s disclosure of his name change. It raises questions as to why, if the applicant was known as ‘Neeraj Pal’ when the applicant and her parents first met him and his parents in early 2017, not only his surname, but also that of both his parents were changed to ‘Kashwer’ for the purpose of wedding invitations and the marriage certificate. This does not suggest that the applicant’s husband had merely told her that he changed his name to Jigar Kashwer, nor that (as she claimed in her oral evidence) her parents and parents-in-law never thought about these things or why her husband may have changed his name. I do not accept the applicant’s evidence in this regard and find that her parents-in-law were complicit in the name change of her husband, given their names are also recorded as Kashwer in both the wedding invitations and the marriage registration certificate. This also raises concerns about the truthfulness of the applicant’s claims regarding whether she and her parents were aware of the reasons for her husband’s name change at the time of her marriage.

14. The Department file contains a copy of an affidavit from the applicant’s parents, dated 9 July 2019, in which they depose that they were in charge of organising the wedding and paying all of the wedding expenses, which would indicate their involvement in the planning for the wedding, including the wedding invitations, which list both of the applicant’s husband’s parents as having Kashwer as their surnames.

15. I have also considered the statutory declaration from the applicant’s husband, in which he deposes that he met the applicant under the name of Neeraj Pal in June 2017 and that he entered Australia under the name of Jigar Kashwer in July 2017 due to circumstances beyond his control. I note that he claims that he told his family in 2018 that he legally changed his name to Jigar Kashwer due to potential backlash from organised crime figures. I also note that he states that he went to India in September 2018 and told the applicant that he had legally changed his name and that both his family and the applicant and her family, did not know the true reason for his change of name, and that he led them all to believe that it was done legally. I find that Mr Kashwer’s claims about his parents not knowing the true reasons for his name change is inconsistent with the information contained in the wedding invitation and marriage certificate, and does not explain why his parents would also have had their names changed to Kashwer. I find his statement regarding organised crime figures to be vague and unconvincing. In light of the visa refusal which the applicant’s husband received in 2014 under the name of Neeraj Pal, I have concerns that he attempted to enter Australia using a false identity in 2017, and did not adopt the name of Jigar Kashwer for the reasons claimed. Given these concerns, I have serious doubts regarding the credibility of any statements made by Mr Kashwer, and give little weight to his claim that he did not tell the applicant and her family the true reason for his name change or that he led them to believe that it was done legally.

16. While I have considered the applicant’s claims regarding the circumstances in which she came to know about her husband’s second name and identity as ‘Jigar Kashwer’, I find that the certificate or marriage and the wedding invitation cast serious doubt on the veracity of her evidence. I find that it is clear that the applicant’s parents-in-law were complicit with her husband marrying under the name of ‘Jigar Kashwer’, given they too adopted the surname Kashwer for the purpose of the wedding in 2018. I am also not satisfied that the applicant and her parents were unaware of the true circumstances surrounding her husband’s use of the name ‘Jigar Kashwer’ in documentation associated with their wedding. I consider it unlikely that the applicant or her parents would agree to such a wedding, where not only the groom, but also his parents, are documented with alternate surnames. I find that even before the wedding, the wedding invitation would have cast serious doubts for the applicant and her parents. I have considered the applicant’s claims regarding cultural pressure in Indian cultures to obey a husband, but find it more likely that the applicant and her family were aware that she needed to marry her husband under the name of ‘Jigar Kashwer’ because this was the name and identity he had used to enter Australia in 2017 with a Student visa, and would therefore be the name the applicant would need to use in future visa applications to Australia. I do not accept the applicant’s claim that she was unaware of the non-compliance until it was pointed out to her by the Department in the NOICC. I therefore give this consideration significant weight in favour of cancelling the visa.

    The present circumstances of the visa holder

17. The applicant was married in India on 18 October 2018. She first arrived in Australia on 4 September 2019. The applicant gave evidence that she started studying a Diploma of Business in 2020, which she studied for 7 to 8 months until November 2020, but did not complete. When asked at what college she studied that course, she stated that she could not remember. She stated that she commenced a Bachelor of Nursing at Western Sydney University in January 2021, which she is due to complete in November 2022. The applicant gave evidence that she completed a Master of Physics in India, but has never worked in India. She stated that she did not make her own decisions in India because she had to listen to her parents, and then to her husband, but now she wants to be independent and do her own things. She stated that if she ‘gets’ her visa, she will never breach any laws in Australia. When asked about her future plans, she stated that she wants to serve people ‘here’, then stated that she loves her job, wants to serve people, and that she loves working in this area.

18. The applicant stated that she has only two semesters left to complete her course, which if she completes, she can be independent and have a future. She stated that is she separates from her husband her life will be hard and no-one will accept her. [Details deleted]. She stated this is because the situation of women in society in India is very low and they are not accepted. She claimed that she is [being pressured by] her [parents].

19. The applicant requested that she be given a few months to complete her course so that she will have a tool to obtain a ‘proper job’ and something to allow her to stand on her own feet in the future. She claimed that if she separates from her husband, her family will not accept her. She stated that even though her trust in her husband has been broken, she is sticking with him as she is under a lot of pressure to do so from her parents. She confirmed that she is still living with her husband, but their relations are not good. She stated that once she completes her course, she plans to move away from him, to get a job and to break contact. She confirmed that her husband’s dependant Student visa has also been cancelled.

20. The applicant gave evidence that she currently has casual work in after school childcare.

21. The Tribunal questioned the applicant about any treatment she is receiving [details deleted] and noted that she provided the Tribunal with a copy of [her treatment] plan dated 3 December 2021. The applicant stated that she is not receiving treatment at the moment because she does not have money to pay for it. She stated that she received some treatment for a while in January 2022. The Tribunal questioned whether the applicant has overseas student health cover and whether she could access treatment through this. The applicant responded that her health insurance does not pay for the kind of treatment that she uses, such as ayurvedic treatment. The Tribunal questioned whether the [treatment] plan was prepared in December 2021 using a western medical practitioner or an ayurvedic practitioner. The applicant stated that she saw a GP, who referred her to a [specialist] and gave her some medication. When questioned if she had seen any of the practitioners whom she had been referred to under this plan, the applicant responded no, and stated that she couldn’t do so as she did not have the money.

22. I note that the treatment plan provided by the applicant lists [specified symptoms]. I note that the plan recommends treatment by a [specialist] for each of these problems or conditions and recommends a review in 3 months. The applicant has also provided a letter from her GP, Dr Islam, dated 2 December 2021, which indicates the applicant’s medical history includes [specified symptoms], both diagnosed on 26 February 2021, as well as [other symptoms] diagnosed on 2 December 2021. The applicant’s current medications are listed as [named medications], which relate to the conditions diagnosed in February 2021. She has also been prescribed [another medication]. The applicant has also been prescribed [other medications].

23. [Details deleted].

24. I note that the applicant’s visa was due to end on 10 September 2022, although the applicant claims that her current study will conclude in November 2022. The applicant has not provided evidence of her current studies, but I am prepared to accept that she will complete her studies in November 2022. I note that the applicant now has just over one month before her intended studies in the Bachelor of Nursing end. I take this into account, but also note that if the Student visa is cancelled, the applicant is able to apply for a Bridging visa which will allow her to finalise her affairs in Australia before departing. This would also give her the opportunity to complete her enrolment in the Bachelor of Nursing in November 2022 prior to departing Australia. I consider that the applicant already has a higher educational qualification from India, namely the Master of Physics, however I note the practical nature of the Bachelor of Nursing and consider that obtaining such a qualification may assist the applicant with employment opportunities in nursing, a field which the applicant has stated she is passionate about. I have also considered the applicant’s employment in after school childcare, which I consider to be work which may be of value to the wider Australian community. I have also considered the applicant’s claims regarding her relationship with her husband and her desire to live independently, but also note that her husband’s dependant Student visa has also been cancelled, so the cancellation of the applicant’s visa is unlikely to affect their ability to continue their relationship should they decide to reconcile their differences. I have also considered her [other claims], despite the applicant not providing further details. Having considered the evidence as a whole, including each of the above concerns, the Tribunal gives this consideration weight against cancelling the visa.

    The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Pt 2, Div 3 of the Act

25. The Tribunal notes the applicant responded to the NOICC issued by the Department and takes this into account in assessing her subsequent behaviour. The Tribunal put to the applicant the concern raised by the delegate that, she may have continued to provide incorrect information to the Department by claiming in her response to the NOICC that she was unaware that her husband’s name was not legally changed. The applicant responded to this concern by stating that she was 21 at the time and she was not aware of the rules and regulations in Australia. In response, the applicant stated that she knew her husband only as Jigar. The Tribunal sought to clarify whether the applicant’s evidence was that she only knew her husband as Jigar, to which she stated yes. I note however that at the start of her oral evidence, the applicant clearly stated that when she first met her husband, she was introduced to him as Neeraj Pal. I note also that in her statutory declaration dated 1 December 2021, the applicant also states that she met her husband under the name Neeraj Pal in June 2017, and they kept in contact as friends until their families decided in March 2018 that they should marry. I find the applicant’s evidence in this regard to be inconsistent, and do not accept her response to the concern raised with her.

26. The Tribunal put to the applicant a further concern raised in the delegate’s decision, namely that both she and her husband (in his statutory declaration) advised the Department that they were living separately, however both then advised the Department that they were actually living at the same address. The delegate noted that in October and November 2021, the applicant and her husband separately responded to Departmental requests to provide their current contact details, and both declared they were living at the same address, with neither advising of a subsequent address change. The applicant responded that when she sent this information to the Department, her husband was not living with her, and they were having lots of arguments. She stated that she has no idea what address her husband provided to the Department. Having heard the applicant’s evidence of her relationship difficulties, I am prepared to accept that the applicant and her husband may have lived separately at times, and don’t find that the applicant intended to intentionally deceive the Department as to whether she was living separately from her husband. I accept also that the applicant is experiencing cultural pressure to remain with her husband.

1. However, given my concerns regarding the applicant’s claims to the Department regarding when she became aware that her husband is actually named Neeraj Pal, as well as the inconsistent evidence which I have highlighted above, I give this consideration significant weight in favour of cancelling the visa.

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

2. The Tribunal put to the applicant a concern that she may have provided incorrect information to the Department in the Student visa application she lodged in December 2019, when she again answered ‘No’ to the question about whether her husband is currently known, or has ever been known, by any other names. The applicant responded that most of the documents for this visa application were filled out by her husband. The Tribunal put to the applicant that the December 2019 application was her application as the primary visa holder. The applicant responded that she hasn’t seen any application forms and that her husband filled out all of the applications. The Tribunal questioned the applicant further, by asking who filled out the forms for her application to study the Diploma of Business. The applicant responded that her husband used to go to an agent, and that he and the agent filled it out together. She stated that she had no involvement in filling out the form or talking to the agent. She stated that she had no other comments in relation to this concern.

3. I give little weight to the applicant’s claims that she did not fill out the Student visa application form lodged in December 2019 and that she never talked to the agent. As noted above, the effect of s.98 of the Act is that a non-citizen who does not fill in their application form is taken to have done so if they cause it to be filled in, or if it is otherwise filled in on their behalf. The effect of s.100 of the Act is that an incorrect answer is deemed to be incorrect, even if the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. I also find the applicant’s claims that she did not speak to the agent or have anything to do with the documents for her December 2019 application as a primary visa holder, to be of great concern. These claims raise serious questions about the applicant’s intentions in lodging such an application and the accuracy of the information provided in support of the application, which required the delegate to be satisfied that the applicant is a genuine temporary entrant for the purpose of study in Australia. This would have required the applicant to provide information about her immigration history, her circumstances in her home country, her potential circumstances in Australia and the value of the proposed course of study to her future. I do not see how such information could be accurately conveyed to an agent without the applicant herself taking an active role in providing the information and speaking directly to the agent. I note also that the applicant could not remember the name of the college where she studied Business, as well as her decision to change her enrolment shortly after commencing this course, which raise further concerns about the applicant’s involvement in the December 2019 Student visa application.

4. I have considered the applicant’s claims that she was not aware of any other instances of non-compliance because she did not fill out her December 2019 visa application form or speak to an agent about it, however because of the statutory framework, I find that she otherwise caused incorrect information to be provided to the Department. I give this consideration significant weight in favour of cancelling the visa.

   The time that has elapsed since the non-compliance

5. The Tribunal put to the applicant that the non-compliance being considered occurred in April 2019, which is relatively recent. The applicant responded that she was not involved in the non-compliance.

6. For the reasons set out above, I am not satisfied of the applicant’s claim that she was not involved in the non-compliance and therefore do not consider her argument in this regard to be compelling. I consider that the first non-compliance occurred on 16 April 2019, when the applicant lodged a combined Student visa application with her husband, and that non-compliance continued when the applicant lodged her Student visa application in December 2019 as a primary applicant for the Student visa. I consider that a relatively short period of time has elapsed since the non-compliance. I give this consideration some weight in favour of cancelling the visa.

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

7. There is no evidence before the Tribunal to indicate that the applicant has breached any laws since the non-compliance occurred. I give this consideration some weight against cancelling the visa.

   Any contribution made by the visa holder to the community

8. At the hearing, the applicant stated that she works in the childcare sector and through her placements as part of her Bachelor of Nursing she has been involved at a hospital. The applicant also stated that she does volunteer work at a temple. I accept the applicant’s evidence in this regard. I note the submission from the applicant’s agent indicates that nursing is a critical sector industry.

9. I also note the submission from the applicant’s agent, which indicates that the applicant’s employer would be disadvantaged by the decision because her employer is acting under the basis that the applicant’s visa will end on 10 September 2022. I give little weight to this argument, given the date for the expiration of the applicant’s visa has now passed. However overall, considering the applicant’s work in the childcare sector and her training as a nurse, I give this consideration weight against cancelling the visa.

   Whether there are persons in Australia whose visa would, or may, be cancelled consequentially under s.140

10. The applicant confirmed that she has no children or dependants. I note that the applicant’s husband, who was a dependant to her Student visa, has already had his visa cancelled separately. I find that there would be no consequential cancellations arising if the applicant’s visa is cancelled. I give this consideration no weight either in favour 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

11. There is no evidence before the Tribunal to suggest that Australia would be in breach of any of its international obligations if the applicant’s visa was cancelled. As noted above, the applicant has no children whose interests need to be considered.

12. The applicant is a citizen of India and I find that if the visa is cancelled, it is open to her to return to India. She claims that if she leaves her husband, no-one in India will accept her [details deleted]. She claims that the situation of women in India is very low and that they are not accepted, however she made these comments in the context of a request to the Tribunal to not cancel the visa so she can complete her current course of study, which will allow her to, in her own words, stand on her own feet. On her own evidence, the applicant will complete the Bachelor of Nursing in November 2022, meaning she now has approximately only one month left of her enrolment. If the visa is cancelled, the applicant has an option to apply for a Bridging visa to settle her affairs in Australia, which will allow her an opportunity to complete her current course.

13. I note that the applicant already has a Master of Physics, which she completed in India, and therefore consider that she already has a qualification which would potentially allow her to work and live independently in India. The applicant also now has experience working in the childcare sector in Australia, which could further assist her to obtain work in India and to live independently.

14. I consider that the applicant’s claims regarding any harm she may experience upon return to India can be addressed within the context of a protection visa application, and that a process for such applications exists, should the applicant wish to have those claims considered further. I therefore give this consideration no weight either in favour or against cancelling the visa.

    Whether there are mandatory legal consequences to a cancellation decision

15. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s.189 of the Act and be liable to be removed from Australia pursuant to s.198 of the Act. However, the Tribunal notes that the applicant could apply for a Bridging visa in order to settle her affairs in Australia. This would also enable her to complete her enrolment in the Bachelor of Nursing, which on the applicant’s evidence, will end in November 2022. The applicant would need to seek advice regarding her immigration status. The Tribunal is mindful that a visa cancellation could mean the applicant might face difficulties in being granted further visas in Australia, and that she could also be subject to a three-year exclusion period unless she meets relevant Public Interest Criterion.

16. The applicant implied in her evidence that she wished to work in nursing in Australia and to serve the Australian community. I note that the cancellation of the applicant’s visa is likely to affect her ability to do so and limit the range of temporary visas to Australia which she can apply for. I give this some weight against cancelling the visa.

    Any other relevant matters

17. When asked if there are any other relevant matters, the applicant stated that the mistake has been made and she now understands things better and will never do such things again. She asked that the Tribunal give her one last chance.

18. I consider that the applicant has shown a level of remorse regarding the events which have led to the visa cancellation and has indicated an intention to abide by the conditions of her visa.

19. I have also considered the degree of hardship to the applicant and her family if the visa is cancelled. I have considered the submissions from the applicant’s representative. I consider that the applicant would experience some hardship, which could include giving up her employment in Australia and the hardship of relocating back to India. I also accept that the visa cancellation may cause financial, emotional, psychological and other hardship for the applicant. I consider that the applicant’s husband’s visa has already been cancelled, and therefore the cancellation of the applicant’s visa would not force her to be separate from her husband if she chooses to remain with him. I give this some weight against cancelling the visa.

    Weighing the considerations as a whole

20. I note that in considering each of the above considerations, I have given some weight or a little weight to some considerations against cancelling the visa, and given weight in regards to the applicant’s present circumstances. I note however that I have given a significant level of weight in favour of cancelling the visa in respect of a number of the considerations, in particular the circumstances in which the non-compliance occurred, and overall assess that the considerations weight heavily in favour of cancelling the visa.

21. 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

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

    Frank Russo
    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.

    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.