Ullah (Migration)

[2020] AATA 2469

Ullah (Migration) [2020] AATA 2469 (18 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Haseeb Ullah

CASE NUMBER:  1931030

DIBP REFERENCE(S):  BCC2018/4057030

MEMBER:  Michael Ison

DATE:  18 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision to cancel the

applicant’s Subclass 500 (Student) visa.

Statement made on 18 May 2020 at 4:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in visa application – claimed to have completed university degree – bogus documents – certificate of completion from university in home country and certificate of enrolment at Australian university – claim that agent prepared application and submitted without knowledge or consent – enrolments in masters and lower-level course in different subject area cancelled – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 103, 107, 109
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, Condition 8202

CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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

   Background

2. The applicant is Mr Haseeb Ullah, a 22 year old Pakistani national. The applicant arrived in Australia on 12 June 2018 as the holder of a Student visa that was valid to 30 August 2020. The applicant was enrolled to study a Master of Applied Economics at Australian National University. That enrolment was subsequently cancelled for non-commencement of studies in July 2018 and the applicant subsequently enrolled in a Certificate III in Light Vehicle Mechanical Technology which was also subsequently cancelled in July 2019 for non­payment of course fees.

3. On 25 October 2019 the applicant’s Subclass 500 visa was cancelled under s.109 of the Act. At the time of the cancellation of his Student visa the applicant was enrolled in Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. The applicant currently holds a Bridging E (Subclass 050) visa.

4. On 31 October 2019 the applicant lodged a review application for his Subclass 500 visa cancellation with the Tribunal.

   The primary decision

5. The applicant provided the Tribunal with a copy of the primary decision.

6. The delegate cancelled the applicant’s visa on the basis that the applicant claimed in his application for the visa that he had completed a Bachelor of Science in Economics (Honours) when he had not. The delegate found the applicant had breached s.101(b) of the Act because the applicant provided incorrect answers on his visa application and also provided a bogus document, being a Certificate of Enrolment, in breach of s.103 of the Act in support of the application.

7. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the applicant’s visa should be cancelled.

8. The applicant appeared before the Tribunal on 23 March 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant was represented in relation to the review by his registered migration agent, who did not participate in the Tribunal hearing.

Case Number 1931030  Page 2 of 15

1. The Tribunal received a three page written submission from the applicant’s representative, with each page signed by the applicant, on 18 March 2020 and also received a response to the Tribunal’s hearing invitation on 20 March 2020.

2. At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s decision. The Tribunal informed the applicant that it would allow the applicant an opportunity to address the Tribunal toward the end of the hearing on any matter he felt was relevant to his review.

3. The Tribunal has considered all of the information before it, including the evidence of the applicant, the written submission from the applicant and the information on the Tribunal file and the Tribunal’s copy of the Department’s file.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

8. 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.

9. The Tribunal explained to the applicant that s.101 of the Act requires visa applicants to ensure no incorrect answers are given or provided in their visa application form, s.99 provides that any information given in relation to a visa application is considered to be an answer to a question in the visa applicant’s application form, s.103 provides that a visa holder must not provide a bogus document or cause such a document to be provided to the Minister or others and s.5 defines bogus document as a document the Minister reasonably suspects:

   a)purports to have been, but was not, issued in respect of the person;

   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.

Case Number 1931030  Page 3 of 15

1. The non-compliances identified and particularised in the s.107 notice were non-compliances with ss.101(b) and 103 of the Act the following manner:

   ·Section 101(b) incorrect answer: the applicant stated at page 9 of his Student visa application that the course name of the highest level of schooling he had completed outside Australia was a Bachelor of Science in Economics (Honours) from Government College University in Lahore, Pakistan.

   ·Section 101(b) incorrect answer: the applicant stated at page 9 of his Student visa application under Employment details that he had completed a Bachelor of Science in Economics in November 2017.

   ·Section 101(b) incorrect answer: the applicant declared at page 14 of his Student visa application that he had provided complete and correct information in every detail in that Student visa application form.

   ·Section 101(b) incorrect answer: the applicant’s statement in his Statement of Purpose supporting his Student visa application that he had enrolled in Government College University Lahore for the Bachelor of Science in Economics (Honours) in 2013 and completed that degree in November 2017.

   ·Section 103 provided a bogus document: the applicant provided to the Department in support of his visa application a Certificate of Enrolment for a Master of Applied Economics at Australian National University. The applicant obtained this Certificate of Enrolment due to the false or misleading statement and documents provided to Australian National University that he had completed a relevant Bachelor degree in Pakistan.

2. The applicant gave evidence that after he finished his intermediate schooling, the equivalent to Year 12 in Pakistan, he sought to obtain a Student visa to enable him to travel to and study in Australia, but was refused because of his poor English. The applicant told the Tribunal a friend of his uncle’s introduced them to an agent who told the applicant and his uncle that he could get the applicant a Student visa for Australia. The applicant’s evidence is he provided all documents requested by this agent to his uncle who passed them on to the agent who then prepared and submitted the applicant’s visa application.

3. The Tribunal read the following extract from the delegate’s decision to the applicant:

   ANU have advised the Department that on 15 May 2018 the visa holder applied with ANU to undertake a Master of Applied Economics on the basis of completing a Bachelor of Science in Economics (Hons.) at Government College University Lahore in 2017. As a part of his application the visa holder provided his B.Sc. (Hons.) in Economics course completion certificate (Serial Number 075484, Registered Number 213-GCU-BH-ECON-17) issued by Government College University Lahore; GC University Lahore transcript for his B.Sc. (Hons.) in Economics (2013 - 2017); and Government College University Lahore English proficiency certificate. After assessing the visa holder’s application, on 22 May 2018 ANU issued him CoE 9AE39412.

   ANU have conducted subsequent verification of the visa holder’s academic records and the above documents with Government College University Lahore, who have advised ANU that the above documents were not issued by them and are bogus.

4. The applicant agreed that the documents provided in support of his application for enrolment at Australian National University purportedly from Government College University Lahore were not original documents. The applicant explained that he had not completed a Bachelor of Science in Economics (Honours) in Pakistan and believes the agent who assisted with his visa application received but did not use his original documents, and replaced them with the wrong documents which the agent then submitted to the University to obtain the enrolment

Case Number 1931030  Page 4 of 15

which was then submitted to the Department without the applicant’s, or his uncle’s, knowledge or consent.

1. The Tribunal explained to the applicant that under the provisions of the Act it had referred to earlier the applicant is responsible for everything submitted in a visa application made on his behalf. The applicant told the Tribunal he comes from a small village in Pakistan where all decisions are made by his parents who sought the help of his uncle who then enlisted the help of the friend who referred them to the agent and neither he nor his uncle knew what the agent would submit to the University or Immigration and they are innocent of any wrongdoing.

2. On the evidence before the Tribunal the Tribunal finds that the applicant has not completed a Bachelor of Science in Economics (Honours) in Pakistan (or elsewhere). The Tribunal finds the documents provided to the Australian National University on behalf of the applicant to obtain a Certificate of Enrolment were bogus documents. This in turn causes the Tribunal to find that the Certificate of Enrolment provided to the Department in support of the applicant’s application for a Student visa was a bogus document as that term is defined in s.5 of the Act because the Certificate of Enrolment was obtained because of a false or misleading statement, even if the applicant did not knowingly make such a statement, being that the applicant held a relevant bachelor degree.

3. The Tribunal also finds that the four statements made in the applicant’s visa application and Statement of Purpose, as set out in paragraph 19 of these reasons, were incorrect statements which means that the applicant did not comply with s.101(b) of the Act as the Tribunal finds each statement is an incorrect answer in the applicant’s visa application form, as that is expansively defined in s.99 of the Act.

4. For these reasons, the Tribunal finds that there were non-compliances with ss.101 and 103 of the Act by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

5. As the Tribunal has decided that there were non-compliances 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).

6. 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 r.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

Case Number 1931030  Page 5 of 15

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

      any contribution made by the holder to the community.
Applicant’s response to the s.107 notice

1. The applicant responded to the Department’s s.107 notice on 18 October 2019 stating he was shocked and concerned at receiving the notice, noted any decision will affect his entire life and requested an extension of time to respond as he has retained the services of a registered migration agent who has requested access to the applicant’s file under the Freedom of Information Act 1982 (Cth). The Department responded on 21 October 2019 that the applicant’s response was overdue, there are no provisions under the Act to grant such an extension but that any information received before the delegate made a decision would be considered.

2. The applicant’s representative wrote to the Department on 22 October 2019 also requesting an extension of time to respond to the s.107 notice. The Department replied to the representative in similar terms to its earlier response to the applicant.

3. In this correspondence neither the applicant nor his representative set out a substantive response to the s.107 notice, including whether the applicant disagreed or agreed that there were grounds for considering the cancellation of his visa.

4. The applicant told the Tribunal that when he received his Certificate of Enrolment he realised there had been a fraud, so he told Australian National University which responded that it would not admit him to the Masters course but he could apply for another admission, which he did. The applicant asked the Tribunal to set aside the cancellation of his Student visa so he can complete his study in Australia and return to Pakistan with a qualification that will help him to make something of himself there.

5. As the applicant did not address the substantive issues raised in the s.107 notice in his (and his representative’s) responses to that notice, the Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

   The correct information

6. The correct information, according to the applicant, is that he did not undertake or complete a Bachelor of Science in Economics (Honours) in Pakistan.

7. The failure, on behalf of the applicant, to provide the correct information to the Department had a material bearing on the applicant being granted a Student visa.

8. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it considerable weight.

   The content of the genuine document (if any)

9. As the bogus document provided to the Department was a Certificate of Enrolment, there was no genuine document. The applicant told the Tribunal that prior to the current application he had sat an International English Language Testing System (IELTS) test twice and achieved only overall scores of 3.5 and 4.5.

10. The applicant’s evidence is he provided his last IELTS test result and completion of intermediate school certificate to the agent, but the agent did not include these documents in the applicant’s visa application.

Case Number 1931030  Page 6 of 15

1. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

   Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

2. The use of the bogus documents to support the applicant’s claim of having obtained a relevant bachelor degree in Pakistan led to the applicant being granted a Certificate of Enrolment in a Masters course by the Australian National University. In turn, this Certificate of Enrolment was critical to the applicant being granted a Student visa.

3. The Tribunal finds that the decision to grant the applicant a Student visa was based in part on the three incorrect statements in the applicant’s visa application and incorrect statement in his Statement of Purpose and the bogus Certificate of Enrolment provided to the Department.

4. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it considerable weight.

   The circumstances in which the non-compliance occurred

5. The applicant explained to the Tribunal that his father worked from childhood and is not an educated man and so relied on his brother, the applicant’s uncle, who is considerably younger and has a primary school education, to assist with obtaining a Student visa for the applicant.

6. The applicant’s evidence is that he was required to obey his father and uncle but they were deceived by the agent and did not do anything wrong and he does not think there is anything they could have done differently to prevent the agent doing what he did.

7. In the submission dated 18 March 2020, on behalf of the applicant, it stated:

   My name is Haseeb Ullah I came here in Australia on student visa subclass 500. This Visa application was prepared and submitted by one of the agent Ali Ibrar" who legally operates in Pakistan and have many successful cases of Australia student visas. They were referred by one of my uncle's friend. So, we also met them. I was struggling to get 6 each score in IELTS. Thus, this agent assured us that He will get me the visa with same score band (Overall 4.5). As per our country tradition elder people only take the decision. So, my uncle was taking all the decisions of my Visa. He hands over all the documents to the agent that includes my passport, education, resume, IELTS score card. After one month I was told that admission process is done, and fees have been paid to the college. I was asked to get my medical and fingerprints done, which I did as asked. After ten days I got my visa and the same guy booked my tickets. He emailed me my tickets and COE. When I checked my COE I found that the COE was in Master of Economics. I was shocked to see that I contacted my university about the issue and in turn they cancelled my COE.

   Now I was only aware that I am on student visa. I came here to study, I made bit of research on courses and found that there are good career options in Diploma in Automotive. So, I took admission in this course and started studying my education as normal.

   Suddenly one day I received a Notice of Cancellation of my Student Visa. After making some research I came to know how serious the matter was. (sic)

1. The Tribunal has carefully considered the applicant’s evidence and written submission. According to the applicant’s evidence he and his family have placed their trust in a person the applicant describes as an agent and are innocent of any wrongdoing, with the applicant only raising the fraud perpetrated by the agent when he was in Australia. The Tribunal has

Case Number 1931030  Page 7 of 15

not had the benefit of hearing evidence or being provided with a statement from the agent or anyone else involved in the applicant’s application for his Student visa.

1. The Tribunal did not find the applicant’s evidence in this regard to be convincing. The applicant’s evidence is, in effect, that he and his family gave complete authority to a person they barely knew to manage the applicant’s temporary migration to Australia to study and then exercised no oversight or checking of what that agent did on the applicant’s behalf. According to the applicant, the agent took it upon himself to go to the extra effort of procuring at least three fraudulent documents on behalf of the applicant in Pakistan to achieve the outcome the applicant sought – a Certificate of Enrolment from an Australian university to support an application for a Student visa.

2. It does not seem plausible to the Tribunal that an agent would enrol their client in a course of which the applicant had no knowledge, particularly where that course requires a substantial pre-payment of course fees, completely on the agent’s own initiative and without any discussion with or knowledge of the applicant (or his family).

3. The applicant’s evidence that he did not raise any issues about this alleged conduct of the agent until he arrived in Australia caused the Tribunal to have further doubts about the applicant’s evidence. The applicant told the Tribunal the agent provided him with his plane ticket and Certificate of Enrolment in Pakistan. On receiving his Certificate of Enrolment the applicant would have seen, quite apart from the shock he admitted to being enrolled at the Masters level, that the total tuition fee was AUD90,336 and that there had to be a pre­payment of AUD20,000 in course fees. It seems implausible to the Tribunal that upon receiving this information when still in Pakistan, if the agent acted without the applicant’s or his family’s knowledge in enrolling him in a Masters course as the applicant alleges, that he and his family would not have been shocked at the applicant being enrolled in a course costing over AUD90,000 and requiring an AUD20,000 up-front payment and would not at the very least have sought an explanation from the agent before the applicant departed for Australia.

4. While the Tribunal accepts the evidence of the applicant about the authority structures within the applicant’s family and community and the limited education of the applicant and his uncle, for the reasons noted above the Tribunal does not accept the applicant’s evidence that he and his family blindly trusted the agent and are innocent victims of the agent’s “deceitful” conduct.

5. Even if the applicant’s implausible explanation were true, it would be of only limited assistance to the applicant. The migration law places strict responsibility on visa applicants to provide correct information, not provide incorrect information and to not provide bogus documents for sound public policy reasons. It is incumbent on applicant’s to seek to understand and check what is being submitted on their behalf. To question whether such strict responsibilities are realistic or even reasonable, particularly in the applicant’s circumstances, is to disregard the public policy principles behind these provisions: these strict responsibilities are intended to underpin the integrity of Australia’s migration program by addressing precisely the issue that confronted the Tribunal. That is, it is commonly very difficult to objectively determine on the usually limited evidence available what a visa applicant did or did not know when they relied on a third party to assist with their visa application. These provisions address that issue by placing the responsibilities referred to above on the visa applicant, such that the Department, or in the present case the Tribunal, only has to show that incorrect information or a bogus document was provided as part of a visa application and are not required to prove who caused the incorrect information or bogus documents.

Case Number 1931030  Page 8 of 15

1. In the applicant’s case, the Tribunal is not satisfied, for the reasons above, that the applicant did not have any knowledge of what the agent submitted on his behalf in his application for a Student visa. If the Tribunal had accepted the applicant’s explanation, then that would not have affected the Tribunal’s finding that this consideration supports the cancellation of the applicant’s visa, but would have affected the weight the Tribunal gave this consideration.

2. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it considerable weight.

   The present circumstances of the visa holder

3. The applicant told the Tribunal that after his enrolment was cancelled by the Australian National University he enrolled in a Certificate III in Light Vehicle Mechanical Technology and completed a semester of study but only passed 1 or 2 of the units for the semester before receiving the letter informing him the Department was considering cancelling his visa.

4. The applicant told the Tribunal he worked as an Uber driver and most recently as an Uber Eats delivery driver but ceased working when his visa was cancelled.

5. The applicant’s evidence is he lives in a share house with three other international students including one of his brothers who is in Australia studying. The applicant told the Tribunal he is the eldest of four brothers and his brother studying in Australia is the second eldest with the younger two siblings studying in Pakistan.

6. The applicant told the Tribunal he does not have many friends in Australia and has a limited social life, sometimes going to the local mosque to pray, but with the emergence of the COVID-19 global pandemic now does not go anywhere.

7. The Tribunal read the applicant the following extract from the primary decision:

   PRISMS indicates the visa holder’s enrolment for a Certificate III in Light Vehicle Mechanical Technology at Central Australian Institute of Technology was cancelled on 25 July 2019 for non-payment of course fees and that his last day of study was 26 June 2019. The visa holder is enrolled in a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis at Barkly International College since 2 August 2019 which will commence on 15 November 2019 and 15 January 2021 respectively.

   I consider that if the visa holder’s Student visa is cancelled, it may cause the visa holder hardship as he will not be able to commence the above mentioned courses. The visa holder may also face hardship in making arrangements to depart Australia.

8. The Tribunal also noted that in the submission dated 18 March 2020 it states the applicant has not finished his studies in Australia in automotive, this is a crucial period in his life when he is seeking an education to help him find a job, he is worried about going back to Pakistan to face society without qualifications and he is emotionally unstable.

9. The Tribunal asked the applicant to comment on the delegate’s findings and explain the submissions the Tribunal referred to.

10. The applicant told the Tribunal it was a shock to have his visa cancelled, he has not faced anything like this before and being without a visa had caused him a great deal of worry. The applicant’s evidence is he is worried about the long term impact for his career and health if he has to return to Pakistan without a qualification, but otherwise he is physically perfect. The applicant told the Tribunal his father is a farmer in Pakistan with only a very small land holding and he will be forced to help his father on the land because he does not have another career other than working in a factory and his father does not want him to work on

Case Number 1931030  Page 9 of 15

the land. The applicant restated his desire to recommence his studies and, in very broad terms, to become a car mechanic or “something like that” in automotive.

1. The applicant expressed the wish to be able to resume his studies and to resume working so he can pay his course fees in part because his father has told him that if the applicant is in Australia he should be studying. The applicant claims to be a genuine and good student and said he does not want to return to Pakistan without a qualification as people will say he lived in Australia for two years but did not complete any study.

2. The Tribunal accepts the applicant’s evidence in relation to this consideration, except for the applicant’s recollection of his study history, which was not consistent with what the delegate found. The Tribunal prefers the delegate’s finding in this regard, as those findings are based in part on information from Departmental databases, but this evidence was not a significant factor in this consideration for the Tribunal.

3. The evidence before the Tribunal in relation to the potential psychological and financial hardship cancellation of the applicant’s visa would cause the applicant is very limited. However, the Tribunal finds that if the applicant’s visa is cancelled he will suffer considerable emotional hardship and potentially psychological and financial hardship from not achieving the purpose of his travel to Australia. The Tribunal also finds that the applicant’s parents in Pakistan will also suffer considerable emotional hardship and some financial hardship, in the sense that the money spent on their son receiving an education in Australia will not have achieved its intended purpose, if the applicant’s visa is cancelled.

4. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it considerable weight.

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

5. The evidence before the Tribunal is that the applicant has fully co-operated with the Department and participated in the cancellation process. The applicant told the Tribunal that he simply wants his Student visa back so he can return to study and prove himself and return to Pakistan with a qualification that will enable him to make something of himself.

6. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

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

7. The Tribunal noted to the applicant that the delegate found that Australian National University cancelled his enrolment in the Masters course on 12 July 2018 for non-commencement of studies and that since 2 August 2019 the applicant was enrolled in courses at the Vocational Education and Training Sector level rather than at the Higher Education Sector level which was the purpose the applicant’s Student visa was granted for.

8. The Tribunal further noted to the applicant that the delegate found the applicant’s failure to maintain enrolment at the Higher Education Sector level is a breach of condition 8202(2)(b) of his Student visa. The Tribunal explained to the applicant that condition 8202(2)(b) requires Student visa holders to maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level or at a higher level than the registered course for which the visa was granted.

9. The Tribunal invited the applicant to comment upon or respond to these findings of the delegate. The applicant told the Tribunal that because he had not completed a bachelor

Case Number 1931030  Page 10 of 15

degree it would have been impossible for him to study at the Masters level, he just would not have understood the course. The applicant agreed he had been granted a Student visa to study at the higher education sector level but told the Tribunal that he is not able to study at that level.

1. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it some weight.

   The time that has elapsed since the non-compliance

2. The Tribunal noted to the applicant that the non-compliances occurred on 28 May 2018 and that this means it is only a relatively short period of time since the non-compliances occurred and invited the applicant to respond.

3. The applicant did not have any comment in relation to this information or consideration. The Tribunal finds that the non-compliances have occurred relatively recently, nearly two years ago at the time of this decision, and are not in the distant past.

4. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it modest weight.

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

5. There is no evidence before the Tribunal of the applicant having breached any laws since the non-compliances.

6. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

   Any contribution made by the holder to the community.

7. The applicant told the Tribunal he has mostly stayed at home since he cannot work or study but that he would like to undertake some community service work, but has not done so to date. The Tribunal accepts this evidence.

8. The Tribunal finds that the evidence before it is that the applicant has not made any contribution to the community. However, the Tribunal also recognises that the relatively recent emergence of the COVID-19 global pandemic has restricted the recent activities of most people in the community, including the applicant.

9. In the present circumstances of the COVID-19 global pandemic, the Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

   Departmental policy

10. While the prescribed 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 Instructions, formerly known as the Department’s Procedures Advice Manual or PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

Case Number 1931030  Page 11 of 15

Whether there would be consequential cancellations under s.140

1. The applicant told the Tribunal there is no-one dependent on his visa.

2. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

   Whether any international obligations would be breached as a result of the

   cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child

3. The applicant’s evidence is he is not married, does not have any children and does not claim Australia owes him any protection or other obligations.

4. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

5. The Tribunal explained to the applicant that if his visa is cancelled by the Tribunal he would become an unlawful noncitizen and be liable to be detained under s.189 of the Act and if he did not depart Australia voluntarily or was not granted another visa he would then be liable to be removed under s.198 of the Act.

6. The Tribunal also explained that s.48 of the Act would operate with the effect of limiting the types of visas, particularly temporary visas, the applicant could apply for while he remains in Australia if his visa is cancelled.

7. Finally, the Tribunal noted to the applicant that cancellation of his Student visa in his

   circumstances also has the consequence that Public Interest Criterion 4013 will apply to him such that he may not be able to meet the requirement for the grant of certain visas for a three-year period from the date of the cancellation of his Student visa unless limited exceptions, such as whether there are compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, apply.

8. The applicant responded to this information that cancellation of his visa will adversely affect his whole life because he doesn’t think he would ever be able to return to Australia to complete his studies and this would have a significant impact on him psychologically and in terms of his future career and therefore financially.

9. The Tribunal accepts this evidence.

10. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

11. The Tribunal has addressed the degree of hardship that cancellation of the applicant’s Student visa may cause to him and any family members when considering the applicant’s

Case Number 1931030  Page 12 of 15

present circumstances in paragraphs 54 to 65 of these reasons. For clarity, the Tribunal finds this consideration weighs against the cancellation of the applicant’s visa and has given it considerable weight.

1. In his closing remarks at the hearing, the applicant told the Tribunal that he had explained his circumstances to the Tribunal, explained what he will do if his visa is not cancelled and explained the very significant and far-reaching detrimental effects cancellation of his visa will have on him. The Tribunal has taken this evidence into account in these reasons.

   Conclusion

2. 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 considers that those considerations that weigh in support of the cancellation of the applicant’s visa outweigh those considerations that weigh against the cancellation of the applicant’s visa.

3. For these reasons, the Tribunal concludes that the applicant’s Student visa should be cancelled.

   DECISION

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

   Michael Ison
   Senior Member

Case Number 1931030  Page 13 of 15

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

97 Interpretation

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).

1. Completion 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.

2. Information 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.

100 Incorrect 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.

1. Visa 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.

2. Bogus documents not to be given etc.

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

3. Notice 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

* 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).

Case Number 1931030  Page 14 of 15

(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.

1. Decision 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.

2. Cancellation 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.

Case Number 1931030  Page 15 of 15