Vasquez (Migration)

Vasquez (Migration) [2021] AATA 3433 (5 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wilian Estela Vasquez
CASE NUMBER:  2018083
HOME AFFAIRS REFERENCE(S):          BCC2019/3083641
MEMBER:SM Justin Owen
DATE:5 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 05 July 2021 at 11:23am

CATCHWORDS
MIGRATION – Cancellation – Subclass 010 (Bridging A ) visa – non-compliance relates to previously held Business Visitor (Subclass 600) visa – provision of false information and bogus documentation – lodges a Partner visa application – partner to an Australian citizen – emotional hardship – breach of Condition 8115 – applicant may be able to apply for a Bridging visa ‘E’ – non-compliance of the applicant is significant – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 98, 100, 101, 103, 107, 109, 359A, 375A
Migration Regulations 1994, r 2.41
CASES
Dalla v MIBP [2016] FCA 998
Kaur v MIBP [2019] FCAFC 53
Gill v MIBP [2016] FCAFC 142
MIAC v Khadgi (2010) 190 FCR 248
Singh v MIBP [2018] FCAFC 52
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with ss. 101(b) and 103 of Subdivision C of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jaime Arrilucea, Ms [B] and Mr [C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and s.103 in the following respects
Particulars
On 18 November 2020 the Minister’s delegate invited the applicant to comment on the delegate’s intention to consider cancellation of his Bridging A (Subclass 010) visa, The applicant had been granted the visa on 12 April 2019.
A response on behalf of the applicant was received on 1 December 2020.
On 16 December 2020 the Minister’s delegate, having taken into account the applicant’s response, decided to exercise discretion under s.109 of the Act to cancel the applicant’s visa having decided that the applicant did not comply with s.101(b) and s.103 of the Act. In that decision, the Minister’s delegate concluded the reasons for not cancelling the applicant’s visa did not outweigh the non-compliance.
Section 101 of the Act states: “A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.”
Section 103 of the Act states: “A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a Tribunal performing a function or purpose under this Act, a bogus document, or cause such a document to be so given, presented or provided”.
The Tribunal notes that the claimed non-compliance relates to a visa that the applicant has previously held. Section 107A of the Act states that possible non-compliances in connection with a previously held visa may be grounds for the cancellation of a visa holder’s current visa. In this case, the applicant’s claimed non-compliance relates to his previously held Business Visitor (Subclass 600) visa. The applicant was granted a Business Visitor (Subclass 600) visa on 27 June 2017.
Claimed non-compliance
The particulars of the information from the delegate’s decision record of 16 December 2020 are that in association with the applicant’s application for a Business Visitor (Subclass 600) visa, on 17 June 2017 the applicant completed and submitted the `Application for a Visitor Short Stay Visa' form via the Department’s online system and provided other documentation that did not comply with s.101(b) and s.103 of the Act.
This application provided the following answers to questions (in part):
Purpose of Stay (Page 1)
Select the stream the applicant is applying for:
Business visit for meetings, conferences or negotiations (not for work)
List all reasons for visiting Australia
Business
Give details of any significant dates on which the applicant needs to be in Australia:
Necesito ir a Australia para asistir a una conferencia del 17 al 25 julio
Translation from Spanish to English reads: ‘I need to go to Australia to attend a conference from 17 to 25 July)
Current Overseas Employment (Page 6)
Current employment details
Employment status:               Employed
Occupation grouping:  Managers
Organisation:  GRUPO ARNI SAC
Start date with current employer:      4 February 2014
Organisation address
Note that a street address is required. A post office address cannot be accepted as an organisation address.
Country:  PERU
Address:  AV. ALAMEDA SUR DE VILLA
CALLE 01 MZ D LOTE 14
Suburb/Town:  CHORRILLOS
State or Province:  LIMA
Postal Code:  LIMA09
Funding for Stay (Page 7)
Funding details
Give details of how the stay in Australia will be funded.
Supported by other organisation
What funds will the applicant have available to support their stay in Australia?
LOS GASTOS DURANTE ME ESTADIA EN AUSTRALIA SERAN CUBIERTOS POR LA EMPRESA DONDE TRABAJO
Translation from Spanish to English reads: ‘The expenses during my stay in Australia will be covered by the company where I work”
Country:  PERU
Address:  AV. ALAMEDA SUR DE VILLA
CALLE 01 MZ D LOTE 14
Suburb/Town:   CHORRILLOS
State or Province:  LIMA
Postal Code:     LIMA09
Declaration (Page 10)
Warning:
Giving false or misleading information is a serious offence.
The applicants declare that they:
Have read and understood the information provided to them in the application.
Yes
Have provided complete and correct information in every detail on this form, and on any attachments to it.
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
Yes
The applicant acknowledged all these answers in his signature at the end of the application. At the hearing the applicant acknowledged that he had signed the form.
The applicant also provided a letter from his purported employer GRUPO ARNI SAC stating that he had been granted leave for the period of his travel. Employer payslips as well as a bank statement from Banco de Credito Peru (BCP) dated 31 May 2017 were submitted. The bank statement stated that the account holder was the applicant’s purported employer, GRUPO ARNI SAC and there was approximately $191,497 Australian dollars in the account at that time.
On the basis of these responses and this documentation, the delegate considered, after taking into account the applicant’s responses, that the applicant had been non-compliant with s.101(b) and s.103 of the Act.
The applicant provided pre-hearing both a statutory declaration and a written submission from his representative.
In his statutory declaration dated 10 May 2021, the applicant claims his sister, in January 2017, met Mr Campos who stated that his job was to provide visas for the United States, Canada and Australia. He claims his sister, knowing he wished to go overseas to study, asked him for a business card. After obtaining the card from his sister, the applicant claims he called Mr Campos. He claims he was asked to provide a number of documents including a work reference and bank statements. He said he was informed he would have to pay $7,000 for Mr Campos’ services. He claims he was told he could work and study on the visa he would obtain.
The applicant claims he then obtained a letter from his employer, JL Construcciones and his own bank statements. He claims to have then met Mr Campos, at which time he claims he told him he did not have any awareness of the visa process. The applicant claims he provided Mr Campos with documents pertaining to his identity, studies, work and payslips along with a first payment instalment. He said after two months Mr Campos contacted him and stated the application was progressing and he needed to do his biometrics. He claims to have made his second payment to Mr Campos at this time.
The applicant claims a few weeks later Mr Campos contacted him to confirm that his visa had been approved. He states that he then arranged a meeting to pay Mr Campos his final instalment and to obtain the visa. At the meeting he claims to have been under the impression he had been given a Student visa. He claims he started to check the visa but it was in English. He states that Mr Campos told him to claim that, if anyone asked him who he worked for, to state that he was working as a Manager for Mr Campos’ company Grupo Arni SAC and that this company was covering all his expenses. The applicant claims he became very angry with Mr Campos for telling untruths. The applicant claims Mr Campos said words to the effect that he had filed an application for a business visa rather than a Student visa. He said that Mr Campos told him to attend the conference or depart Australia before the visa expired.
The applicant claims he discovered that he had a business visa to attend a conference in Australia. He claims he did not attend the conference as scheduled in July 2017 since he was undecided about what to do. The applicant claims he subsequently decided to travel to Australia and bought a ticket after the conference. The applicant claims Mr Campos gave him a new date for another conference. He supplied to the Tribunal copies of a return flight departing Lima on 22 August 2017 with a return from Sydney on 19 September 2017 along with registration to attend the Sydney International Jewellery Fair between 26 and 28 August 2017 in Sydney.
In his pre-hearing written submission of 11 May 2021 to the Tribunal, the applicant disagreed that he had been non-compliant with s.101(b) and s.103 of the Act. The applicant’s oral testimony at the hearing of 18 May 2021 reflected his submissions.
The applicant through his representative wrote that he did not complete his visa application or instruct another person to do so. The applicant wrote that he had been offered a visa for $7,000 by a person known as Mr Pedro Campos in Peru. The applicant claims he was unaware that Mr Campos was not a migration agent and was unaware of the illegal activities of Mr Campos.
The applicant claimed in his written submission that he was not in breach of either s.101(b) or s.103 as he submits that he did not give or provide incorrect answers in his Business Visitor (Subclass 600) visa application as he did not complete the initial application. He claims to have provided instructions to Mr Campos to complete a Student visa application. The applicant accuses Mr Campos of completing the Business Visitor visa application and falsifying the reference letter from his purported employer GRUPO ARNI SAC as well as the bank statement from Banco de Credito Peru (BCP) dated 31 May 2017
The applicant claims that his mistake was to trust Mr Campos who, it is claimed in his pre-hearing submission, failed to communicate to the applicant what he was doing until it was carried out: namely, completing and submitting the Business Visitor (Subclass 600) visa application. The applicant through his representative’s submissions stated that he relied on Mr Campos to carry out his instructions and made the mistake of not checking the process.
The applicant claimed through his applicant’s submissions that he was not in breach of s.98 of the Act that states a non-citizen who does not fill in his or her application form is taken to do so if he or she causes it to be filled in, or if it is filled in on his or her behalf. The applicant has claimed he did not engage Mr Campos to submit a Business Visitor visa application, only a Student visa application. As a result, he submits, he cannot be in breach of s.98. Similarly, he claims not to be in breach of s.100 of the Act that stipulates 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 it was incorrect. The applicant claims a total lack of knowledge as to the submission of a Business Visitor (Subclass 600) visa application.
The Tribunal discussed the applicant’s claims and his explanation for the lodgement of his Business Visitor (Subclass 600) visa at the hearing on 18 May 2021. The applicant claimed it was his honest intention only to acquire a Student visa and he had no idea as to the actions of his agent Mr Campos. He claims to have provided his own study documents and work information to Mr Campos.
The applicant claimed in his oral testimony that the decision to select the stream ‘Business visit for meetings, conferences and negotiations’ and the listing of ‘Business’ as his reason to attend Australia on his visa application form were all the work of his agent Mr Campos. He claims Mr Campos answered YES to the Declaration on Page 10 of his form asking whether he had read and understood the information provided to them in the application; had provided complete and correct information in every detail on this form, and on any attachments to it; and that he understood that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
Based on all the evidence before the Tribunal, the Tribunal finds that there was non-compliance with s.101(b) and s.103 by the applicant in the way described in the s.107 notice.
The Tribunal does not accept the applicant’s testimony and submissions that he bears no responsibility for the provision of false information and bogus documentation as part of his Business Visa (Subclass 600) application. The Tribunal notes, as discussed in paragraphs 23 and 24, that the applicant still decided to travel to Australia after being fully aware that incorrect and false information had been supplied as part of his application. The applicant still decided to travel to Australia in the knowledge he had no intention of travelling to Australia for the purposes of attending a conference. As discussed elsewhere in the decision and put to the applicant under the relevant provisions, the Department’s investigation into other Peruvian nationals attempting to enter Australia on the same basis and circumstances of the applicant causes the Tribunal to hold serious doubts as to the veracity of the applicant’s claims that he is not responsible for the provision of false information and bogus documentation as part of his Business Visa (subclass 600) application. On the basis of such evidence before it, the Tribunal considers the applicant’s submissions to be implausible and concocted to explain the provision of patently false and misleading evidence to the Department as part of the application process.
In relation to the Purpose of Stay (Page 1), at the hearing the applicant stated he never intended to attend any conference in Australia. He stated Mr Campos told him he had to register at the conference but he did not do so. The Tribunal notes the applicant decided to still fly to Australia after the conference he held a visa for was completed. The Tribunal notes his actions were subsequently contrary to the answers he provided as to the purpose of his stay in Australia. The Tribunal considers the applicant provided incorrect information as to the purpose of his stay.
In relation to his Current Overseas Employment (Page 6), at the hearing the applicant conceded he had stated he was the Manager of Mr Campos’ company Group Arni SAC and they would be covering his expenses whilst in Australia. The applicant agreed this was entirely false information and he had never worked for this company, but he proceeded with the claim anyway as part of his application. The Tribunal considers this definitive evidence that the applicant was aware that false and misleading information was being provided in his application, and he decided to proceed with the application whilst being aware of this. The Tribunal notes the applicant’s explanation as to why he decided to proceed with such subterfuge – and his anxiety after having spent a considerable amount of money and given up his employment in Peru – but this does not resile from the fact he provided incorrect answers as part of his application. The Tribunal considers the applicant provided incorrect information as to his current overseas employment.
In relation to the funding for his stay (Page 7), the Tribunal notes the applicant claims he had no idea about the submission of such a document. The Department on 13 April 2018 verified the bank statement purportedly from Banco de Credito Peru (BCP) dated 31 May 2017 which the applicant submitted was fraudulent. The Tribunal is satisfied the document is non-genuine. The Tribunal does not accept the applicant’s claim that he was unaware such a document was being submitted and considers the explanation was concocted as part of his attempt to explain his actions to the Tribunal: the Tribunal again notes at paragraph 23 and 24 that the applicant admitted that he was aware the visa application contained incorrect information but decided to travel to Australia on such information anyway. The Tribunal considers this admission is inconsistent with his claim he was unaware bogus documentation was being submitted which included the bank statement purportedly from his employer. The Tribunal furthermore notes the Department’s investigation pertaining to other Peruvian nationals that utilised Mr Campos as an agent and attempted to enter Australia on a very similar basis. Whilst the Tribunal acknowledges the applicant denies being aware of the bogus documentation, on the basis of the information before it, the Tribunal does not accept his claim. The Tribunal considers the applicant has provided a bogus document under the definition of s.5(1)(b) of the Act. The Tribunal considers the applicant has been non-compliant with s.103 because of the submission of this document.

Noting the applicant’s claim that he had obtained his own genuine work reference, bank statements, payslips and provided those to Mr Campos – who the applicant submits has ignored this documentation and supplied his own bogus documentation and false information in his application – the Tribunal has considered whether the applicant has caused the bogus document to be given or provided for the purposes of s.103 of the Act. In this regard, the case law in the context of Public Interest Criteria 4020 which considers the interpretation of ‘caused to be given’ is relevant: Gill v MIBP [2016] FCAFC 142. Although dependent on the individual factual circumstances, the case law broadly provides that where the applicant has used an agent or intermediary to lodge a visa application, knowing complicity or instructions to provide false information or bogus documents is not necessary to find that the applicant has ‘caused’ it to be given by the applicant to the agent either expressly or impliedly: Singh v MIBP [2018] FCAFC 52, or it may be found that the applicant was “recklessly indifferent” to the agent acting unlawfully or dishonestly (Gill v MIBP [2016] FCAFC 142; Kaur v MIBP [2019] FCAFC 53). On the evidence before the Tribunal, the applicant was aware that his agent had supplied false information and bogus documentation to the delegate given his admissions. He decided to travel to Australia whilst being aware such false information and bogus documentation had been submitted. The Tribunal considers the applicant’s actions illustrates he was “recklessly indifferent” to his agent Mr Campos acting unlawfully and dishonestly in submitting false information and bogus documents to the delegate. Even if the applicant did not issue Mr Campos with specific instructions for false information or bogus documentation to be submitted (an assertion the Tribunal does not accept), that does not mean he has not ‘caused’ such information to be given. The Tribunal finds the applicant has, for the purposes of s.103 of the Act, caused bogus documentation and false information to be provided to the delegate as part of his application.
In relation to the Declaration (Page 10), the applicant at the hearing stated he signed “everything I was asked”. The applicant claims his agent Mr Campos answered YES to the Declaration asking whether he had read and understood the information provided to them in the application; had provided complete and correct information in every detail on this form, and on any attachments to it; and that he understood that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. He admits he signed his form but claims no knowledge of the declaration. Again, the Tribunal does not accept the applicant’s claim and considers it concocted. The Tribunal notes, as discussed in paragraphs 24 and 25, that the applicant still decided to travel to Australia after being fully aware that incorrect and false information had been supplied as part of his application. The applicant still decided to travel to Australia in the knowledge he had no intention of travelling to Australia for the purposes of attending a conference. As discussed elsewhere in the decision and put to the applicant under the relevant provisions, the Department’s investigation into other Peruvian nationals attempting to enter Australia on the same basis and circumstances of the applicant causes the Tribunal to hold serious doubts as to the veracity of the applicant’s claims that he is not responsible for the provision of false information and bogus documentation as part of his Business Visa (subclass 600) application, which includes signing his Declaration. Furthermore, the Tribunal again considers the evidence suggests the applicant has ‘caused’ the false information to be provided. Even if the applicant was unaware of what he was signing (which the Tribunal does not accept), the Tribunal considers the evidence clearly suggests he has nevertheless ‘caused’ the information to be provided. The Tribunal considers the applicant’s actions illustrates he was “recklessly indifferent” to his agent Mr Campos acting unlawfully (Gill v MIBP [2016] FCAFC 142; Kaur v MIBP [2019] FCAFC 53). The Tribunal considers the applicant provided incorrect information when answering YES to the Declaration and subsequently provided false information as part of his application.
The Tribunal does not accept the applicant’s submissions that his poor English language skills, his trusting personality and his subsequent claimed lack of awareness of the submission of a Business Visitor (Subclass 600) visa application – and the false information and bogus documents included as part of the application – lead to a situation where he was essentially not responsible for the application. The Tribunal does not accept that his claims to be unaware of Mr Campos’ actions are genuine.
The Tribunal disagrees with the submissions of the applicant’s representative as to s.98 and s.100. Section 98 states: A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf. The Tribunal considers s.98 makes clear that the applicant was responsible for the provision of information in his application. By engaging Mr Campos, the applicant either caused the application to be filled in by Mr Campos, or Mr Campos filled in the application on the applicant’s behalf. He has admitted that he provided Mr Campos with a considerable amount of money to prepare a visa application. He admits to having signed a document requested by Mr Campos as part of the application process. Applicants remain responsible for applications submitted in their own name. By seeking the assistance of another person in Mr Campos, he has caused a bogus document to be provided in the form of the fraudulent bank statement. Even if the applicant was unaware of the bogus bank document, the Tribunal considers the evidence clearly suggests he has nevertheless ‘caused’ the information to be provided. The Tribunal considers the applicant’s actions illustrates he was “recklessly indifferent” to his agent Mr Campos acting unlawfully (Gill v MIBP [2016] FCAFC 142; Kaur v MIBP [2019] FCAFC 53). As for the provision of incorrect information as part of his visa application, s.100 stipulates that an answer to a question is incorrect even though the person who caused the answer to be given or provided did not know it was incorrect. The applicant was aware Mr Campos submitted a visa application. Even if his representative submitted information in his application that was false and the applicant was unaware (a submission the Tribunal does not accept), the onus of responsibility remains with the applicant to ensure such basic information being submitted as part of his visa application is correct. On the evidence before the Tribunal, the applicant bears ultimate responsibility for completing the visa application and providing incorrect information. The Tribunal considers it implausible that the applicant had no awareness, having spent $7,000 on a representative, of even the subclass of visa Mr Campos was applying for. The Tribunal, as discussed with the applicant at the hearing, notes that information in Spanish on the visa application process is available on the Department’s website.
The applicant’s representative raised in his submission arguments pertaining to Public Interest Criterion 4020 and the notion of “purposely falsity”. The applicant’s representative raised Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 where the Court held that to refuse a visa on PIC 4020 there was a necessity to show that the information or document had the quality of “purposely falsity” and an application could not be refused due to PIC 4020 if the applicant could explain an innocent mistake in a document or information provided by them on their behalf. The Tribunal noted to the applicant and his representative at the hearing that the matter before the Tribunal was a cancellation under s.109, not a PIC 4020 refusal. The Tribunal furthermore does not accept the applicant’s explanation that he was unaware of the non-genuine information and counterfeit documentation that was submitted by Mr Campos as part of his visa application. In the present case, the Tribunal considers it clear on the facts and the applicant’s admission that the bogus document and incorrect information were purposely untrue. Even if it was accepted that the applicant was unaware, the Tribunal considers it can be clearly established on the facts that incorrect information and bogus documentation were provided.
At the hearing the Tribunal informed the applicant that a certificate has been issued by the delegate under s.375A of the Act restricting the Tribunal from disclosing certain information in the Departmental file on the basis that disclosure of the material would be contrary to the public interest because the information contained in this reference number would disclose, or enable a person to disclose the existence or identity of a confidential source of information; and may disclose lawful methods for preventing, detecting, and investigating breaches of the law which would or would be likely to prejudice the effectiveness of those methods. The Tribunal noted release of the information was prevented by s.375A of the Act and informed the applicant the Tribunal considers that the certificate contains a valid ground of public interest immunity not to disclose the information. The Tribunal invited the applicant to consult with his representative and invited him to make submissions on the validity of the certificate and why the information should be released. The Tribunal provided the applicant with a copy of the certificate.
The applicant consulted his representative whilst the Tribunal adjourned the hearing. Upon resumption the applicant through his representative stated that they considered the certificate was not valid because it was against procedural fairness to not being permitted to view the document covered by the certificate. The applicant through his representative submitted that it would be difficult to make adequate submissions without viewing the document.
The Tribunal noted the applicant’s response and stated that it considered the certificate to be valid. The Tribunal provided the ‘gist’ of the adverse information to the applicant at the hearing. The Tribunal informed the applicant that the particulars of the information were that: the Department had information that non-genuine visitors from Peru were utilising an authorised recipient to provide support to acquire fraudulently obtained offshore visitor visas; and that further Peruvian nationals were attempting to enter Australia via a Business Visitor visa ostensibly to attend a conference. The Tribunal stated that when detained by ABF and questioned, at least one individual admitted to coming to Australia on the basis of work. The Tribunal noted this individual admitted to the Department his visa had been organised by a person in Peru and it was fraudulent. The Tribunal noted the individual identified the applicant as someone who had his visa organised by the same person and in the same fashion. The Tribunal stated that the particulars were that the Department discovered the applicant had lodged a very similar application to that of the man detained by ABF – and that both the applicant and the man detained claimed employment at the same organisation; and used the same personal email address; and both stated the purpose of the visit was to attend a conference. The Tribunal also noted that an email address was linked to Mr Nicolas Campos Rivera, who had also previously admitted to ABF he had come to Australia to seek work. Mr Campos Rivera had also submitted a Business Visitor visa asking to visit Australia to attend a conference.
The Tribunal informed the applicant the information was relevant because it appeared, he may have been part of a systemic attempt to fraudulently obtain offshore visitor visas. It was also relevant because it illustrated that he had submitted under his name false, identical information as part of his own visa application process. The Tribunal also noted the information was relevant because he had been identified as someone onshore who had their visa organised in this fashion, suggesting he may have been aware a fraudulent offshore visa application was lodged in his name with his knowledge.
The Tribunal invited the applicant to adjourn the hearing whilst he consulted with his representative before commenting on or responding to this information. After an adjournment, the applicant stated he would like to respond in writing. A response was provided to the s.359A invitation on 1 June 2021.
In his response through his representative the applicant noted, as stated at the hearing and referred to in paragraph 44, it would have been preferential if they had had the opportunity to view the material before the Tribunal. The Tribunal notes, as it explained at the hearing, that a valid s.375A certificate prevents the Tribunal from releasing the information. The Tribunal notes, mindful of its s.359A obligations, that it made every effort to nevertheless provide the applicant with the ‘gist’ of the adverse information and is confident it did so.
In his response to the substantive matters raised, the applicant denied any involvement or conspiring in any criminal network associated with his former representative. He stated that he was offered a visa by his former representative, Mr Campos, who was not a migration agent. He denied any awareness of Mr Campos’ illegal activities at any time. The applicant stated that Mr Campos was a 55 years-old man who portrayed himself as a professional agent who carried out migration applications in the United States, Canada and Australia. He stated that Mr Campos had shown him pictures of Mr Nicolas Campos River or Rivera in Sydney which convinced him he was a reputable agent.
The applicant in his s.359A response again stated that Mr Campos had failed to communicate to him what he was doing, namely lodging a Business Visitor visa application, until after the process was complete. He claims he supplied correct bank and education references and documents to Mr Campos for a Student visa application that were never lodged. He claims he did not speak English at the time and simply signed part of a form that he was requested to by his then agent. He claims he could not verify the information provided by his then agent and did not understand what he was actually signing. He claims he relied on his agent Mr Campos to carry out his instructions but it was difficult for him to verify as he could not speak English. The applicant claims he was vulnerable, had been taken advantage of by a criminal network and he had no access to the internet or any institution to verify Mr Campos’ credentials because he worked remotely in construction. He claimed to be a victim of a criminal organisation taking advantage of vulnerable people.
The Tribunal has considered the applicant’s s.359A response. The Tribunal considers the applicant’s claim he was unaware his agent Mr Campos was lodging a Business Visitor visa rather than a Student visa implausible and considers the applicant has contrived an explanation in response to the cancellation of his visa. The Tribunal notes the applicant spent some AUD$7,000 in utilising Mr Campos’ migration services, a very significant amount of money in Peru. The Tribunal considers the suggestion that the applicant neither undertook due diligence to investigate Mr Campos’ credentials, or checked and was unaware of the documentation being submitted by Mr Campos to the Department as fanciful. The Tribunal notes the evidence of systemic migration fraud in the information covered by the s.375A certificate. The Tribunal notes the individual questioned by the ABF named the applicant as an individual who had entered Australia on the same fraudulent information and credentials. The Tribunal does not accept the applicant’s claim he is the victim of criminal networks taking advantage of unsuspecting lawful and honest individuals seeking a Student visa. The Tribunal does not accept the applicant was unaware Mr Campos was lodging bogus documentation and false information on his behalf. The Tribunal notes the applicant admitted that he was told to claim a false employer, false job and a false bank statement if questioned about his employment when entering Australia. The Tribunal considers the applicant was alive to and complicit in the bogus documentation and false information being supplied to the Department.
The Tribunal considers the information covered by the s.375A certificate which was put to the applicant under s.359A also germane to its conclusion. The Tribunal considers the fact that a Peruvian national detained by ABF was found to have had his visa organised by the same person and utilising the same claims instructive. The Tribunal notes the individual detained by ABF was not only falsely claiming employment at the same organisation; the same personal email address: and the same purpose of visit (ie attend a conference), he also specifically identified the applicant as someone that had entered Australia on almost identical purposes and using the same information. The Tribunal considers this evidence that the applicant has knowingly part of a broader attempt to acquire fraudulently obtained offshore visitor visas through his agent.
The Tribunal considers that false information has been provided in relation to the purpose of the applicant’s stay in Australia; his then current overseas employment and the funding of his stay. The applicant has furthermore supplied false information in regard to claiming to have provided complete and correct detail in every detail on his form and any attachments and to have read and understood the information provided to him in the application. The applicant has stated he signed the form provided to him by Mr Campos. The Tribunal is satisfied that the applicant has provided incorrect answers on his application form that are non-compliant with s.101(b).
The Tribunal considers that ‘counterfeit’ documents in the form of the bank statement have been submitted in support of the applicant’s application for the purpose of supporting the false assertions pertaining to the applicant’s claimed employment and the funding for his stay. The Tribunal is satisfied that these documents are non-compliant with s.103.
For these reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations). Briefly, they are:
·     the correct information;
·     the content of the genuine document (if any);
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches;
·     any contribution made by the holder to the community.

While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual) PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The correct information was that the applicant was not, as claimed in his application, a manager employed by Grupo Arni SAC and he was not travelling to Australia to attend a conference. The correct information is that he was not travelling to Australia for business visitor purposes. The correct information, furthermore, is the applicant did not have adequate funds for his stay as declared in the bank statement provided, a statement that has subsequently been found to be a fraudulent document. The Tribunal notes that the bank statement was provided as evidence that he was both sponsored by his employer to attend a conference and he had adequate funds for the claimed duration of his visit to Australia.
The Tribunal does not accept the applicant’s claims that he was unaware that Mr Campos was supplying information and documentation to the Department as part of his application that was false and contrived.
On the evidence before it concerning the correct information, the Tribunal weighs this factor heavily in favour of cancelling the visa.
The content of any genuine document
The Tribunal notes from the decision record the applicant provided that the Department undertook integrity checks to determine that the bank statement provided by the applicant purportedly of Grupo Arni SAC, was a false and fraudulent document. The applicant at the Tribunal’s hearing agreed that the document was counterfeit and stated he had not worked for Grupo Arni SAC.
Whilst noting the applicant’s claims to be unaware that the document was submitted – a claim the Tribunal does not accept – the Tribunal considers the provision of bogus documentation as part of the visa application is a matter of serious concern and an action that undermines the integrity of Australia’s visa system.
On the evidence before it concerning the content of any genuine document, the Tribunal weighs this factor heavily in favour of cancelling 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
The Tribunal considers the decision to grant the applicant a Business Visitor (Subclass 600) visa was at the very least partly based on the provision of both incorrect information and a bogus document.
The applicant provided a bank statement from Banco de Credito Peru (BCP) dated 31 May 2017 which listed Grupo Arni SAC as the account holder. The statement claimed the account contained over $AUD191,000. This statement was provided as evidence that the applicant had adequate means to support himself whilst visiting Australia as a business visitor. There is no evidence before the Tribunal of the applicant providing any other evidence of personal funds for his visit to Australia other than the correspondence from his supposed employer, Mr Nicolas Campos River, and a payslip. At the hearing the applicant conceded Mr Campos had not been his employer and the payslip was not genuine. In response to the Tribunal’s questions, the applicant stated no other evidence had been submitted to illustrate he had adequate means of support in Australia.
The question for the Tribunal is, but for this information, would the applicant have been granted the Business Visitor (subclass 600) visa.
The Tribunal notes that cl.600.212 of the Regulations states the applicant has:
(a)Adequate means to support himself or herself; or
(b)Access to adequate means to support himself or herself;
During the period of the applicant’s intended stay in Australia.
The bank statement from Banco de Credito Peru (BCP) regarding an account held by the applicant’s purported employer, Grupo Arni SAC, was provided as part of the application in order to illustrate the applicant had adequate means to support himself during his intended stay in Australia to attend a conference. The Tribunal considers the applicant was granted a Business Visitor (Subclass 600) visa at least partly on the basis of the bogus document and the incorrect and false information contained within. A letter from his alleged employer, Mr Nicolas Campos River ,was also submitted. The claim, as confirmed by the applicant at the hearing, that the applicant was an employee of Group Arni SAC, was false. The Tribunal considers the decision to grant a visa was also at least partly based on this incorrect information.
The applicant provided evidence of a conference he was intending to attend as the purpose for his planned visit to Australia holding a Business Visitor (Subclass 600) visa. The applicant stated he had no intention however of attending such a conference. The Tribunal considers the applicant was granted a Business Visitor (Subclass 600) visa at least partly on the basis of this incorrect information concerning conference registration and attendance.
On the evidence before it concerning whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document, the Tribunal weighs this matter heavily in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
The Tribunal has outlined the evidence pertaining to the circumstances in which the non-compliance occurred between paragraphs 17 and 54 of this decision record.
The non-compliance occurred through the submission of both a bogus document and incorrect information as part of the applicant’s Business Visitor (Subclass 600) visa application. This information, being a counterfeit bank statement claiming to be an account of Grupo Arni SAC, the company he claimed to work for as a Manager, was submitted as evidence the applicant had adequate funds (through his claimed employer) to support himself during the period of his intended stay in Australia, as well as that he was a genuine business visitor to Australia. Incorrect information was also submitted in relation to the applicant’s planned registration and attendance at a conference in Australia.
The applicant strongly denies any responsibility or culpability for the submission of such documentation, claiming that his agent Mr Campos unilaterally decided to lodge a Business Visitor (Subclass 600) visa application and the associated supporting (and false) evidence rather than a Student visa which was what the applicant claims to have requested. He claims he was unaware of bogus documentation and incorrect information being submitted by his agent Mr Campos as part of his visa application.
At the hearing the applicant provided his own explanation of events in some detail. He claimed to have trusted the agent Mr Campos who had showed him photographs of people in Australia he had allegedly assisted in acquiring visas. He claims to have trusted Mr Campos to lodge a valid, correct and lawful application for a Student visa. As a result of his faith in Mr Campos he had resigned his employment as a foreman in construction and farewelled his family. He claims to have signed the forms where Mr Campos directed him but he claims he was unable to understand the forms as they were in English.
The Tribunal asked the applicant what information he had provided Mr Campos to utilise in his purported Student visa application. He stated he had provided study certificates of his completed education in Peru. No evidence of any potential enrolments or courses in Australia were provided but he stated he had wished to learn English followed by a business course.
The Tribunal has considered the applicant’s submissions as well as his testimony at the hearing. The Tribunal, for the reasons already outlined between paragraphs 34 and 54 in this decision record does not accept the applicant was unaware that his agent Mr Campos was submitting a Business Visitor visa rather than a Student visa application. The Tribunal does not accept the claim that the applicant was unaware of what he was signing as the documentation he was provided to sign was in English. The Tribunal considers the applicant’s explanations to be implausible and concocted to explain the provision of both incorrect information and bogus documentation to the Department. The Tribunal does not consider his non-compliance has been caused by the unilateral behaviour of his agent Mr Campos. The Tribunal, for the reasons previously provided between paragraphs 34 and 54, does not accept the applicant is not responsible for the bogus documentation and incorrect information that has been submitted to the Department The Tribunal furthermore again notes that s.98 of the Act states that a non-citizen who does not fill in his application form is taken to have done so if he causes it to be filled in on his behalf.
On the evidence before it concerning the circumstances in which the non-compliance occurred, the Tribunal weights this factor in favour of cancelling the applicant’s visa.
The present circumstances of the visa holder
Oral evidence was received at the Tribunal’s hearing concerning the applicant’s present circumstances from the applicant himself; his partner and sponsor of his outstanding Partner visa application Ms [B]; Ms [B]’s son [Mr C]; and his employer Mr Arrilucea. Written submissions were also made as to the applicant’s present circumstances after having been in Australia now for over three and a half years.
The applicant stated his interest in coming to Australia was to study. The Tribunal notes the applicant applied for a Student visa about three months after he arrived in Australia on the Business Visitor visa and subsequently successfully undertook two English language courses between September 2018 and April 2019.
The applicant talked about how he had met his partner Ms [B] in the local Australian Peruvian community. He discussed the development of his relationship with Ms [B] over the last three years and discussed how they had been saving together to buy a house. The applicant said he and Ms [B] had enjoyed a “quiet life” together before everything came to a halt following the cancellation of his visa. On the basis of this de facto relationship the applicant applied for a Partner visa on 12 April 2019.
The applicant and Ms [B] are both in full-time paid employment. Both stated that the applicant pays the rent on the property they live together at with Ms [B]’s son, [Mr C]. Ms [B] is responsible for paying for household costs like utility bills and food. The applicant claims to make around $2,250 per week before tax. The applicant stated that due to his income, Ms [B] had been able to cut back her full-time hours in employment in [a] sector and she was now only earning between $550 and $650 a week whilst their rent was $450 a week.
Ms [B]’s son [Mr C] is currently a university student, [studying]. He has an interest in undertaking further graduate [studies]. [Mr C] currently lives with the applicant and Ms [B]. The applicant stated – and was supported by [Mr C] in his own oral testimony – that he played a significant role as a mentor and supporter of [Mr C]. It is claimed the applicant has assisted in financial support in areas such as paying for some of the tests [Mr C] has to undertake to qualify for admission to studies in [an area].
Ms [B] also has a [age] year old daughter who at the time of the hearing was in quarantine having returned to Australia from [overseas]. She is pregnant and due to give birth shortly. Ms [B] said her daughter would also reside with her for a period until she acquired her own property.
The applicant both orally and in his written submissions raised the mental and psychological health of Ms [B]. He stated that Ms [B] had suffered from depression in the past due to the break-up of her previous married relationship. The applicant discussed how Ms [B] had lost her mother and sister and didn’t have a large family to rely upon for support. He stated that she had received counselling but there was no formal Mental Health Plan. Ms [B] herself provided similar testimony. The applicant stated that he importantly provided emotional support that Ms [B] required. Ms [B] concurred, stating that the applicant had helped her emotionally and stopped her depression.
Ms [B] stated that she and the applicant had intended to become engaged but the pandemic had intervened and they were waiting for her daughter to return to Australia. Evidence was provided of two rings that were not formal engagement rings but acquired by the sponsor whilst she was in Peru to show their support for each other.
The applicant stated that he, Ms [B] and [Mr C] would all suffer hardship if his visa was to be cancelled. He stated that he had [suffered an injury] due to a workplace accident and as a result had suffered discrimination in Peru. He had quit his job in Peru so starting again would be difficult. The applicant stated that any cancellation of his visa would be devastating for Ms [B] personally on an emotional and financial level. In terms of her son [Mr C], the applicant said he would face hardship as he needed the support of another man in the household. [Mr C] in his own testimony stated the applicant was like a father figure to himself. He expressed concerns that his mother Ms [B] would rely upon him much more emotionally if the applicant’s visa was to be cancelled – something that was problematic given his age, ambitions and planned graduate study.
The applicant also submitted, supported by his employer Mr Arrilucea in both oral testimony and in statutory declaration, that any cancellation of his visa would cause considerable problems for his employer. He stated that he had worked in the construction industry since the age of 14 and had experience in a wide range of trades and roles in construction. The applicant’s employer Mr Arrilucea was effusive in his testimony concerning the applicant, stating he had worked with him for three and a half years and he was a highly valued, trusted and reliable worker.
The Tribunal has considered the extensive evidence presented pertaining to the applicant’s present circumstances.
The Tribunal accepts that the applicant and Ms [B] are living together in a de facto relationship with her son [Mr C] in a single household. The Tribunal accepts there may be a degree of emotional hardship for all parties if the applicant’s visa was to be cancelled. The Tribunal has taken into consideration the claim by Ms [B] and her son that the physical presence of the applicant in the household is a part of the emotional support he provides them and the family provides each other. The Tribunal has also taken into account the letter from Ms [B]’s daughter [who] has attested to the close emotional bond her mother and brother share with the applicant. The Tribunal accepts there will be a degree of hardship for all parties, in particular Ms [B] and her son, if the applicant’s visa is to be cancelled. The Tribunal notes however the parties can continue to provide each other with emotional support through a wide range of electronic and telephonic communications should the applicant’s visa be cancelled. The Tribunal acknowledges this may not be interaction of the same quality as the applicant’s physical presence in the household, the Tribunal does however consider any emotional hardship can nevertheless be mitigated through the use of electronic and telephonic communication. The Tribunal also notes the applicant would retain the opportunity to apply for a Bridging Visa E and remain in the community with Ms [B] and her son should his Bridging Visa A be cancelled.
In relation to the financial situation Ms [B] and her son may face, the Tribunal notes that Ms [B] has worked as an [occupation] for her employer for 12 years. The evidence suggests she is highly regarded by her employer. In response to the Tribunal’s questions, [Mr C] stated that until the arrival of the applicant three years ago, Ms [B] maintained a household through her own salary, his own part-time salary in hospitality and monies through Centrelink: she reports having cut her work hours with the applicant providing financial support through his own income. Whilst accepting a potential degree of increased hardship, the Tribunal is not satisfied that Ms [B] and [Mr C] cannot establish a household similarly if the applicant’s visa was to be cancelled, noting the anxiety she may face from the cancellation of the applicant’s visa. The applicant, who the Tribunal accepts is an excellent, experienced and well-regarded worker in the construction industry, can potentially continue to provide financial support to Ms [B] and her son if he departed Australia via regaining employment if he were to return to Peru. [Mr C] has experience working in the hospitality industry which offers flexible hours for someone also studying, a situation not uncommon for those at university. The Tribunal accepts there will be a degree of financial hardship should the applicant’s visa be cancelled, but on the facts considers any such hardship can be mitigated through actions such as Ms [B] returning to work the hours she previously undertook prior to cohabitating with the applicant. The Tribunal has taken into account the fact that Ms [B] was scheduled to undergo surgery on [date] June 2021 and was taking a month off to recuperate, which will obviously delay in the short-term her ability to extend her work hours.
The Tribunal accepts the evidence of the applicant’s employer Mr Arrilucea that he is very well-regarded and a trusted and reliable worker. The Tribunal accepts the applicant’s three and a half years of employment have been constructive and productive for both his employer and himself financially. The Tribunal notes however that the applicant is not in Australia on an employment visa. He is holding a bridging visa whilst he lodges a Partner visa application, having arrived in Australia on what were essentially false premises and incorrect information. The Tribunal accepts there will be human resources and business challenges for Mr Arrilucea if the applicant’s visa was cancelled and he was unable to continue in his employ.
The applicant is earning a solid income as a trusted employee. He resigned his previous role in construction in Peru to come to Australia. The Tribunal accepts there will potentially be a degree of financial challenge and hardship if the applicant’s visa is cancelled. The Tribunal notes, however, that the applicant has a good work history whilst in Peru, holding down employment up until he departed for Australia. Whilst the Tribunal recognises the applicant’s previous injury and disability, the Tribunal notes his physical impairment was no impediment to his maintaining employment in both Peru previously and Australia. The Tribunal considers the evidence suggests the applicant would be able to acquire employment in construction again in either Peru despite his injury. The Tribunal is not convinced that there is any significant degree of financial hardship that will be faced by the applicant should his visa be cancelled and gives his claim little weight.
The Tribunal has considered Ms [B]’s mental and psychological health. Ms [B] has claimed to suffer from depression, anxiety, insomnia and stress. In her evidence she stated that she feared her stress was increasing due to her concern the applicant might be deported. The applicant and Ms [B] talked about her visit to a psychologist Ms Liela Vergara after attending an initial assessment on 3 May 2021. The report, with a single page submitted as part of the applicant’s submissions, states that Ms [B] “has been experiencing psychological distress as her current partner may be deported from Australia”. Correspondence from two GPs, Dr Jhingran and Dr Milad was also submitted, long-term doctors of Ms [B] who stated they had treated Ms [B] in the past for emotional issues and depression related to her loneliness and being a single mother raising children. It was stated that Ms [B] had previously been treated with medication due to her frame of mind.

The Tribunal accepts the claim that the break up of her previous relationship caused Ms [B] stress and anxiety at the time. The Tribunal accepts Ms [B] consulted her doctors at the time and has received assistance previously. The Tribunal accepts the emergence of the applicant has brought happiness to Ms [B]. The Tribunal does not however consider Ms [B]’s mental health presently, and the role of the applicant, is a reason not to cancel the applicant’s visa. The Tribunal notes that both the applicant and Ms [B] confirmed there is no Mental Health Plan in place for Ms [B] and, in response to the Tribunal’s questions, the applicant conceded that the visit to the psychologist three weeks before the Tribunal hearing was to acquire a report that could help the applicant’s case. The Tribunal notes the lack of any evidence of any consultation with psychological and mental health specialists prior to the applicant receiving the Tribunal invitation to hearing. The Tribunal considers the visit by Ms [B] to the psychologist was ostensibly to obtain and provide evidence in support of the applicant’s case at the Tribunal rather than for the purposes of treatment. The Tribunal gives the report limited weight. The Tribunal furthermore notes that in the evidence which has been providing pertaining to Ms [B]’s mental and psychological health, there is no mention anywhere about the role of the applicant in providing care and emotional support to Ms [B].
The Tribunal accepts that Ms [B] was previously suffering from depression and anxiety after the end of her previous married relationship and notes the evidence of progress notes of Dr Milad and Dr Jhingran concerning depression and anxiety between 2013 and 2016. The Tribunal notes Ms [B] remains prescribed with [medicine] for depression. The Tribunal is not however satisfied that Ms [B]’s current psychological state and mental health is a reason why the applicant’s visa should not be cancelled. The Tribunal notes furthermore that the Ms [B] lives with her own son and her daughter has just arrived back in Australia and intends to move in with Ms [B] for a period of time. The Tribunal considers Ms [B] can receive emotional support from her two adult children, both with her in Sydney, as well as from the applicant through various forms of electronic and telephonic communication. Ms [B] can also receive professional support and assistance through Medicare and the public health system if she so requires. The Tribunal has sympathy for Ms [B] and accepts the submissions that she faced considerable psychological hardship after her previous marriage ended. The Tribunal gives her circumstances some weight in the applicant’s favour.
The Tribunal has also considered the claim that Ms [B] may become depressed if separated from the applicant. The Tribunal notes the oral evidence of Ms [B], the applicant and Ms [B]’s son on the matter. The Tribunal notes the claim that she is stressed by the possibility of losing the applicant and the impact cancellation of the applicant’s visa may have upon her family unit. The Tribunal accepts that Ms [B] may face a heightened degree of anxiety and stress should the applicant’s visa be cancelled. Again The Tribunal notes the applicant can apply for a Bridging Visa E should his visa be cancelled, which would allow him to remain in the community with Ms [B] and her son if granted. The Tribunal considers the evidence suggests she can avail herself of emotional support from her son and daughter in person. Ms [B] can also remain in contact with the applicant via telephonic and electronic communications should he depart Australia. The Tribunal acknowledges that there is an increased chance of Ms [B] becoming further depressed should the applicant’s visa be cancelled. The Tribunal considers however, for the reasons above, that any adverse impact she may regrettably face can be mitigated.
The Tribunal has considered the specific hardship that may be caused to the applicant and Ms [B] given the applicant has an outstanding Partner visa application before the Department should his Bridging visa A be cancelled. The Tribunal notes that should the applicant’s Bridging visa ‘A’ be cancelled, the applicant may be able to apply for a Bridging visa ‘E’ that may allow him to remain in Australia pending the finalisation of his Partner visa application. If granted the applicant may be able to apply for work rights on the grounds of financial hardship and remain in the employ of Mr Arrilucea. The Tribunal also notes that the applicant may otherwise await the outcome of his Partner visa application whilst in immigration detention. The Tribunal considers any hardship caused by the cancellation of his Bridging visa A to the applicant in relation to his Partner visa application to be limited.
Ms [B] and the applicant raised other health issues Ms [B] is currently facing. She was due to be admitted to surgery on [date] June 2021. She claims she will then need to rest at home and not work for a month. The Tribunal accepts her claims but notes that she will have both her adult son and likely her daughter residing with her during this period. As an Australian citizen with access to the NSW public health system and Medicare, Ms [B] will also be able to access medical assistance if she faces any challenges whilst in recuperation from her surgery. Whilst the Tribunal accepts Ms [B] would prefer the applicant was present providing support, the Tribunal does not accept that the applicant’s visa should not be cancelled for this reason and gives the claim little weight.

100. The applicant has also raised the matter of COVID-19 in Peru and his concerns for both his own health and well-being, and those of Ms [B] should his visa be cancelled and he have to return to Peru. A number of journal articles were supplied concerning the current health situation in Peru. The Tribunal accepts Peru has had a significantly higher mortality rate than Australia due to COVID-19. The Tribunal recognises the pandemic but does not consider, in the circumstances of this case, that it represents a reason in its own right not to cancel the applicant’s visa. The Tribunal notes that the applicant can take a range of precautions to limit any exposure to COVID-19 such as avoiding crowded public spaces and mass gatherings and wearing a face mask and maintaining 1.5 metres distance from others whilst in all public spaces. The Tribunal notes that COVID-19 is a global pandemic and no nation is immune from the virus. The Tribunal furthermore notes the roll-out of COVID-19 vaccines around the world including in Peru. There is no evidence or claim before the Tribunal that the applicant is suffering from any co-morbidities that represent any particular vulnerability to COVID-19. The Tribunal recognises COVID-19 remains a health risk. The Tribunal has considered the applicant’s submissions concerning the threat of COVID-19 in Peru but does not consider it represents a reason not to cancel the applicant’s visa. The Tribunal accepts the applicant’s partner Ms [B] does not wish to travel to Peru due to the risks and her own health challenges. Ms [B] is not compelled or required to travel with the applicant. She is an Australian citizen. The Tribunal, when considering the present circumstances of the applicant, does not consider COVID-19 and its impact upon the applicant and his family are reasons not to cancel his visa. The Tribunal gives the claim limited weight.
101. The Tribunal has considered the evidence before it pertaining to the present circumstances of the applicant. It has taken into full account the fact that he and Ms [B] have been residing together for well over three years and he is respected and supported by both Ms [B]’s adult children. The Tribunal has taken into account the current financial situation facing the applicant, Ms [B] and their family; and the health and wellbeing of Ms [B] especially. Collectively, the Tribunal has given these matters some weight in the applicant’s favour.
102. On the evidence before it concerning the present circumstances of the applicant, in particular the hardship potentially faced by the sponsor Ms [B], the Tribunal weighs this factor against cancelling the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
103. The Tribunal has considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part of the Act.
104. The Tribunal notes that the applicant did not comply with his obligations under s.105 of the Act: s.105 Particulars of incorrect answers to be given
(1) if a non-citizen becomes aware that:
(a) an answer given or provided in his application form; or
(b) an answer given in his or her passenger card; or
Information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107 was incorrect when it was given or provided, he or she must as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.
105. Based upon the applicant’s testimony at the hearing, the applicant became aware of the fact that incorrect answers had been given or provided in his application form in Peru, at the time he received his visa from his agent. The applicant did not however notify an officer in writing of the incorrectness and of the correct answer as required by s.105 of the Act. Instead, in knowledge of the incorrect information that had been utilised leading to the grant of the visa, the applicant departed for Australia.
106. The Tribunal notes that the decision record the applicant provided indicates the applicant did respond to the Notice of Intention to Consider Cancellation (NOICC) and he has engaged in the cancellation consideration process.
107. The Tribunal considers the applicant was in clear breach of his obligations under s.105 of the Act. On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
108. The Tribunal notes that ‘any other instances of non-compliance’ under reg.2.43(g) refers to ss.101-105 non-compliances. The s.105 non-compliances have been referred to between paragraphs 115 and 121 of this decision record. The Tribunal finds there are no other instances of non-compliance known to the Tribunal.
The time that has elapsed since the non-compliance
109. On the evidence before the Tribunal, the applicant has now been in Australia for well over three and a half years.
110. At the hearing the applicant discussed his three and a half years in employment as well as his relationship with the sponsor and his contribution to supporting her family. He claims to have developed strong personal and business ties in Australia since 2017.
111. In post-hearing submissions the applicant stated his circumstances were now very different to when the claimed non-compliance occurred, now being the partner to an Australian citizen and father figure to two step-children. His claims are strongly supported by both the sponsor Ms [B] and the sponsor’s son [Mr C]. He also drew attention to his ongoing full-time employment, claims strongly supported by his employer Mr Arrilucea.
112. The Tribunal accepts that the applicant has developed a strong and close working relationship with his employer and is a valued employee. The Tribunal nevertheless notes that the applicant is not holding a business or employment visa. The Tribunal notes the evidence concerning his relationship with the sponsor and her children. The Tribunal accepts the applicant is familiar with his sponsor and has developed a relationship with the sponsor and her family over the past few years.
113. The Tribunal has considered the time that has elapsed since the non-compliance and weighs this matter slightly against cancelling the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
114. The Tribunal notes that breaches of visa conditions are breaches of migration law so they can be considered under reg.2.41(j) if those breaches occurred after the non-compliance that triggered the cancellation: Dalla v MIBP [2016] FCA 998 at [19].
115. The Tribunal discussed with the applicant his Business Visitor (Subclass 600) visa that, as pointed out in the delegate’s decision the applicant provided, contained Condition 8115 which states that the holder of such a visa ‘must not work in Australia other than by engaging in a business visitor activity’.
116. The applicant did not hold a Student visa until 3 February 2018. After applying for a Student visa on 21 November 2017, the applicant was granted a Bridging visa A that also held condition 8115.
117. The Tribunal discussed with the applicant the information contained in the decision record which stated he had, in support of his Student visa application, provided a Commonwealth Bank statement dated 14 November 2017 which included payments from ‘SMMC’ for 30 October 2017, 2 November 2017 and 9 November 2017 for $1,100 on each occasion.
118. At the Tribunal hearing the applicant agreed that SMMC was San Marcos Infrastructure Pty Ltd, the company he had worked for for three and a half years. In response to the Tribunal’s questions the applicant conceded that the payments in October and November 2017 for $1,100 were salary payments. The applicant claims to not have been aware that he was unable to work in such employment at this time.
119. In post-hearing submissions concerning any other instances of non-compliance by the applicant known to the Minister, the applicant through his representative pointed out that the applicant has developed strong and social ties to Australia, was a taxpayer, a highly valued employee and supports his family in Australia. The Tribunal has discussed this evidence and given it consideration under the present circumstances of the visa applicant.
120. The applicant in post-hearing submissions also referred to the case Dalla (Migration) [2018] AATA 128. The applicant submitted that, as in Dalla, the fact that the applicant was a valued employee, and may have employment for a period of time if the visa cancellation was set aside, was favourable to the applicant. The Tribunal notes it is not bound by previous decisions of the Tribunal. The Tribunal furthermore notes that it has already considered the applicant’s employment and value to his employer when considering the applicant’s present circumstances. The Tribunal gives the claim in relation to any other instances of non-compliance known to the Minister no weight.
121. The Tribunal recognises the applicant has conceded that he was working and receiving wages in breach of Condition 8115 of his visa. The Tribunal finds that the applicant’s behaviour in working and receiving wages in breach of Condition 8115 of his visa is conduct amounting to a breach of the law. The Tribunal nevertheless notes that, even though it was only for a period of a few months and he has the support of his employer, the applicant has clearly been non-compliant with a condition attached to his visa. The Tribunal notes that before affording this factor adverse weight, the Tribunal is required to make a finding of fact on the conduct of the applicant amounting to a breach of the law: Dalla v MIBP [2016] FCA 998 at [29]. Based upon the applicant’s own admission, the Tribunal is satisfied that the applicant was in breach of Condition 8115 and was subsequently in breach of migration law whilst working between in late 2017. The Tribunal weighs this matter in favour of cancelling the applicant’s visa.
Any contribution made by the holder to the community.
122. At the Tribunal’s hearing the applicant stated he had helped an elderly Peruvian woman in a Housing Commission with getting her bathroom fixed and was making a contribution to the community. There is no evidence to support this claim before the Tribunal.
123. The applicant has raised his employment and his past successful English language studies in Australia as contributions to the community. The applicant in pre-hearing submissions raised Tribunal case 1607767 where a previously constituted Tribunal gave positive weight to the applicant having studied and worked in Australia. The Tribunal is not bound by previous decisions of the Tribunal. The Tribunal notes that the applicant’s study and employment have been for the benefit of himself principally rather than that of the community. The Tribunal furthermore notes that the applicant’s presence in Australia to make any claimed contribution was brought about by the applicant providing bogus documentation and non-genuine information to the delegate.
124. The Tribunal has considered the contribution made to the community and weighs this matter slightly against cancelling the applicant’s visa.
Human rights implications
125. The Tribunal has considered whether cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations
126. The applicant has raised what he claims are human rights implications should his visa be cancelled. The applicant has raised the COVID-19 pandemic and its impact in Peru as well as the International Covenant on Civil and Political Rights (ICCPR), particularly Article 17 and Article 23. The Tribunal notes the applicant has not made any claim to protection.
127. The applicant has submitted voluminous documentation in the form of magazine and journal articles and reports as well as data about the COVID-19 pandemic and its impact on the Peruvian people. The applicant states that his life would be in danger should he return to Peru and the Peruvian death rate from COVID-19 per capita is the highest in the world.
128. The Tribunal notes the data provided concerning COVID-19 in Peru and accepts there is currently a greater risk and higher mortality rate than Australia. The Tribunal notes however that the applicant, should he consider that he has an underlying medical condition that puts him at a particular risk, can register to receive a COVID-19 vaccination in Australia. The applicant can also take precautions to minimise any risk of COVID-19 should he return to Peru.   The Tribunal notes current data at the end of June 2021 suggests nearly 9% of citizens in Peru have received their full COVID-19 vaccination, a full vaccination rate in fact higher than Australia at less than 6%. The Tribunal does not consider the COVID-19 pandemic in Peru is a human rights issue that is determinative in not cancelling the applicant’s visa. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
129. The applicant has also submitted that returning the applicant to Peru would cause a great deal of pain and suffering to his family – being the sponsor Ms [B] and her son [Mr C] - and would be in breach of Article 17 and Article 24 of the International Covenant on Civil and Political Rights. The applicant has submitted that avoiding interference with the family or protecting the family can be weighed against other countervailing considerations including the integrity of Australia’s migration system and the national interest. The applicant has submitted that the adverse impact of any departure of the applicant from Australia will be severe, and the sponsor Ms [B] is stressed by the possibility of losing the applicant and, the applicant’s submission states, ‘the plausible disintegration of her family’.
130. The Tribunal disagrees with the applicant’s assertion that cancellation of his visa would be a breach of Articles 17 and 24 of the International Covenant on Civil and Political Rights.

131. The Tribunal does not consider on the evidence before it that cancellation of the applicant’s visa would precipitate a breach of Australia’s international obligations in relation to the ICCPR. The exercise of the Tribunal’s consideration of the discretionary provisions in the cancellation of a Bridging visa A is not bound to mandatory considerations under unenacted international law. The Tribunal is of the view that its consideration of the discretionary provisions represents adherence to the legislation contained in the Act and the Regulations rather than a breach of any of Australia’s international obligations as a signatory to the ICCPR. The Tribunal gives the claim little positive weight.
132. The applicant and Ms [B] have stated that the sponsor will be unable to go to Peru should the applicant be compelled to depart Australia due to her own health challenges. The Tribunal accepts this submission. The Tribunal notes nevertheless that the sponsor is not compelled to depart Australia with the applicant. She is an Australian citizen. Her Australian citizen children are in Australia and reside with her. The Tribunal gives the claim little positive weight.
133. The Tribunal has considered whether cancellation would lead to the person's removal in breach of Australia's international or family unity obligations. On the evidence before it, given no international obligations arise on the evidence before the Tribunal, the Tribunal weighs this factor neither in favour nor against cancelling the visa.
Mandatory legal consequences of a decision to cancel the visa
134. The Tribunal has considered whether there are mandatory legal consequences of cancellation, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
135. The Tribunal notes that the applicant in post-hearing submissions under ‘Human Rights obligations’ raised the s.48 bar and the potential limits the bar may pose to the applicant being able to apply for a further stay in Australia. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. The applicant will also be subject to an s.48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied for, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from the date of cancellation except in certain circumstances. The Tribunal notes nevertheless that should the applicant’s Bridging visa ‘A’ be cancelled, the applicant may be able to apply for a Bridging visa ‘E’ that may allow the applicant to remain in Australia until his Partner visa application is finally resolved. The legal consequences of the cancellation specific to the applicant is that he is likely to be removed to Immigration Detention upon cancellation unless granted another visa - the Bridging visa ‘E’ - that allows him to stay for or pending the resolution of his Partner application.
136. The Tribunal has considered the mandatory legal consequences of a decision to cancel the applicant’s visa and weighs the matter neither in favour nor against cancelling the applicant’s visa.
Consequential cancellations
137. At the hearing the applicant confirmed there will be no consequential cancellations as a result of the cancellation of the applicant’s visa under s.140. The Tribunal weighs this matter neither in favour nor against cancelling the applicant’s visa.
Children
138. The Tribunal has considered if there are children whose interests would be affected by cancellation, or consequential cancellation. The applicant has no children of his own in Australia. The sponsor Ms [B]’s children are adult Australian citizens. There are no children whose interests would be affected by cancellation, or consequential cancellation. The Tribunal weighs this matter neither in favour nor against cancelling the applicant’s visa.
Hardship
139. The Tribunal has considered the degree of hardship that may be caused to the applicant and his claimed family members should his Bridging visa A be cancelled.   Hardship has also been considered earlier in this decision record under the heading ‘Present circumstances of the visa holder’.
140. The applicant has claimed that he will suffer from hardship and will suffer future hardship if the visa cancellation is not set aside. The Tribunal is satisfied that the cancellation of the applicant’s Bridging visa A will impose some hardship upon the applicant and his sponsor Ms [B] and her son.
141. The Tribunal has considered the hardship that might be caused to Ms [B] and her son [Mr C] from a range of perspectives including financial and emotional. The Tribunal accepts there will be a degree of financial hardship faced by the applicant’s partner should his Bridging visa A be cancelled and if the applicant is either detained or is granted a Bridging visa E without work rights. The Tribunal accepts that there will be a degree of increased financial hardship for Ms [B] should the applicant’s visa remain cancelled and he depart Australia. The Tribunal does not however consider it unreasonable for a couple or an individual to make certain changes to their spending and lifestyle due to circumstances such as those presented in this review.
142. The Tribunal nevertheless notes that Ms [B] has been in gainful employment in the same job for well over a decade. She is clearly highly respected by her employer. The Tribunal notes she was able to maintain a household financially prior to meeting the applicant. She can choose to extend her working hours again if she so chooses, taking into account the evidence that she was due to undergo surgery on [date] June 2021 and would be taking a month off work to recuperate.   Her son, well experienced in the hospitality industry, can also choose to work and make a financial contribution to the household and to fund his own studies. The Tribunal appreciates his desire to study, but notes that for students, both working and studying is a common feature of university life in the contemporary educational environment. The Tribunal furthermore does not accept the claim, as also submitted by Ms [B]’s doctor Dr Islam in correspondence, that her son [Mr C] may be unable to achieve his goals at university in [a specified] field if the applicant’s visa is cancelled and he is unable to continue providing financial support. No evidence has been supplied of any financial support up until the present. The Tribunal considers the applicant can however choose to provide financial support to [Mr C] even if his visa was to be cancelled and he returned to Peru to re-enter the work force.
143. The Tribunal does accept that there will be increased financial hardship on the applicant’s partner and her son should his bridging visa be cancelled. The Tribunal does not consider it, however, to be onerous. The Tribunal also notes that, should the applicant’s Bridging visa A be cancelled, the applicant may be able to apply for a Bridging visa ‘E’ (as an alternative to detention) to remain in Australia for the finalisation of his Partner visa application. If granted the applicant may be able to apply for work rights on the grounds of financial hardship and continue in employment with his current employer. The Tribunal on the evidence before it considers the degree of financial hardship that may be caused to the applicant through the cancellation of his visa to be limited.
144. The Tribunal accepts that there may be an increased degree of emotional hardship to the applicant, Ms [B] and her son [Mr C] should the applicant’s Bridging visa A be cancelled. The Tribunal however notes that the applicant again retains the opportunity to apply for a Bridging visa E that would allow him to remain in the community with Ms [B]. Even if he were to go into immigration detention or depart Australia, the Tribunal notes that he can remain in contact with his family in Australia via the telephone, social media and other modern communication mediums that would allow the parties to continue to provide emotional support to each other.
145.   As discussed previously in this decision record, the Tribunal notes Ms [B]’s previous history of anxiety and depression after the end of her previous married relationship and accepts there will be an increased degree of emotional hardship upon her should the applicant’s visa be cancelled. The Tribunal notes this hardship can be mitigated by the presence of her two adult children, along with access to professional health support as necessary.
146. The Tribunal notes the applicant’s – and his employer’s claims of hardship in relation to his existing employment. The Tribunal accepts the applicant is a very good employee and a valued member of his employer’s team. The Tribunal again notes though that the applicant is not the holder of a business or employment visa. The Tribunal notes that the applicant will also be able to apply for a Bridging visa ‘E’ if his visa is cancelled and apply for work rights, which may allow him to recommence his duties with his employer. The Tribunal recognises the hardship but considers it can potentially be mitigated.
147. The Tribunal has considered all the evidence before it pertaining to the hardship cancellation of the applicant’s visa will have upon the applicant, Ms [B] and her son [Mr C], including the various statutory declarations and statements made to both the delegate and the Tribunal. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia. The Tribunal, however, considers the hardship that will be caused to the applicant and his claimed family in Australia should his visa be cancelled to be limited.   As stated above when considering the degree of hardship that may be caused to the applicant across a range of areas, the Tribunal does however note that should the applicant’s Bridging visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging visa ‘E’ that may allow him to remain in Australia pending the resolution and finalisation of his Partner visa application.
148. In relation to the degree of hardship that may be caused, the Tribunal weights this factor against cancelling the visa.
Public Interest Criterion 4020
149. The Tribunal notes that the applicant in his pre-hearing submissions raised Public Interest Criteria 4020 (PIC 4020) and the decision Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42. In this decision the Court held that to refuse a visa on the basis of PIC 4020 it was necessary to demonstrate that the information or document had the quality of “purposely falsity” whether or not the visa applicant can show that they have knowledge of that fact. The applicant in his submissions stated that he had no knowledge of his representative Mr Campos’ actions and therefore his visa could not be refused on this basis. At the hearing the Tribunal reminded the applicant’s representative that the matter at hand was a visa cancellation, not a refusal, and PIC 4020 was not germane to the matter at hand.
150. The applicant in his pre-hearing submission also raised ‘compelling circumstances affecting the interests of Australia’ in the context of PIC 4020. The applicant submitted the impact on the sponsor Ms [B] and her family represented both compassionate and compelling grounds that affected the interests of an Australian citizen. The applicant stated the compassionate grounds were that the family of Ms [B] would be ‘dismantled’ if the applicant’s visa was to be cancelled as the applicant was the source of emotional and financial support for the sponsor Ms [B] and her son, who are both Australian citizens. The applicant stated that there would be adverse health or welfare issues affecting an Australian citizen, namely the sponsor Ms [B], if the applicant’s visa was to be cancelled. The applicant in his submission also raised the emotional and financial impact on Ms [B]’s son, [Mr C] who would suffer, it is claimed, from no longer having the same ‘financial and emotional support’ of the applicant. The applicant has also claimed ‘compelling circumstances’ – presumably in the context of a waiver of PIC 4020 – due to the fact that the applicant was a ‘victim of a criminal enterprise’ run by his former agent Mr Campos.
151. The Tribunal notes that matters such as the emotional and financial impact of cancellation on Ms [B] and her son have been considered by the Tribunal elsewhere in this decision. The Tribunal notes that PIC 4020 is a matter pertaining to the refusal, not the cancellation of certain visa subclasses. The Tribunal would reasonably expect a representative appearing before the Tribunal to be aware of the very obvious difference and make submissions in accordance with this. The Tribunal nevertheless has considered the matters that were raised in the various considerations listed above.
Conclusion
152. 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.
153. The Tribunal has weighed the considerations. The Tribunal has had regard to the applicant’s submissions, his and his witnesses’ oral testimony and all the prescribed circumstances set out in reg. 2.41.
154. The Tribunal finds that the considerations in favour of cancelling the applicant’s visa outweigh the considerations against cancelling. The Tribunal accepts there will be a degree of emotional and financial hardship for the applicant and, in particular, his partner Ms [B] and her son. The Tribunal has had regard to his claims as to the hardship he, Ms [B] and her son will face should his visa be cancelled. The Tribunal has also given weight to Ms [B]’s emotional state and the impact the cancellation of the applicant’s visa may have upon her. The Tribunal also acknowledges the applicant is a hard-working, valued and industrious employee.
155. The Tribunal however considers these factors were outweighed by the other considerations, in particular the seriousness of the applicant’s breach of Australia’s migration law in providing substantial incorrect information and bogus documentation as part of his visa application. The Tribunal notes that the applicant continues to deny any knowledge that his agent was submitting incorrect information and bogus documentation, despite the fact he concedes he travelled to Australia with the full knowledge the visa had been granted on the basis of falsities. The Tribunal considers the non-compliance of the applicant to be significant, and ultimately the Tribunal does not accept the applicant’s attempted explanations for the non-compliance, as outlined in this decision. The Tribunal also notes the evidence that suggests the applicant’s application may be part of broader illegal activity in Peru to acquire Australian visas through the utilisation of incorrect information and bogus documentation.
156. The Tribunal does take into account the hardship that will be caused to the applicant, Ms [B] and her son in cancelling the applicant’s visa. The Tribunal has particular sympathy for Ms [B]. This hardship however is outweighed, in the Tribunal’s opinion, by the seriousness of the applicant’s breach of Australia’s migration laws through the provision of false information and bogus documentation as part of his visa application.
157. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
158. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Justin Owen
Senior Member

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

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

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 3433

5 July 2021

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