1517867 (Migration)

[2016] AATA 4089

1517867 (Migration) [2016] AATA 4089 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Harpreet Kaur

CASE NUMBER:  1517867

DIBP REFERENCE(S):  BCC2014/2687711

MEMBER:Lisa Lo Piccolo

DATE:12 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 885 (Skilled - Independent) visa.

Statement made on 12 July 2016 at 3:06pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 885 (Skilled - Independent) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 and 103 of the Act.  The delegate was of the view that the applicant provided incorrect information and a bogus document in her application.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Ekam Singh Kalas. 

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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.

3. 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?

1. 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 and s.103 in the following respects:

   a.On 7 June 2012, Ms Kaur applied for a Subclass 885 Independent skilled visa.  On that application she indicated that she had undertaken an English test on 12 May 2012 and her language ability was assessed as ‘proficient’.

   b.IDP Education Ltd notified the Department that the applicant’s IELTS test results were cancelled as it was determined that another person sat the test in her place.

   c.The applicant did not comply with s.101 because she deliberately provided incorrect information that she had sat an IELTS test and was assessed as proficient, when in fact she herself had not sat the test.

   d.The applicant did not comply with s.103 because she provided a bogus document in her application, being results from IELTS test reference 12IN010059TH855A dated 12 May 2012 which she did not sit.

2. The evidence supporting the alleged non-compliance in this application is limited.  According to the Department’s file, IDP Education Ltd sent it an email dated

   
   

   17 September 2012 stating that it had cancelled the IELTS results for the applicant (D.f.6).  The email provided no reasons for the cancellation and no evidence to support the decision to cancel.  There is no documentation before the Tribunal to indicate that the Department was aware of this correspondence prior to 7 October 2014.  The applicant had applied for citizenship and a Department officer in the Citizenship team in South Australia was alerted to the fact that the IELTS results had been cancelled and queried whether this affected the applicant’s permanent residency (D.f.1). 

3. On 10 October 2014, the National Allegation Assessment Team SA sent an email to IDP Education Ltd seeking information as to why the test results had been cancelled including whether fingerprints were taken when the applicant sat the test, and whether the applicant had been given an opportunity to respond to the finding against her and to provide evidence (D.f.6). 

4. On 13 October 2014, Marcia Caswell from IDP Education told the Department that the test results were cancelled as it was determined that another person sat the test in her place (D.f.7). 

5. On 20 August 2015, a Notice of Intention to consider cancellation under s.109 of the Act was sent to the applicant (D.f.9-16).  By letter dated 27 August 2015, the applicant vehemently denied the allegation that she did not sit the test.  She said that fingerprints were taken and requested that the Department compare her fingerprints.  She also said that the Department could check her handwriting because it was her who sat both tests.  She also provided copies of her passport which she says evidences that she travelled to India from Australia and was in India at the time she sat the test on 12 May 2012. She also referred to the period of time that has passed since she sat the test and the fact that her test had expired prior to this assertion being made.

6. According to the Department’s file, on 3 September 2015 the Department made further enquiries regarding the reasons why it was determined that someone else sat the test and whether there was any supporting evidence (D.f.22).  On 16 September 2015, IDP Education Ltd indicated that the applicant’s voice recording and handwriting taken on 12 May 2012 are different from those taken on 10 March 2012 (D.f.23).   IDP Education indicated that the Quality and Compliance team retain copies of these documents and recordings.  She stated that the IELTS Identity Authentication Management system does not retain copies of a person’s fingerprints as all fingerprints are converted into a binary large object and are unable to be converted to fingerprints.  She also stated that she had written to the applicant on 22 June 2012 regarding this issue but the applicant had failed to respond.  No evidence of the investigation was provided to the Department including evidence of the handwriting or the voice recording comparisons, the test results from 10 March 2012 or the 22 June 2012 letter.   Based on the evidence before the Tribunal, the Department never requested copies of any of documents relating to the investigation.

7. The applicant wrote to IDP Education on 4 April 2016 seeking further information regarding cancellation of her test results.  In particular, she sought a copy of the letter dated 22 June 2012 which IDP told the Department it had sent to her regarding the test discrepancies.  She also asked IDP to explain how someone else could sit her test given that she was required to undergo strict identification processes including having her fingerprints taken at the inside entrance of the examination hall to her designated seat.  She also queried who had analysed the handwriting and voice recordings, and why the fingerprints had been erased contrary to law (T.f.62-63).

8. By letter dated 10 June 2016 and submitted to the Tribunal, IDP: IELTS Australia informed the applicant that malpractice was suspected and her test results were cancelled.  IDP also indicated that the finger scan data is not on a unified database and is not collected as a fingerprint image.  IDP otherwise denied all of the allegations in the applicant’s letter stating that they are made without foundation (T.f.55).

9. The Tribunal sought verification of the test results including a copy of the test undertaken on 10 March 2012.  IDP Education was unable to verify the results and informed the Tribunal that the name and date of birth are insufficient information to search for a particular test report form particularly since the applicant’s name is very common in India.  The Tribunal was also informed that the records are only retained for three years, and prior to 2015, they were only kept for two years.  The applicant also made enquiries with IDP to obtain a copy of her results, but she too was informed that records are only kept for three years.

10. At the hearing, the applicant gave evidence that she sat both tests.  She said that she sat the first test in South Australia on 10 March 2012, and the second test she sat in Jaipur in India on 12 May 2012.  She said that she had also sat another test in February 2011 in relation to her subclass 485 application.  Movement records held by the Department support that she departed Australia on 1 May 2012 and returned on 31 May 2012.  She gave evidence that she travelled to India via Malaysia to visit family.  She told the Tribunal that she personally sat both tests and described the security measures she was required to undergo when she sat both tests.  She said that she was required to have her photograph taken and to provide her passport and her fingerprints on both occasions.  She said that she was escorted to the seat where these things were checked again before she sat the test.  The applicant said that IDP must have made some mistake in comparing test results because she sat both tests.  She said that she has never received any correspondence from IDP regarding her 12 May 2012 test results and emphasised her concern that IDP has not provided any proper response to her enquiries and has not been able to produce any of the material upon which it based its decision to cancel her test results.  She also expressed concern that the Department had delayed in investigating this matter and did not seek to consider any of the things it was told by IDP.

11. The Delegate indicated in her decision that she placed “more weight” on the information received by IDP Education Pty Ltd given that it had provided the applicant with the opportunity to submit information in relation to the test but failed to respond to the letter.  However, aside from IDP’s own assertion, there is no evidence to verify that the letter dated 22 June 2012 was sent to the applicant.  The applicant and her husband gave frank and credible evidence regarding the fact that they did not receive any letter from IDP.  The applicant told the Tribunal that she kept her address details up to date with the Department at all times including when she moved from South Australia to Western Australia.  This is supported by records held by the Department.  She said there was no requirement to keep IDP informed.  She told the Tribunal that they did move from South Australia to Western Australia in 2012 but that was after her second IELTS test.

12. Having considered all of the oral and documentary evidence, it is clear that the only evidence before the Tribunal regarding this alleged non-compliance is an email from IDP to the Department.  There is no documentary evidence to indicate that the applicant was in fact given an opportunity to respond to this allegation in June 2012.  IDP have refused to furnish a copy of the said letter to the applicant, or to provide details of the date the letter was sent, the address it was sent to or the transmission method by which it was sent.  Accordingly, in view of the evidence before it, the Tribunal is not satisfied that the applicant received the letter dated 22 June 2012. 

13. In circumstances where the Tribunal has not been provided with a contemporaneous report of the investigation including who undertook the handwriting analysis and voice recording comparison, has not been provided with a copy of the 22 June 2012 letter which would include details of where the letter was sent and was not provided with a copy of the 10 March 2012 test report form, the only evidence from IDP regarding its investigation and decision to cancel the applicant’s test results, is contained in a series of emails created more than 2 years after the investigation took place.  None of the documents connected to the investigation are available for analysis since they have either been destroyed or cannot be accessed due to their electronic storage method.  

14. The Tribunal is concerned by the lack of details pertaining to the investigation and the fact that IDP have not been prepared to provide the applicant with further information regarding her enquiries.   The Tribunal is also concerned that documents pertaining to an investigation which could result in cancellation of an applicant’s test results and ultimately a visa, are not retained. 

15. The Tribunal accepts the applicant’s evidence that she was required to provide her fingerprints at both tests prior to entering the test area and places some weight on the absence of any comparative fingerprint data.  IDP itself concedes that Harpreet Kaur is a common name and since the test was undertaken in India the Tribunal cannot rule out that there was an administrative error.  Further, if the applicant had received the letter and was aware that her IELTS test results had been cancelled, it seems improbable that she would have applied for citizenship knowing that she had not received any contact from the Department and that this application may alert the Department to this fact.

16. On the available evidence, the Tribunal is not satisfied on that the voice recording and handwriting that IDP compared both belonged to the applicant.  The Tribunal is satisfied on the available evidence that she did sit the IELTS test on 12 May 2012.  There is no evidence before it to establish that she did not sit the earlier test on 10 March 2012.

17. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice.  It follows that the discretionary power to cancel the applicant’s visa does not arise. 

18. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 885 (Skilled - Independent) visa.

Lisa Lo Piccolo
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

1. Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

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

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

2. Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

1. Completion of visa application

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

2. Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

3. Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

4. Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

5. Bogus documents not to be given etc.

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

   * 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).

6. Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)      giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (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.