1612485 (Migration)

1612485 (Migration) [2019] AATA 1778 (26 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1612485
MEMBER:Alison Mercer
DATE:26 January 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s subclass 176 (Skilled - Sponsored) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 26 January 2019 at 5:20pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Migrant) (Class VE) – Subclass 176 (Skilled-Sponsored) – allegation of applicant submitting fraudulent documents – police clearance check – inadvertent errors by issuing authority – no non-compliance by applicant – no jurisdiction with respect to other applicant – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 97, 103, 109, 140, 362A, 363(1)(d)
Migration Regulations 1994 (Cth), r 2.41

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 Immigration to cancel the first named applicant’s subclass 176 (Skilled - Sponsored) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had provided a bogus document in connection with her subclass 176 visa application made in 2011, which was a breach of s.103 and thus made her visa liable to cancellation pursuant to s.109(1). The document found to be bogus was an Iranian police clearance dated [September] 2013, which the applicant provided to the Department on 16 September 2013.
The Tribunal received a review application from the applicants on 10 August 2016. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent [to] be their representative and authorised recipient for correspondence.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The matter was constituted to a Tribunal Member on 30 November 2016. It was reconstituted to another Tribunal Member on 18 January 2018 after the original Member became unavailable to complete the review.
On 9 March 2018, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 24 April 2018.
On 9 April 2018, the Tribunal was notified that the applicants had appointed a new registered migration agent [who] advised that he and the applicants wished to have physical access to the overseas police clearance which the Department had found to be bogus. He was advised to lodge a request for access to documents pursuant to s.362A of the Act and did so on the same date. On 11 April 2018, he withdrew this request after being advised that the Tribunal did not have the original police6 clearance but only a certified copy of it.
On 17 April 2018, the applicants’ agent requested an adjournment of the hearing on 24 April 2018 to a later date, given that he had only been recently instructed to act and was having difficulty obtaining information and documents from the applicants’ previous agent.
On 19 April 2018, the Tribunal wrote to the applicants via their agent to advise that the hearing had been rescheduled to 24 May 2018. They were requested to provide any written submissions and/or documents in support of the case 1 week prior to the hearing.
On 21 May 2018, the Tribunal received submissions with support documentation from the applicant’s agent.
The applicants appeared before the Tribunal on 24 May 2018 to give evidence and present arguments. The Tribunal also received oral legal submissions from the applicants’ agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
On 28 May 2018, the Tribunal forwarded the applicant’s Iranian police clearance to the Department’s Document Examination Unit (DEU) pursuant to s.363(1)(d) of the Act for an opinion as to whether it was a genuine document. The Tribunal received a DEU report on 13 June 2018.
On 28 May 2018, the Tribunal also wrote to the Department to ask it to verify the authenticity and validity of a police clearance certificate issued to the applicant by the ‘Islamic Republic of Iran Police Interpol Tehran’ [in] October 2016 with INTERPOL office in Tehran. After a number of follow up requests, the Tribunal received a response from the Department on 19 December 2018.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

Given the complexity of this matter, the Tribunal consider it appropriate to set out the history of it in some detail.

Departmental history

The Department’s records indicate that the applicant and her husband were granted subclass 176 visas on 20 November 2013, and that they first arrived in Australia [in] December 2013.
On 17 August 2014, the Department received information from an unidentified source indicating that a cousin of the applicant had submitted fraudulent documents about his qualifications and work experience [in an occupation] and that the applicant’s brother was in the process of transferring all of his family members to Australia using fraudulent documents. It is alleged that the applicant had already submitted fraudulent documents to the Department, as well as her cousin. As a result, the applicant’s Iranian police clearance was referred to the overseas post in Iran for verification, as it was noted that the stamp on the certificate, which should partially cover the photo, did not appear to continue on the photo (that is, it cut off where the photo began). The scanned original and translation were referred on 16 March 2016.
On 27 March 2016, a local officer at the Australian Embassy in Tehran provided a copy of a genuine police certificate issued by the same authorities recently as a sample. It is stated that ‘as there is no way we can verify this PC [police certificate] with the issuing authorities, we ask you to kindly request [the applicant] to provide another [police certificate] from Esfahan for further comparison. The [police certificate] for this [applicant] is unacceptable.’
A Departmental email of 23 May 2016 records that Brisbane Compliance has the following concerns:
·     an allegation had been made against the applicant and they were currently receiving a number of allegations of a similar nature against the clients in Esfahan;
·     the stamp that should partially cover the photo in the original appears to end before the beginning of the edges of the photograph, suggesting that the photo may have been added on top of the stamp;
·     the full family name of the applicant was not given in the police clearance and this was unusual. They had not to date come across any such official documents, especially a police clearance, in which the full family name of the applicant was not given;
·     the date at the right hand of the police certificate in Farsi seemed to have been manipulated. The mm/dd of the date was a stamped date and half of the yy seemed to have been written by hand. This too was irregular. Also, the Farsi word for Esfahan had been written ‘Sefahan’ in 2 parts of the certificate;
·     there were normally 2 green stamps in the top right hand side of police certificates that showed the cost of the document. There was slanted Farsi writing on each stamp reading ‘cancelled.’ The cost shown on the stamps was a total of IRR 100,000 but the police certificate for the applicant had only 1 stamp showing the cost of IRR 50,000;
·     the Australian High Commission in Iran cannot contact the police or the Ministry of Justice (the issuing authorities for the police clearance), but did check police clearances issued by Interpol with Interpol itself; and
·     the applicant should be asked to provide another police certificate.
On 27 June 2016, the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant indicating that cancellation of her subclass 176 visa was being considered under s.109 of the Act. It was stated that it was considered that the applicant had not complied with s.103, which required that a non-citizen not to give, present, produce or provide a bogus document, or cause it to be so given, presented, produced or provided. The letter outlined the definition of a bogus document contained in s.5(1) of the Act, being one 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 the authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly…

The letter advised that if the applicant failed to comply with s.103, her visa might be cancelled. It is further stated that the information before the Department indicates that the applicant provided a non-genuine document to the Department as part of her visa application on 16 September 2013. The letter set out the concerns identified above by the Brisbane Compliance email and concluded the police certificate was a bogus document. The applicant was invited to respond to this before a final decision about whether to cancel her visa was made. It was noted that her response should also address the following matters set out in r.2.41, which would also be considered by the delegate:
·     the correct information;
·     the content of the genuine document (if any);
·     the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that had elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches; and
·     any contribution made by the visa holder to the community.
On 18 July 2016, the applicant appointed a registered migration agent [and] made a response in which she asserted that the original police clearance she provided was not false. She stated that she had asked her parents in Iran to mail the original to her and she would provide it to the Department. In the meantime, the applicant stated that the stamp was on the photo, if the document was looked at carefully on the original document, which was clearer. She confirmed that her full family name was ‘[Applicant 1 surname]’ and she had provided her birth certificate and Iranian ID with this full surname to obtain the police check, so could only assume it was human error that her full surname was not in the police check. She asserted that in Iranian culture, the second part of the family name was not very important and most of the time, it was not written. In relation to the date on the right hand side, the applicant said that if one looked closely at the original document it was clear that there was just a stamp and no handwriting. Also the stamp could be compared with the state stamp on the bottom of the document, and they were both the same. In relation to ‘Sefahan’ being written in Farsi on the certificate, the applicant said that this was related to hand writing style, so 2 letters (‘A’ and ‘S’) were combined together. She stated that she would send the original document to a NAATI translator in Australia and would provide the result. She further stated that she was not sure how many stamps should normally be on a police certificate but both hers and her husband had the same single stamp so she assumed it was normal. In conclusion, the applicant stated that she had been fingerprinted by the [State] police and sent these and the required documents to Iran to obtain another police clearance and would provide evidence of this as soon as possible.
The applicant’s agent submitted that based on the above, the NOICC ought to be withdrawn.
On 3 August 2018, the delegate made a decision to cancel the applicant’s subclass 176 visa pursuant to s.109 of the Act on the grounds that she had breached s.103 of the Act by providing an Iranian police clearance that was a bogus document. The delegate noted the concerns identified by the Department about the applicant’s Iranian police clearance dated [September] 2013 and concluded that the Department could not be satisfied that the police clearance was authentic and as a result, it appeared that the applicant had provided a false police clearance in support of her subclass 176 visa application. The delegate stated that she considered that the applicant had not complied with s.103 as she had provided a bogus document (as defined in s.5(1)(a)).
The delegate then considered the mandatory factors set out in r.2.41 of the Act. She placed no weight on r.2.41(a) (the correct information) in view of the lack of clarity (such as a more recent police check without the same discrepancies for the applicant). The delegate reached the same conclusion in relation to r.2.41(b) (the content of the genuine document (if any)). In relation to r.2.41(c) (whether the decision to grant the visa was based wholly or partly on incorrect information or a bogus document), the delegate acknowledged that the applicant was sponsored on the basis of her nomination [in an occupation] for an Australian company for whom her brother [Mr A] also worked. However, the delegate considered that the visa was granted on the Iranian police check the applicant provided, although the delegate accepted that less emphasis may have been afforded in that regard due to her visa application falling within the streamlined visa processing arrangements. In any case, the delegate found that the seriousness of the non-compliance outweighed this fact. In relation to r.2.41(d) (the circumstances in which the non-compliance occurred), the delegate noted the applicant’s assertion that her police certificate was genuine, but placed greater weight on the information provided by the overseas post, suggesting that the irregularities in the certificate indicated that it was non-genuine. In relation to the applicant’s present circumstances (r.2.41(e)), the delegate noted that the applicant’s subclass 176 visa would have been valid until 20 November 2019 if not cancelled. The delegate stated that she had not been provided with information about the applicant’s present circumstances but accepted that a cancellation would result in the consequential cancellation of the applicant’s husband’s visa as well as limiting the applicant’s onshore visa options and subjecting her to an exclusion period for a certain period. The delegate gave this factor some weight. The delegate gave some weight to the factors in r.2.41(f) (her subsequent behaviour) and r.2.41(g) and (j) (any other instances of non-compliance) and that approximately 5 years had elapsed since the non-compliance (r.2.41(h)). She gave no weight to r.2.41(k) (any contribution made by the applicant to the community) as she stated no evidence of this had been provided. The delegate noted that the circumstances of the case were not such that would engage Australia’s international obligations, and that after careful consideration, she had decided that there was a ground for cancellation, and to cancel the applicant’s visa.

Tribunal history

On 21 May 2018, the Tribunal received submissions with support documentation from the applicant’s agent. In summary, the applicants’ agent made the following points:

the applicant held a subclass 176 visa which was granted until 20 November 2018;
however, due to a dob-in to the Department by an unidentified person, the Department issued a Notice of Intention to Consider Cancellation (NOICC) to the applicant on the basis of allegations that the applicant had provided incorrect information and bogus documents in support of her permanent residency visa;
the informant also referred to the applicant’s [relatives] who had come to Australia as visitors and then applied for asylum (the applicant’s [specific relatives]);
the applicant believed, from the settings and wordings surrounding the dob-in message, that the person who raised these allegations was a disgruntled remote family member who had developed a feud with the applicant’s family and had previously tried to blackmail them. When he was disregarded, he made the allegations above;
in the legislative scheme set out in ss.97 103, 107 and 109, the burden of proof was upon the applicant to show that she did not breach s.103. It was submitted that there was substantial proof to show that in fact no breach had been committed;
it was submitted that there was insufficient proof to show that s.97 was met (which defined a ‘bogus document) in relation to the Iranian police clearance, and that the delegate ignored evidence or was not satisfied by it and had failed to consider the r.2.41 factors properly. In particular, the delegate appeared not to have assessed r.2.41(a) properly as he failed to consider the fact that the applicant had provided several subsequent penal clearances and also failed to consider the supporting official letters by the relevant issuing authority which clearly outlined that an administrative error had occurred. He appeared to have ignored further evidence without considering the correct information as required by r.2.41(a);
it was submitted that the applicant had always been of good character;
under r.2.41(c), the delegate should have had regard to the fact that the penal clearance in question was not material to the decision-making process (although it was acknowledged that failure to pass the character test could result in refusal of a visa), because sufficient evidence existed along the way to prove the applicant was of good character, had the delegate taken this into account;
it was submitted that the original decision maker who granted the applicant a subclass 176 visa had clearly formed that view, as he or she granted the visa despite the irregularities identified in the applicant’s Iranian police clearance;
the delegate also failed to have adequate regard to the applicant’s current circumstances and did not ask whether the cancellation of her visa would serve any meaningful purpose. If the applicant were able to produce, at a later stage, evidence that clearly established that she was of good character and always had been, then her current circumstances were no different from those when she made her visa application;
the delegate failed to have sufficient regard to r.2.41(d), being the behaviour and character of the applicant during her stay in Australia. It was submitted that she and her husband were law abiding citizens who had each set up their own businesses: the applicant ran [Business 1], which dealt with [goods], while her husband ran [another business] which currently employed an Australian permanent resident. Since their arrival in Australia in 2014, they had employed 8 Australians in their businesses over different time periods;
this had significant weight but was omitted in its entirety by the delegate;
the pivotal questions the Tribunal should ask were (a) whether a bogus document was provided at all, regardless of who produced the document; and (b) if the visa cancellation should in fact be upheld where the main issue seemed to be that part of the applicant’s surname was missing from the original penal clearance, yet she was granted a visa anyway. It was submitted that the visa should have been refused by the first delegate if this anomaly was so significant;

the Tribunal’s attention was drawn to the conditions applicable to obtaining an Iranian police clearance. It was noted that the applicant began her migration plans in 2011 while employed fulltime. Under Iranian labour laws, fulltime employment mean 44 hours per week, Saturday to Thursday, 8 hours a day, excluding lunch, breaks and prayer times;
in anticipation of migrating, the applicant undertook intensive after-hours English lessons so that she could meet the English requirements for the visa she planned to apply for. This was a stressful period and the applicant was preoccupied with her plans. The whole process was highly stressful for the applicant and her husband. It was submitted that it was not uncommon for official documents to contain misspellings, typos and other administrative errors that went unnoticed, and in this case, the applicant was dealing with many documents and simply failed to notice that the second part of her surname was missing from her police clearance;
typically, translators require the passport of their clients to ensure that when translating names, the spelling matched the passport spelling. In this instance, the applicant had provided a copy of her passport to the translator but the translator apparently overlooked the missing section of the applicant’s surname as well;
the applicant recalled that she had to go in person to the judiciary office in Ishfahan, her home town, to obtain the clearance. She had to stand in line in a confined area and wait for her name to be called. She then had to hand over her birth certificate and stand before the court secretary to verbally confirm her details. The secretary then completed the application form on her behalf by writing down the applicant’s details in ink. The applicant further recalled that it was a hot day and the room was crowded with people and the officials appeared overworked. She speculated that the secretary did not record her full name by accident due to these conditions, as he was recording information very quickly by hand;
subsequently, the applicant received the penal clearance by mail, along with many other documents. Knowing that she did not have a criminal record, she simply forwarded the penal clearance on to the translator, failing to notice that part of her name had been omitted. She simply overlooked this on both the original and the translation. Moreover, she was under the impression that since the translator had asked for her passport, he would have identified any discrepancy in her surname, but unfortunately, he simply translated the penal certificate as it was without clarifying the applicant’s correct name or advising her that part of it was missing;
while the applicant agreed that she had provided to the Department a document which essentially did not contain the complete version of her name, she did not do so deliberately or with any intention to mislead the Department;
it was submitted that the presence or absence of the second part of her surname on the penal clearance had no material value to the essence of this visa subclass. The purpose of the skilled migration program was to evaluate whether a visa applicant held technical expertise or had a profession that was in shortage in Australia, although a visa applicant also had to be of good character;
at the time the applicant was granted her subclass 176 visa, she was determined to have the required skills to transfer to Australia and to be of good character (notwithstanding the omission of the second part of her name from the penal clearance). The delegate who granted her the visa either failed to notice the omitted part of her name on the penal clearance or decided to give the applicant ‘the benefit of the doubt’ to grant her the visa;
based on the correspondence surrounding the cancellation procedure, it was assumed that the fist delegate may have noticed the omission but, given the quality of the rest of the documents, decided to grant the visa anyway. However, after the dob in information was received, that benefit of the doubt was retracted, and the Department formed the view that the applicant had provided a bogus document;
the cancellation delegate formally gave the applicant natural justice via the NOICC but appeared to have already made up his mind that the applicant was not of good character. Even when the applicant provided an official letter from the issuing authority of the penal clearance admitting that it had made an administrative error, and a new penal clearance, this was not given sufficient weight by the delegate;
furthermore, the applicant obtained a police clearance facilitated by Interpol on 14 October 2016, and it was submitted that this should be given even greater weight than the one issued by the Iranian Department of Justice, yet it was given little weight by the delegate;
in response to the delegate’s inquiries, the Australian Embassy in Iran advised that they were unable to contact the relevant authorities in Iran to determine the validity of the document in question; however, they made an unfavourable assumption that it was a bogus document solely on the basis that the applicant’s clearance did not look like other similar clearances in their possession;
it was submitted that, absent an analysis by the Document Examination Unit, this was a dangerous assumption, as not all documents issued by the same issuing authority were uniform. Even though following Departmental policy was not mandatory, Departmental procedure in fact recommended that when the authenticity of a document was in doubt, the DEU should be consulted. Had this been done at the time, it was submitted that this whole situation could have been avoided;
the fact that the applicant supplied further penal clearances in 2016 should be taken to confirm that the applicant did not, and never had had, a criminal record in her country of origin (or elsewhere), especially since one of these clearances was issued by an international body, Interpol; and
the applicant was more than willing to have the original clearance (and any of the subsequent ones) submitted to forensic examination by a qualified document examiner.

The supporting documents provided included:

a contract of sale between the applicant and vendor for a property in [City 1] dated [June] 2016;
copy of letter issued by the Isfahan Justice Department, translated into English, dated [August] 2016, stating the original certificate of clean record for the applicant (no.[number deleted], dated [September] 2013) was authentic, but it should be noted that her surname in this certificate was omitted and the place of issue of her birth certificate was incorrectly listed as Sfahan by mistake but was in fact Isfahan. It was therefore noted that her correct surname was [Applicant 1 surname] and her correct birth certificate issuing place was Isfahan;
PAM3 extracts on Bogus Documents and Cancellation or Refusal to Grant Visas;
police certificate for the applicant, in English, issued by ‘Islamic Republic of Iran Police Interpol Tehran’ [in] October 2016, showing no criminal records listed under the applicant’s name;
English translation of police certificate for the applicant, in English, issued by ‘Justice Administration of the Islamic Republic of Iran, Esfahan Justice Department’ [in] August 2016, certifying the applicant ([Applicant 1 full name]), birth certificate issued in Isfahan, has a clear record;
police clearance in Farsi for the applicant, date illegible;
English translation of certificate of clean record issued in relation to the applicant (listed as [Applicant 1]), issued by the Isfahan Department of Justice [in] September 2013; and
what appears to be untranslated police certificate issued in respect of the applicant’s husband.

Hearing of 24 May 2018

The applicant told the Tribunal that she applied for the subclass 176 visa after being encouraged by her brother [Mr A] to do so. Her brother had become an Australian permanent resident after coming to Australia originally as a working holiday visa holder. The applicant said that she was confident that she met the requirements for the skilled visa as she had a certificate in [a profession], work experience in that field in Iran, and had the sponsorship of her brother, an Australian permanent resident. She and her husband were granted their subclass 176 visas on 20 November 2013.
In response to the Tribunal’s query, the applicant said that before being granted the visas, she received a request from the Department for her to provide Iranian police clearances for herself and her husband. The applicant said that the nearest place for her to obtain these was the Esfahan Department of Justice and that applicants had to go in person to the Department. Men and women had to queue separately to apply. After showing identity documents, applicants had to line up and were then called up to be fingerprinted and provide required documents, such as their passports, national identity card and/or passport photographs. The applicant said that it was very busy and crowded when she attended. The results were sent to her about 10 to 14 days after she attended, and she then took the police clearance to a translator to have it translated into English, then she submitted it to the Department.
The applicant said that she is known as ‘[Applicant 1]’ in Iran, and the staff at the Department of Justice called her up under that name, not her full name ([Applicant 1 full name]). The applicant said that she did not notice that her surname [information deleted] was missing from the police certificate, and simply gave it, together with other documents that required translation into English, to the translator as soon as she could.
The applicant said that she believed that the fee to obtain a police clearance had increased each year; that is, that when she first applied, only 1 stamp was required but by the time her mother applied some time later, 3 stamps were required. In response to the Tribunal’s query, the applicant said that when the translator had finished translating the police clearance, he sent it back to the Department of Justice to have an official seal placed on it. The applicant said that she had her original police clearance and English translation because what she submitted to the Department were (at the Department’s request) scanned copies of the documents. She retained the originals but left them with her parents when she and her husband migrated to Australia.
The applicant said that when the Department raised concerns about the authenticity of the Iranian police clearance she provided, her parents went back to the Department of Justice in Esfahan and provided them with the original documents, and the Department of Justice issued the correction letter to the applicant’s mother, who in turn sent it to the applicant for her to provide to the Department. The applicant said that she was sure that the original police clearance issued to her by the Department of Justice was genuine, and that any irregularity in it identified by the Department was an inadvertent mistake, administrative error and/or typographical error.
The applicant addressed the issue of the allegations made to the Department about her and family members submitting fraudulent documents to the Department to secure Australian residency. The applicant said she could only guess but she believed that the source of these allegations was likely to be an old friend of her cousin who was not able to migrate to Australia, and was therefore disgruntled and wanted to cause trouble for the applicant’s cousin’s whole family.
In response to the Tribunal’s query, the applicant said that when she arrived in Australia, she did work for [Company 1], a company owned by [Mr B]. [Mr B] had outsourced work to her in Iran prior to her migrating to Australia. The applicant estimated that she worked for [Company 1] for about 2 months but was unable to continue there as the company did not have the budget to employ her on an ongoing basis. She said that she believed that [Mr B] was now in [another country].
After a short hearing break, the Tribunal went through with the applicant the records of contact it had for her and her agent with the Tribunal, noting that on 9 April 2018, the applicant’s current agent requested that the Tribunal provide the applicant’s original Iranian police clearance to him; that on 11 April 2018, he was advised that the Tribunal did not hold the original document (and had never done so); that on 12 April 2018, the applicant attended the Tribunal office to query whether the Tribunal had her original Iranian Police clearance, as her former agent had told her that he had provided it to the Tribunal. The Tribunal noted that these queries were difficult to reconcile with the applicant’s evidence at hearing that she had left her original Iranian police clearance with her parents when she migrated to Australia.
The applicant said that when her visa was cancelled, she consulted her former agent, and gave him all her original documents. She believed that he had lodged them with the Department and/or Tribunal. The applicant said that the last time she saw her former agent, he told her that it was 99% certain that her visa would be cancelled. He tried to charge her to see someone else. The applicant said that she was very concerned at this. Her husband had met [the migration agent] in the meantime, and introduced him to the applicant, and they decided to have him take over their case. The applicant said that she told [the agent] that she believed that the original agent would have given the original documents she provided to him to the Tribunal but it was only when she paid her outstanding bill to him on 15 April 2018 that he provided her documents to her.
In response to the Tribunal’s query about her situation in Australia, the applicant said that when she and her husband first arrived, she applied for [jobs] but had no success as she had no Australian work experience. The applicant said that her husband was [trained in a specific industry]. They decided to establish their own business [in a specific industry] and then they branched out into [another area]. Their business had grown and they had employed 8 Australians over the years it had been operating. At the moment, they employed 1 other Australian employee besides themselves. The applicant said that more recently, she and her husband decided to import [goods] from [another country]. This part of their business is called [Business 1]. They have an office and a warehouse and sell [goods to others]. They also have 3 [locations]. The applicant said that they initially worked 7 days per week in the business, but now worked 6 days per week.
The applicant told the Tribunal that she and her husband bought their house in [City 1] about 2 years ago, before they received the NOICC. They are continuing to pay the mortgage. The applicant said that her brother, who sponsored them, is now an Australian citizen. He and his wife have a [age] year old daughter. She said that she and her husband saw her brother and his family frequently and that they were close. The applicant said that she and her husband also have close friends in Australia who are like family. She and her husband have 2 dogs but they have deferred starting a family due to their unresolved visa status. The applicant confirmed that her sister also migrated to Australia. She was sponsored by her spouse and lives in Sydney with him and their [age] year old daughter. The applicant said that she saw her sister regularly, approximately every 1 to 2 months. She told the Tribunal that their parents have applied for Contributory Parent visas and had liquidated all their assets in Iran in order to do so. They are [retired]. They applied for these visas about 2.5 years ago, and have been told that there is probably another 1.5 years to go before they will be able to be granted the visas. The applicant said that her [other] brother is still in Iran, and his [daughter] is coming to study in Australia.
The applicant and her husband told the Tribunal that around the time that they applied for their Iranian police clearances, the applicant’s husband’s sister and her family were killed in [an] accident. This happened in late March 2013 or early April 2013, and it was a great shock to the applicant’s husband and to her. They speculated that this may have been why they did not notice that the applicant’s second surname of [information deleted] was not included on the original Iranian police certificate issued to her.
The applicant’s husband confirmed his [qualifications] and that he and his wife started their own business in Australia in or about June 2014, after they both struggled to find jobs due to their lack of Australian work experience. He said that the business continued but their plans to expand it were hampered by their uncertain status, which caused them stress but also affected their ability to get business loans or bridging finance, as they were no longer Australian permanent residents. The applicant’s husband confirmed that his family remain in Iran.
At the conclusion of the hearing, the Tribunal discussed with the applicants and their agent its intention to refer the original Iranian police certificate issued to the applicant by the Department of Justice in Esfahan to the Department’s DEU and to Interpol in Tehran for verification. It noted that the timeframe for these referrals was unknown, and that if an adverse response was received, they would be given an opportunity to provide comments or a response before the Tribunal made its decision on the matter.

DEU referral

On 28 May 2018, the Tribunal forwarded the applicant’s Iranian police clearance to the Department’s Document Examination Unit (DEU) pursuant to s.363(1)(d) of the Act for an opinion as to whether it was a genuine document. The Tribunal received a DEU report on 13 June 2018.
The DEU report states that it examined 2 documents:
· Iran Certificate of Clear Penal Records #[number deleted], in the name of [Applicant 1], born in [year], issued [in] September 2013 (translation provided); and
· Iran Judiciary Certification document, dated [August] 2016 in the name [Applicant 1 full name] (translation provided).
The summary outcome is stated to be:
· Document 1 – the examiner’s opinion is that the quality of the security limited the ability to determine whether this was a legitimately manufactured and issued document. The result was inconclusive; and
· Document 2 - the examiner’s opinion is that the quality of the security limited the ability to determine whether this was a legitimately manufactured and issued document. The result was inconclusive.

Interpol referral

On 28 May 2018, the Tribunal wrote to the Department to ask it to verify the authenticity and validity of the attached police clearance certificate for the applicant with the INTERPOL office in Tehran. After a number of follow up requests, the Tribunal received a response from the Department on 19 December 2018.
The Department’s Integrated Client Services Environment (ICSE) records indicate that a Stream 2 Integrity Check was completed and referral finalised on 19 December 2018 and that the result was ‘completed – genuine.’

Legal Issues

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.103 of the Act in the following respects:
·     that the applicant gave, presented, produced or provided to an officer, an authorised system, the Minister or a tribunal performing a function or purpose under this Act, a bogus document (as defined in s.5(1)(a)), or caused such a document to be so given, presented, produced or provided;
·     on 30 June 2011, the applicant lodged a Skilled (Migrant) (Offshore) (VE 176) Sponsored visa application and provided documentation in support of that application;
·     as part of this application, she provided an Offshore Police Check in the name [Applicant 1 full name] ([date of birth], F). The Offshore Police Check, No. [number deleted], was completed [in] September 2013, with an outcome of ‘Certificate of Clean Records of no criminal condemnation records;’
·     based on the information provided, amongst other thing, the applicant was deemed to have met the character requirements and was subsequently granted the visa on 20 November 2013;
·     the information before the Department indicated that she had provided a non-genuine document which she submitted as part of the visa application on 16 September 2013;
·     the Police Clearance was referred to the Australian Post in Tehran for verification of its authenticity but examination of the document had shown the following discrepancies with documents issued by the same authority:
o   the stamp that should partially cover the photo appears to end before the beginning of the edges of the photo. This indicates that the photo may have been added on top of the stamp;
o   the full family name of the applicant is not given in the Police Clearance, which is contrary to how these documents are issued;
o   the date on the right hand side of the Police Clearance in Farsi appears to have been manipulated. The mm/dd of the date is a ‘stamped’ date, and half of the yy seems to have been written in hand. This is irregular. The Farsi word for Esfahan has been written: Sefahan in two parts of the Police Clearance; and
o   on the Police Clearance the applicant provided there is one stamp on the top right hand side showing the cost of IRR 50,000. There are normally two stamps on the top right hand side of Police Clearances that show the costs of the document;
·     based on these findings, the delegate was not satisfied that the Police Clearance is authentic;
·     it was considered that this Certificate was a bogus document within the meaning of s.5(1)(a) of the Act, as it purports to have been, but never was, issued to the applicant; and
·     the delegate therefore considered that the applicant had not complied with s.103 of the Act and her visa was therefore liable for cancellation.
A ‘bogus document’ is defined in s.5(1) of the Act as follows:
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.
The applicant has emphatically denied that the Police Clearance issued [in] September 2013 to her by the Iranian authorities was a bogus document, and maintained that if it contained any discrepancies of the kind identified by the delegate, these were accidental administrative errors made by the Iranian authorities, and did not indicate that the document was not authentic or had been improperly altered or issued to her. In support of her case, she obtained:
·     a further letter dated [August] 2016 from the Islamic Republic of Iran (Esfahan) Justice Department clarifying that the original police certificate issued to the applicant in September 2013 was valid but mistakenly spelt Esfahan as Sefahan, and did not use the applicant’s full surname;
·     another police certificate issued by the Islamic Republic of Iran (Esfahan) Justice Department [in] August 2016 showing no criminal conviction in the applicant’s name; and
·     another police clearance issued by ‘Islamic Republic of Iran Police Interpol Tehran’ [in] October 2016, showing no criminal records listed under the applicant’s name.
She also consented to the Tribunal forwarding the original Tehran Interpol document of [October] 2016 to the Interpol office in Tehran for verification.
In response to the Tribunal’s request to the Department to refer this document to the Tehran Interpol office for verification, the Department’s response was to provide its Integrated Client Services Environment (ICSE) records indicating that a Stream 2 Integrity Check was completed and referral finalised on 19 December 2018 and that the result was ‘completed – genuine.’ The Tribunal infers from this that the Tehran Interpol office has confirmed that the document issued in its name in relation to the applicant [in] October 2016 is genuine.
The Tribunal notes that the Department’s DEU report of 13 June 2018 about the applicant’s Iran Certificate of Clear Penal Records issued [in] September 2013 (translation provided) and her Iran Judiciary Certification document, dated [August] 2016, is more ambivalent. The DEU examiner states that due to the quality of the security, he had limited ability to determine whether the documents are genuine or not and records his conclusion in relation to each document as ‘inconclusive.’ It is not clear to the Tribunal what is meant by the ‘quality of security’ in relation to these documents, but ultimately, it accepts that the DEU examiner has not been able to definitively determine whether these documents are genuine or not.
The Tribunal further notes that there are obstacles to such a task, in that it is accepted by the Department that it cannot approach the Iranian government directly to check whether a police clearance purportedly issued by its Judiciary to a person is authentic or not, presumably as this would risk the person in question coming to the attention of the Government and being suspected of applying to migrate. The Tribunal accepts that there are good reasons for the Department’s policy but notes that the inability to do so makes it difficult to obtain definitive corroboration of whether an Iranian police check is authentic or not, or if genuinely issued, whether it has been altered improperly.
Given these issues, the Tribunal gives significant weight in this case to the Department information indicating that the Tehran Interpol office has now confirmed that the October 2016 Interpol Police clearance obtained by the applicant – showing that she has no criminal record in Iran – is genuine. While the Tehran Interpol office did not issue, nor assess, the original Iranian Police clearance dated [September] 2013, it has confirmed that it issued a similar document to the applicant 3 years later, which shows that the applicant has no criminal record in Iran. The Tribunal considers that this lends weight to the applicant’s contention that she has no criminal record in Iran, and therefore had no reason to provide a bogus document to the Department falsely asserting this, as there was no need for her to do so. The Tribunal gives further weight to the fact that the applicant obtained a further document from the Esfahan Judiciary Department in August 2016 confirming that they validly issued the Police Clearance of [September] 2013 to the applicant, and that its contents were genuine, apart from a spelling error in relation to Esfahan, and the second part of the applicant’s surname not being included. While the DEU examiner was unable to establish whether this further statement was genuine, the Tribunal accepts that it is, as there is no substantial evidence to the contrary. On this issue, the Tribunal notes that the Department has not obtained or uncovered any evidence that suggests that the applicant does in fact have any kind of criminal record in Iran.
Adding to the Tribunal’s acceptance of these Iranian documents as genuine is its assessment of the applicant’s credibility at hearing. The Tribunal found the applicant to be a credible witness at hearing, who was able to give detailed and consistent evidence about the sequence of events undertaken by her or family members to obtain the various documents provided to the Department, and to also provide a potential explanation for why the Department had received a dob-in related to her and her family’s visa applications. While the Tribunal is not in a position to make a finding of fact about the identity of the person who made the dob-in allegations, or the veracity of the contents of the dob-in information, it observes that there appropears to have been no further investigation by the Department or any findings that the allegations were true (or partially true).
Given all of the above, the Tribunal is satisfied that the Iranian Police clearance issued to the applicant [in] September 2013 is genuine and was issued by the Iranian authorities as she asserts. To the extent that it contains incorrect information – being the incorrect spelling of Esfahan and the incorrect shortening of her surname (that is, without the [Applicant Surname 1] part) – the Tribunal accepts that these were inadvertent errors made by the issuing authority, and it further accepts that they do not invalidate the clearance (as asserted in the further statement issued by the authorities in August 2016). The Tribunal acknowledges that there were other discrepancies identified in the NOICC regarding the number of stamps on the certificate and the position of the applicant’s photo on the form in relation to the stamps, but it does not regard these as either definitively proven, or even if they were, that they necessarily indicate that the document is not genuine or has been altered by someone without the authority to do so.
Accordingly, the Tribunal does not reasonably suspect that that the Iranian police clearance issued to the applicant [in] September 2013 is a bogus document, because:
·     the Tribunal is satisfied that it is not a document purports to have been, but was not, issued in respect of the applicant;
·     it is satisfied that it is not a document that is counterfeit or has been altered by a person who does not have authority to do so; and
·     it is satisfied that it was not a document that was obtained because of a false or misleading statement, whether or not made knowingly.
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 sa

DECISION

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s subclass 176 (Skilled - Sponsored) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Alison Mercer
Member

ATTACHMENT – Migration Act 1958 (extracts)

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

[2019] AATA 1778

26 January 2019

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