Ali (Migration)

[2020] AATA 3684

Ali (Migration) [2020] AATA 3684 (15 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kashif Ali

CASE NUMBER:  1922886

DIBP REFERENCE(S):  BCC2018/4157871

MEMBER:John Cipolla

DATE:15 July 2020     

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

Statement made on 15 July 2020 at 4:09pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – request for postponement of hearing declined – non-appearance before the Tribunal – ground for cancellation – incorrect information in visa application – completion of prescribed qualification from a prescribed institution – bogus document – academic transcript – consideration of discretion – grant of visa based on incorrect information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan born in 17 August 1991. He was granted the Skilled Recognised Graduate Class VF visa on 30 July 2018 which was valid until 12 February 2020. This visa allows recent engineering graduates of recognised institutions to travel to and remain in Australia to gain up to 18 months skilled work experience. To be eligible for this visa the applicant must have completed an engineering degree at a recognised institution in the past two years.

3. On 31 July 2019, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.103 of the Act. The applicant did not respond to the NOICC and his visa was cancelled on 15 August 2019. The applicant sought a review of the delegate’s decision.

4. On 22 June 2020, the Tribunal forwarded a hearing invitation to the applicant via his nominated authorised recipient, advising of a hearing scheduled for 15 July 2020 at 10am via teleconferencing facilities.

5. On 25 June 2020, the applicant requested a postponement of the hearing on the basis that he was trying to have his education documents verified by the Higher Education Commission of Pakistan, noting that the Commission was closed due to COVID 19.

6. On 26 June 2020, the Tribunal wrote to the applicant to advise that the scheduled hearing would be going ahead on 15 July 2020 and that the applicant would be provided with additional time to provide further submissions following the conclusion of the hearing.

7. On 14 July 2020, the applicant again requested more time to obtain academic documentation verification from Pakistan.

8. On 14 July 2020, the Tribunal wrote to the applicant to advise that the hearing would be proceeding and that the issue of the provision of further documents would be discussed at the hearing scheduled for 15 July 2020.

9. The Tribunal has carefully considered the requests to postpone the hearing made by the applicant but for the reasons below has decided not to postpone the hearing as the applicant has had ample time and opportunity to collate any evidence that he wished to submit rebutting the findings of the Department, indeed he has had that opportunity since being served with the NOICC dated 31 July 2019 and he has done nothing to this end.

10. On 15 July 2020, a hearing officer of the Tribunal made 3 attempts to contact the applicant and his representative at the time scheduled for the hearing. Despite these multiple attempts neither the applicant nor his representative were able to be contacted.

11. The Tribunal notes that the applicant was issued with a NOICC dated 31 July 2019. The NOICC went into considerable detail about the prospective grounds for the cancellation of the applicant’s visa under s.109 of the Migration Act for two identified instances of non-compliance namely, the provision of incorrect information under s.101, which requires that a visa application form must be completed in such a way that no incorrect answers are given. The second identified instance was the provision of bogus documents, noting that s.103 of the Migration Act requires that a non-citizen must not give, present, produce or provide to an officer a bogus document of cause such a document to be given.

12. The NOICC as noted, went into considerable detail about why the Department had formed a view that the applicant had provided the Department with incorrect information and a bogus document in his Subclass 476 visa application.  The Department noted that validation checks undertaken by the Department established that the bachelor certificate and transcript for a Bachelor of Science Engineering issued by COSMATS Institute of Information Technology, Wah Campus, in the Punjab in Pakistan pertaining to the applicant, was fraudulent, and appeared to be part of wide spread fraud where certificates and transcripts identical in all respects have been altered to reflect an applicant.

13. The NOICC is an opportunity for an applicant to provide a detailed response to the Department, firstly as to whether they agree that the ground for cancellation of their visa under the identified grounds in the NOICC exists, and secondly, having regard to the relevant discretionary factors, whether or not their visa should be cancelled.

14. The applicant failed to provide a response to the NOICC. At the time that the applicant was issued with the NOICC Pakistan, and indeed the rest of the world, was not gripped by COVID 19, which began its prominence in late March 2020, some 8 months after the service of the NOICC.

15. The applicant was given a full opportunity to respond to the NOICC, and if this required him obtaining verification of his academic documents from an appropriate body in Pakistan, he would have been given time to pursue this, and would not have not been precluded from doing so as the relevant Commission would not have been impacted upon by COVID 19.  The applicant elected not to pursue this course and not to respond to the NOICC.

16. The applicant annexed a copy of the decision record to his application for review that was lodged with the Tribunal on 16 August 2019.  The Departmental cancellation decision was made on 15 August 2019, the day before the applicant lodged his review application. The applicant was clearly cognisant of the respective issues in the review at the time he received the Departmental decision and could have contacted the relevant authorities in Pakistan to obtain verification of his academic qualifications.  The applicant had also engaged the services of a registered migration agent at review and the Tribunal notes that he had an expert to guide him through the review process and was not unrepresented.

17. The Tribunal also notes that despite the review application being lodged with the AAT on 16 August 2018 that there have been no submissions provided addressing the substantive issues in the review.

18. The Tribunal also notes that there have been two documents that were identified by the Departmental delegate on 23 August 2019 as being the subject of s.375A of the Migration Act, namely that the disclosure of the documents, otherwise to the Tribunal would be contrary to public interest.

19. Had the applicant attended the review hearing, the Tribunal had intended to discuss the s.375A Certificate with the applicant. The Tribunal would have advised the applicant that it had made a determination that the certificate was invalid, as the Tribunal did not find that the release of the material, the subject of the certificate, would be contrary to the public interest for the reasons that were articulated by the delegate. The information that was the subject of the certificate was the applicants academic transcript submitted with the visa application and another academic transcript issued by the same education provider in Pakistan for another applicant that was identical in every respect, apart from the name of the applicant and the dates of the certificate being slightly different, i.e. same month and year, different day.

20. The Tribunal notes that both the NOICC and the delegates cancellation decision record both go into considerable detail pertaining to the similarity in academic transcripts for the applicant and a number of other academic transcripts, which noted that the Department had found that many academic transcripts were identical in terms of dates and results. Further to this that the academic transcripts purporting to be issued in respect of different students and be unique to each student, reflected identical course grades, identical course codes and course titles in identical order with identical document numbers attributed to each document. The information that is the subject of the s.375A is clearly information in the public domain made available to the applicant in the NOICC and the Departmental decision record. The Tribunal has placed no weight on the information that is the subject of the certificate and notes that this information is the subject of extensive descriptors in both the NOICC and the cancellation decision record.

21. As has been noted, had the applicant attended the review hearing the Tribunal had made it clear in advance of the hearing that it would enable the applicant to collate and provide post hearing material to the Tribunal. Despite this the applicant did not attend the Tribunal hearing and no reason for his non-attendance has been provided and the applicant has now lost his right to a review hearing, and in these circumstances the Tribunal is able to proceed to decision, having regard to the evidence before it.

    Relevant law

22. 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.

23. 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.

    Did the Notice comply with the requirements in s.107? 

24. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

25. The Tribunal is satisfied that the Notice contains sufficient particulars to enable the applicant to identify and address the issues.  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?

26. 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 of the Act.

27. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

    a.The applicant was granted a Subclass 476 visa on 30 July 2018 a visa that was valid until 12 February 2020.

    b.In his application form, in response to a question about his post-secondary qualifications, the applicant stated that he completed an Honours degree (Ist Class) namely a Bachelor of Science Engineering at COSMATS Institute of Information Technology at the Wah Campus, Punjab Pakistan, a course which undertook between 2 September 2013 and 31 August 2017. 

    c.The applicant confirmed that all of this information provided in support of the visa application was correct.  In addition to this the applicant when completing the Form 80 Personal Particulars Assessment which he signed on 6 July 2018 confirmed in this form the completion of the above course of study.

    d.On the basis of this information provided to the Department the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 30 July 2018.

    e.The Department undertook integrity and validation checks regarding the applicant’s qualifications. The Department became aware of widespread visa fraud involving applicants claiming to be engineering graduates from COSMATS Institute of Information Technology providing bogus academic transcripts to fulfil the requirements for the grant of the Subclass 476 visas.  The Department’s investigation found that many transcripts were identical in terms of dates and grades and that the personal identifies were being amended to tailor transcripts to individual applicants.

    f.The applicant’s transcript has been matched against samples from other graduates claiming to have studied the same course at the same institution and was found to have identical scores, grades and dates as other applicants.

28. The applicant as has been noted, failed to respond to the NOICC issued by the Department in July 2019, and since lodging a review application with the Tribunal on 16 August 2019 has not provided any documents or submissions addressing the issues in the review.

29. The Department has undertaken integrity and verification check pertaining to the applicant’s qualifications and academic transcript submitted in support of his visa application and found that the documents are bogus and that the applicant provided incorrect information to the Department in his Subclass 476 visa application. 

30. No evidence to rebut these finding was provided to the Department in response to the NOICC issued to the applicant by the Department on 31 July 2019.  No evidence to rebut these findings has been provided to the Tribunal since the lodgement of a merits review application by the applicant on 16 August 2019. 

31. The Tribunal finds, based on the evidence before it that the applicant filled in or completed his application form in a way that incorrect answers were given or provided and he did not comply with s. 101 of the Act. The Tribunal also finds that the applicant gave, presented, produced or provided, to an officer or the Minister, a bogus document or caused such a document to be so given, presented, produced or provided. He did not comply with s.103 of the Act.

32. 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?

33. 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).

34. 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). They are addressed below:

    The correct information

35. The correct information is that the applicant, based on the evidence before the Tribunal, did not complete the Bachelor of Science Engineering at COMSATS Institute of Information Technology at the Wah Campus, Punjab Pakistan between 2 September 2013 and 31 August 2017. The documents submitted by the applicant in support of his visa application were the subject of integrity checks and found to be fraudulent.

    The content of the genuine document (if any)

36. The Tribunal has found, based on the evidence before it, that the qualification and academic transcript provided are bogus documents.

    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.

37. In assessing whether the applicant was eligible to be granted the visa, the delegate found the applicant had completed an engineering qualification at a specified educational institution, within 24 months immediately prior to lodging the application.

38. In the application for the visa the applicant stated in response to the question, whether he had completed a recognised course at a recognised university in the 24 months immediately before lodging the application, responded “yes” and this as noted was clearly incorrect

39. In providing the incorrect answers the applicant has obtained an immigration outcome to which he may not have been entitled.

40. Clause 476.212 of Schedule 2 to the Regulations requires the applicant to have completed a prescribed qualification from a prescribed institution. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of his eligibility for the visa. The Tribunal finds that the decision to grant the visa was based on incorrect information and bogus documents relating to the applicant’s study.

41. Further, the applicant would have been required to meet PIC 4020 before he could be granted the visa and if it was known that the applicant gave information that was false or misleading in a material particular and a bogus document with his application, the assessment against PIC 4020 would have been more thorough. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information and on a bogus document.

    The circumstances in which the non-compliance occurred

42. The circumstances in which the non-compliance occurred was that the applicant in support of his Subclass 476 visa submitted documents that indicated he had completed a course of study, namely a Bachelor of Science Engineering at COMSTAS Institute of Information Technology at the Wah Campus, Punjab Pakistan between 2 September 2013 and 31 August 2017. The documents submitted by the applicant in support of his visa application were the subject of integrity checks and found to be bogus documents.

    The present circumstances of the visa holder

43. The Tribunal has no evidence before it pertaining to the current circumstances of the applicant.  The evidence before the Tribunal indicates that the applicant appears to be residing in Victoria, he is a on a bridging visa and is clearly meeting his cost of living expenses and has access to finances to enable him to meet the costs of his merits review application and the costs of his representation by a migration agent.

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

44. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the above provisions

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

45. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

46. The application for the visa was made in May 2018. Approximately 26 months have passed since the non-compliance.

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

1. There are no known breaches of the law. The Tribunal acknowledges the applicant’s Indian police certificate.

   Any contribution made by the holder to the community.

2. There is no evidence before the Tribunal pertaining to any contribution the applicant has made to the community since he has been resident in Australia.  

3. 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 Procedure 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.

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

4. If the applicant resides in Australia and if the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he would be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

   Whether there would be consequential cancellations under s.140

5. There are no persons whose visas would be subject to cancellation under s.140.

   Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

6. There is no evidence before the Tribunal that there are children who would be affected by the cancellation.

7. There is no evidence before the Tribunal that would engage Australia’s protection obligations. The Tribunal finds, on the basis of the evidence before it, that Australia’s international obligations would not be breached as a result of the cancellation.

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

8. The applicant has not provided evidence to the Department in response to the NOICC or to the Tribunal at review pertaining to the hardship that may be caused to him as a consequence of the cancellation of his visa.

9. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 and s.103 of the Act and that there are grounds for cancelling his visa.

10. The Tribunal finds that had the correct information and correct documentary evidence been before the delegate the applicant would not have met the essential criteria relevant to the grant of the visa. 

11. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

12. The Tribunal places considerable weight on the fact that the decision to grant the visa was based on incorrect information and bogus documents. As noted, the applicant would not have been granted the visa if the correct information had been before the delegate.

13. The Tribunal finds that the circumstances in which the ground for cancellation arose, the fact that the decision to grant the visa was based on incorrect information and the significance of the incorrect information and bogus documents to the applicant’s eligibility for the visa, outweigh other considerations.

14. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

    John Cipolla
    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.