Ashraf (Migration)

[2022] AATA 2308

Ashraf (Migration) [2022] AATA 2308 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Farhan Ashraf

CASE NUMBER:  2012604

HOME AFFAIRS REFERENCE(S):          BCC2018/5453565

MEMBER:Michael Bradford

DATE:7 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2022 at 10:57am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – academic history – timing of completion of studies in Pakistan – bogus document – alternation to dates in official certificate – consideration of discretion – Statement of Purpose (SOP) – breaches of obligations – unscrupulous migration agent – applicant’s responsibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 101, 103, 107, 109, 111

Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Introduction, certain procedural aspects and the hearing

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who, on 3 August 2020, cancelled the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided to the Department of Home Affairs (the Department) incorrect information and a bogus document in relation to the timing of his completion of intermediate level studies in Pakistan. The issues in the present case are, firstly, whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Review Application was filed on 7 August 2020 and is within time.

4. On 4 May 2022 the applicant was invited to appear before the Tribunal on 25 May 2022 to give oral evidence and present his review case on the telephone. The invitation stated that he should provide his documents by 18 May 2022 and, in so doing, have regard to the Department’s stated reasons for cancelling his visa.

5. On 19 May 2022 the applicant provided a submission and other supporting documents to the Tribunal and, on 23 May, in response to a request from the Tribunal, he provided a signed MR6 form which contained information concerning changes to his contact details.

6. Shortly before the hearing the Tribunal was provided with a merged file from the Department which contains a copy of the Visa Application (VA), various documents filed in support of the VA, other documents which relate to the cancellation process and, of course, the decision under review.

7. The Tribunal also obtained from external sources a PRISMS record and Movements Details for the applicant. Relevant information in these documents was discussed with the applicant at the hearing and was not controversial.

8. On 25 May 2022 the applicant appeared at the telephone hearing. The Tribunal received oral evidence from him over a period of about 1 hour and 25 minutes most of which was in the English language. An interpreter was on another line but had limited involvement given that the applicant preferred to communicate in English. He seemed to have a reasonably good understanding of it. Some of his evidence was translated but mostly at the request of the Tribunal when unresponsive answers were given.

9. The applicant did not have the assistance of a migration agent at the hearing, nor apparently did he retain an agent to act for him at any stage of the review process.

10. At the conclusion of the hearing, in view of time constraints, the Tribunal reserved its decision.

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

    Overview of the relevant statutory provisions

12. Sec 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with, among other provisions, Secs 101(b) and 103 of the Act. Relevantly these two provisions require non-citizens to provide correct information in their visa applications, not to provide bogus documents in support of that information and to notify the Department of any incorrect information of which they become aware and of any relevant changes in their circumstances.

13. The exercise of the cancellation power under Sec 109 is conditional on the Minister issuing a valid notice to the visa holder under Sec 107 of the Act providing particulars of the alleged non-compliance (the NOICC). If an NOICC is issued which does not comply with the requirements in Sec 107 the power to cancel the visa cannot lawfully be exercised.

14. In this case the Tribunal is satisfied that the delegate was entitled to issue the NOICC under Sec 107 and that it complies with the statutory requirements.

    Has there been non-compliance as described in the Sec 107 Notice?

15. The NOICC in this case particularised two relevant non-compliances, namely those under Secs 101(b) and 103 of the Act. The 101(b) contravention was said to arise from incorrect information provided by the applicant on pages 9 and 10 of the VA lodged on 1 August 2018 which related to the asserted completion by him in 2017 of intermediate study undertaken with the Board of Intermediate and Secondary Education, Gujranwala (the Board). The 103 contravention was said to arise from the provision of the Certificate relating to that course purportedly issued by the Board on 12 September 2017 (the Certificate).

16. According to the NOICC the integrity checks conducted by the Department revealed that the information in the Certificate matched records held by the Board which confirmed that the examination referred to in the Certificate had in fact been held in 2015 and that the document had in fact been issued by the Board in that year, and not (as it suggests) in 2017. This led to a finding by the delegate that the Certificate had been tailored, that is fraudulently altered, to support the VA.

17. In support of the VA the applicant had also provided to the delegate an undated but signed Statement of Purpose (the 2018 SOP) in which he referred to his intermediate studies with the Board as having been completed in 2017. Although in his oral evidence he denied having signed this document, for reasons to be given shortly, the Tribunal is unable to accept that he did not do so.  

18. In his unsigned response to the NOICC the applicant did not dispute that the dates on the original Certificate which he had given to his agent in Pakistan for the purpose of preparing the VA had in fact been altered by the agent albeit, he says, without his knowledge or permission. He explained in his response that he had given the original document to the agent, that he (the agent) had kept it and other unspecified records to process the VA before returning them to him at some stage, presumably at or about the time the visa was granted. He also refers to an interview with immigration officers at the airport in Sydney on his return from a visit to Pakistan in September 2019 when the alterations to the dates in the Certificate were, according to his evidence, first brought to his attention. The applicant said that he had the original Certificate, and perhaps other documents, with him at this interview, that these were made available to the officers and that he was ultimately cleared to enter but, according to his evidence, was advised to inform the University, where he was studying at the time, and the Department of the discrepancies in his documents. He says, and the Tribunal accepts, that he notified the University but not the Department.  

19. Among the documents in the Department’s file is a copy of the original Certificate which states that the examination had in fact been conducted by the Board in 2015 and that the document was issued by the Board on 12 September of that year. This document does not appear to have been provided to the Department until after the NOICC was served. Certainly, there is no clear evidence from him that he gave it to the Department at any earlier point in time.

20. The applicant also asserted in his response to the NOICC that the visa had not been granted to him solely on the information in the Certificate as he had provided other records to the delegate in support of the VA, including IELTS results.

21. In his oral evidence the applicant in effect reiterated what he had stated in his response to the NOICC regarding the circumstances in which the dates on the Certificate came to be altered.

22. This being so, and despite the applicant’s assertion that the visa would not have been granted to him solely on the information in the Certificate, an assertion which can have no bearing on the issue of non-compliance with Secs 101(b) and/or 103, the delegate’s conclusions on this issue, which led to the eventual Notice of Cancellation (the NOC), were plainly open to him and indeed were, as a matter of law, correct.

23. It was reasonable for the delegate to infer, and indeed it is the only inference which can logically be drawn by the Tribunal on the evidence given by the applicant on the review, that the dates on the Certificate were deliberately altered, probably by the agent, to deceive the delegate into thinking that the applicant had not completed his secondary schooling until 2017 thereby relieving the applicant of the need to explain in the 2018 SOP what he had been doing in Pakistan since 2015. This was clearly a circumstance which the delegate would have been required to consider, had he been made aware of it, when reaching a view on the issue of whether the applicant met the statutory thresholds for the grant of a Student 500 visa, more particularly those which related to the Genuine Temporary Entrant criterion (the GTE issue).

24. That the applicant is, for the purposes of this review, responsible for this fraud must follow from the combined operation of Secs 98 and 111 of the Act when read in conjunction with the definition of “bogus document” in Sec 5 of the Act. To read these provisions in any other way would enable an applicant to avoid responsibility for these contraventions simply by engaging an agent to handle the VA process, something which would undermine their plain legislative intent and purpose.

25. Thus, for the purposes of determining whether there has been a relevant non-compliance with either (or both) of Sec101(b) and Sec 103, it simply does not matter whether the applicant or his agent filled in the VA and/or altered the Certificate, nor does it matter whether the applicant was otherwise aware of what his agent had done in connection with the VA. The applicant is, by virtue of the relevant provisions in the Act, responsible in law for these contraventions.

26. For those reasons the Tribunal finds there was non-compliance with Sec 101(b) and 103 of the Act in the ways described in the NOICC and that, consequently, there are grounds for cancellation of the visa.

    Should the visa be cancelled?

27. Given there has been non-compliance in the ways described in the NOC, it is necessary to consider whether the visa should be cancelled under Sec 109(1) of the Act.

28. Although cancellation in this context is ultimately a discretionary matter for the Tribunal, in exercising the power under Sec 109(1) the Tribunal must consider the matters referred to in Sec 109(1)(b) and (c), namely the applicant’s response to the NOICC and the circumstances listed in regulation 2.41, together with any other circumstances which, on the evidence led in the case, come into play; see MIAC v Khadgi (2010) 190 FCR 248. In this case there are other factors to consider such as the question of whether the applicant will suffer undue hardship if his visa is cancelled.

29. In addition, the Tribunal may have regard to government policy as set out in the Department’s Procedural Advice Manual (PAM3) under the heading “General Visa Cancellation Powers”. This refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

30. There is in this case a significant issue which the Tribunal must firstly resolve concerning the circumstances in which these non-compliances occurred and, more particularly, as to whether the applicant was aware that the agent had provided to the delegate incorrect information regarding his academic history to procure the visa. This question arises because of the statement in the 2018 SOP that the applicant had completed his intermediate schooling in 2017, a statement which of course is perfectly consistent with the incorrect information in the other documents. Although in his oral evidence he denied having signed the 2018 SOP the signature which appears on it does bear a striking similarity to the one which appears on the MR6 form mentioned earlier, a document which he accepts he did sign.

31. Ultimately, having closely examined the signatures on these two documents, and after making allowances for the period which elapsed between them, the Tribunal is satisfied that the applicant did sign the 2018 SOP. The Tribunal does not need evidence from a hand-writing expert to this effect in circumstances where the similarities in the signatures on these two documents are glaringly obvious.

32. This being so, the applicant must be taken to have known, for the purposes of determining whether his visa should be cancelled, that the 2018 SOP contained false and misleading information concerning his academic history. Indeed, given that the information in this document concerning that history is relevantly no different to what is contained in the other documents, the Tribunal is also satisfied that the applicant knew, at or about the time when the VA was filed, that the information which his agent was providing to the delegate regarding that history was incorrect.

33. Although these circumstances would ordinarily be sufficient for the Tribunal to find that the visa should, as a matter of discretion, be cancelled there are other factors in this case which militate strongly towards that conclusion.   

34. Before coming to them it is convenient to briefly summarise the applicant’s relevant academic and other personal history, both here and in his home country of Pakistan.

35. He was born in 1997 and, as noted earlier, he completed his Higher School Certificate (or the equivalent intermediate level in Pakistan) in 2015. He also completed a Certificate III in IT at a local institution in Pakistan in April 2018.

36. The VA was filed in early August 2018 to enable him to study a Diploma of IT and a Bachelor of IT at the University of Wollongong. The Student 500 visa was granted to the applicant in late August of that year, he arrived in Australia on 22 September 2018 and commenced studies in the Diploma on 8 October 2018.   

37. In his oral evidence the applicant said, consistently with the information in the PRISMS record, that in July 2019 he obtained a deferment of his studies in the Diploma to return to Pakistan for his sister’s wedding. In his submission he said, among other things, that on his return to Australia in September of that year, having been advised to do so by an immigration officer at the airport, he informed the University that the Certificate contained incorrect information. In his oral evidence he accepted that although the officer also told him during the interview to inform the Department this was something which he did not do. He has given to the Tribunal no explanation for this omission beyond saying that it was “(his) mistake”.

38. PRISMS reveals, and the applicant accepted in his oral evidence, that his enrolment in the Diploma was cancelled on 28 November 2019 for unsatisfactory progress. He gave evidence to the effect that he was not really interested in studying IT and that he only enrolled in these courses because his parents wanted him to. His enrolment in the Bachelor course was cancelled in early 2020 when he notified the University that he was no longer interested in studies in this field.

39. Although his oral and other evidence is that he always wanted to study Nursing in Australia this assertion is impossible to reconcile with what he has done since arriving here and, more particularly, with the fact that his enrolment in a Certificate IV in Ageing Support was also cancelled, according to his evidence, before classes began in that course in April 2020. Absent an acceptable explanation for this, apart from an oblique reference to COVID, the Tribunal is quite unable to accept that he now genuinely wants to change academic direction at this late stage and pursue studies in Nursing as a means of advancing legitimate career prospects in that field.

40. In August 2020 he enrolled in a Bachelor of Business but accepted in his oral evidence that he never attended any classes in this course and that his enrolment was cancelled on 14 September 2020. He has given no explanation for this other than his submission that as from 7 August 2020 he had no study rights because of the conditions which attached to the Bridging visa which had been granted to him on that date. Although this assertion is correct insofar as it goes what he has not mentioned in the submission, or otherwise come forward with in his evidence, is that on 26 October 2020 he was granted a fresh Bridging visa which removed the study restriction, a fact which he must have been aware of. He also accepted in his oral evidence that he has not been enrolled in any other course of aware of study since his enrolment in the Business course was cancelled.

41. When asked at the hearing to explain what he had been doing in Australia since September 2020 the applicant said that during COVID he was working full time as a site security manager for a firm which provided security services at Regional collection centres in New South Wales. Recently he has moved to Western Australia where he now works, he says, on a casual basis as an Uber driver.

42. In his submission the applicant refers to his employment during COVID. Although he describes himself, perhaps accurately, as a “frontline worker” during this period the Tribunal does not accept that this employment of itself suggests that he has a genuine interest in pursuing a career in Nursing and the other objective features of this case provide little if any support for that proposition.

43. Overall, his academic history in Australia leaves much to be desired. For an applicant, such as this one, who in effect asserts that he has a right to be granted a Student 500 visa, it is simply unacceptable.   

44. In the 2018 SOP the applicant explained to the delegate in some considerable detail why he wanted to study IT in Australia and says that, if he was granted the visa, he would concentrate on his studies, would not engage in non-educational activities and would not violate the procedure laid down for foreign students. The applicant has not adhered to any of these statements, has not adequately explained why he has not done so, and indeed has engaged in conduct since the VA was filed in August 2018, now almost 4 years ago, which flagrantly contradicts them.

45. More particularly, that he was advised by an immigration officer in September 2019 to inform the Department of the incorrect information in his VA and other documents and did not do so until after he received the NOICC in July 2020 is an adverse factor under Subdivision C of Division 3 of Part 2 of the Act and one which, in the Tribunal’s view, has given rise to serious breaches of his obligation to inform the Department of what had occurred, an obligation which he had explicitly recognised in the 2018 SOP. This conduct also sits comfortably with the Tribunal’s finding that the likely explanation for his reticence in coming forward is that he was in fact aware of the incorrect nature of the information given to the delegate regarding his academic background at or about the time the 2018 SOP was filed.

46. Attached to his response to the NOICC are other documents which, the applicant says, were also fabricated by his migration agent to procure a refund from the University of some $13,500 for tuition fees which he (the applicant) or other members of his family paid for the IT courses shortly before the VA was filed. These funds were, according to the applicant’s response, paid to the agent but have never been accounted for. The applicant also gave oral evidence to this effect.

1. These documents consist of a Leaving Form from the University dated 9 December 2019, an undated Ticket Receipt apparently issued by a Travel Agent for a flight departing from Melbourne on 16 January 2020 and an email apparently sent to the University by the applicant on 21 January 2020 which purportedly confirms that he (the applicant) had already returned to Pakistan.

2. The applicant also states in his response to the NOICC that the agent fraudulently procured a refund of an unspecified amount from an authorised insurance provider by falsifying other documents.

3. On this evidence, and despite some misgivings which the Tribunal has concerning how and when these other documents came into existence, the Tribunal is prepared to accept, for the purposes of this review, that he has been defrauded of significant funds by an unscrupulous migration agent in Pakistan.

4. To this extent the applicant has obviously sustained some financial hardship. That said, there is no clear evidence from him to establish to the Tribunal’s satisfaction that the tuition fees for the IT package were paid from moneys which in fact belonged to him, as distinct from other members of his family, nor is there any evidence from him or them on which the Tribunal could begin to assess the actual impact which these frauds have had on his or their financial resources. In addition, on the Tribunal’s findings, the fact that the applicant was privy to the provision of incorrect information to the delegate must inevitably affect the weight to be given to this factor.

5. Overall, whilst the Tribunal has paused to consider the aspect of financial hardship to the applicant and/or his family and the more general effects on him of having been defrauded of significant funds in this way, the fact remains that he has been, at least to some extent, the author of his own harm in that he was not only privy to the incorrect information but also must be taken to have been aware that the agent could not be trusted. This factor cannot in these circumstances be given any significant weight in his favour. 

6. Although the applicant also asserts in his response to the NOICC that cancellation of his visa will occasion to him mental health issues, such as emotional stress and other psychological harm, there is no medical evidence to this effect and the Tribunal is not prepared to act on the face of these uncorroborated assertions. Consequently, it attributes no real weight to them.

7. Insofar as his family might be disappointed and/or embarrassed if he returns home with a cancelled visa in these circumstances this is something which stems in no small way from his own conduct. It will be a matter for him to explain to them as best he can why he now finds himself in this position.

8. Whilst it is distinctly possible that his parents were also aware of what was being done by the agent and the applicant to procure the visa, the Tribunal is unable to find that they were. This consideration can, in any event, attract little if any weight in his favour on the evidence he has led.

9. Insofar as other possible mandatory legal consequences may arise from the cancellation the Tribunal considers it unlikely that the applicant would be detained if his visa remains cancelled as he will have some little time to leave Australia before detention becomes inevitable. Although he will be temporarily prevented from obtaining another visa to enter Australia this is due to the legislation and is the result of his own actions. This consideration can attract only minimal weight in his favour.

10. The Tribunal is not satisfied on the evidence before it that any international obligations would be breached if the visa were to be cancelled.

11. There are no other matters for consideration arising on the evidence apart from the applicant’s assertion that he has contributed to the community by working as a site security officer during COVID. The Tribunal does not consider this work to be a relevant contribution given that he was presumably remunerated for it at award rates. Certainly, there is no suggestion in his review case that he was not.

12. Overall, the considerations set out above weigh heavily in favour of the Tribunal exercising its discretion to affirm the decision to cancel the applicant’s visa.

13. Considering the relevant the circumstances, and giving to them appropriate weight, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michael Bradford
    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.

    102Passenger cards to be correct

    A non‑citizen must fill in his or her passenger card in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given.

    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.