Ashraf (Migration)

[2021] AATA 4757

Ashraf (Migration) [2021] AATA 4757 (8 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rubina Ashraf
Mr Ashraf Munir

CASE NUMBER:  2014532

HOME AFFAIRS REFERENCE(S):          BCC2020/1899314

MEMBER:Kira Raif

DATE:8 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 08 December 2021 at 9:26am

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – incorrect answers and bogus documents in visa application – education and employment, supporting documents and skills assessment – contradictory answers in previous visa applications and passenger cards – inconsistent explanations for incorrect answers – claimed salary significantly below range – information on company’s website and letterhead – discretion to cancel visa – late claim of fear of harm from former husband – employment and social ties – member of family unit – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107(1), 109(1), 140(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cls 489.222, 489.224

CASE
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 Home Affairs to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant was granted the Class SP Regional Skilled visa on 20 March 2019. In July 2020 the applicant was issued with a 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 provided her response to the NOICC and her visa was cancelled in September 2020. The applicant seeks review of the delegate’s decision.

3. 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.

4. The applicants appeared before the Tribunal on 8 and 22 September and 6 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the witnesses nominated by the applicant. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. 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?

7. 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.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s 107. The Tribunal is satisfied that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s 107 notice?

9. 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 ss 101 and 103 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in October 2018 the applicant made the application for the Skilled – Regional (Provisional) Subclass 489 visa. The applicant had nominated the occupation of Customer Service Manager in her application and indicated that she had obtained a skills assessment from VETASSESS dated 17 October 2017. With respect to her employment, the applicant gave the following answers on the application form:

    13/04/09 – 31/03/10     Customer Service Representative, Orison International

    01/04/10 – 31/08/11     Team Leader Customer Services, Orison International
    01/09/11 – 30/06/13     Assistant Manager Customer Services, Orison International,

    01/07/13 -                 Manager Customer Services, Orison International

11. The applicant indicated that she was claiming points for the most recent employment as Manager, Customer Services but not for the earlier employment. With respect to points allocation, the applicant claimed that she had been employed in the nominated occupation or a closely related occupation for 5 years in the 10 years immediately before the invitation to apply. The applicant included with her application a number of documents relating to her employment. These included:

    ·the VETASSESS skills assessment dated 17 October 2017 which refers to the applicant’s formal qualifications obtained from the University of Karachi and her employment as Assistant Manager and Manager – Customer Services at Orison International between September 2012 and October 2017. On the basis of these qualifications and experience the applicant was found to have met the skills assessment requirements for the nominated occupation of Customer Service Manager (ANZSCO 149212);

    ·a letter of appointment dated 10 April 2009 issued by Orison International for the role of Customer Service Representative;

    ·a confirmation letter issued by Orison on 13 July 2009 referring to the completion of the probationary period;  

    ·a salary certificate issued by Orison on 6 October 2018 and a number of payslips for the period from July 2013 to September 2018;

    ·bank statements from Faysal Bank listing the applicant’s bank records with salary deposits;

    ·a letter outlining the applicant’s experience, issued by Orison on 1 October 2018;

    ·a letter from Orison dated 11 October 2018 confirming her income was below the taxable scale.

12. The applicant was granted the Skilled visa on 20 March 2019.

13. The primary decision record indicates that on 2 August 2010 the applicant made the application for a Visitor visa. She stated in that application that she was an unemployed housewife. When travelling to Australia, the applicant stated her usual occupation on her Incoming Passenger Card (IPC) as ‘student’.

14. In August 2013 the applicant applied for a further Visitor visa. In that application the applicant declared she was working as an Officer Grade III/Trainee Cash officer at Soneri Bank and provided a letter from her employer to support that claim. The applicant indicated that she was undertaking an MBA and was supporting her studies, having commenced employment in the previous year. When travelling to Australia, the applicant stated her usual occupation on the IPC as ‘banker / student’.

15. The primary decision record indicates that an investigation has been undertaken in relation to Orison International. The website for the company has been operating from about September 2017 and prior to that date the website was under construction. In June 2020 the applicant was named as a customer service manager. The delegate notes that the applicant’s employment letter, which was on Orison letterhead, has Linkedin and Facebook profile links, both of which are invalid. The Orison website has no links to either LinkedIn or Facebook profiles, and while the company does have a profile, there is no activity and no company information detailed on these profiles. A search of business registration with the Securities and Exchange Commission of Pakistan does not indicate there is such a registered company.

16. The primary decision record indicates that the applicant’s payslips show that she earned about 34,000 rupees per month, while an average salary for Customer Service Managers in Pakistan is typically around 107,000 rupees and averages between 58,000 and 162,000 rupees. It is noted that based on the applicant’s claimed five years experience in this role, as well as her claimed educational qualifications, her claimed income was significantly lower than would be expected. The delegate also noted that the applicant’s payslips submitted to VETASSESS did not match the payslips submitted to the Department (34,987 rupees on one set of payslips and 32,760 on the other for each month). The delegate also notes that the payee bank account numbers are different on the payslips, one showing Soneri bank and the other Faysal bank. This suggests, the delegate found, that some or all of the payslips were bogus documents.

17. Overall, the delegate concluded that the applicant did not work at Orison International, or did not work for the period claimed. The delegate concluded that the various employment documents were bogus documents, and that the Skills assessment was a bogus document because it was based on a false or misleading statement.

18. In her response to the NOICC (the applicant provided to the Tribunal a copy of her submission to the delegate) the applicant states that internet use is not as established in Pakistan and the internet is not used as a business tool in Pakistan. The applicant states that the delegate relied on flawed reasoning and made unreasonable presumptions. The applicant notes that the VETASSESS assessment was based on an investigation and her employment was corroborated. The applicant explained to the Tribunal that VETASSESS contacted her and her employer and discussed the nature of her employment. Even if that was the case, the Tribunal notes that there was no information before VETASSESS that is presently before the Tribunal and the various discrepancies were not known to the VETASSESS assessor when the applicant and her employer were questioned about the employment and before the claims of her employment were accepted. In such circumstances, the Tribunal is of the view that any verification carried out by VETASSESS is of limited value and to be given minimal weight, if any.

19. The applicant submits that the company started its operation in 2009, is registered with the Federal Board of Revenue, has a National Tax Number and is a member of the Chamber of Commerce and Industry. In her post-hearing submission, the applicant provided a statement from the bank concerning the company’s bank account. The applicant states that her salary was determined by the company and is not in breach of any laws.

20. With respect to her Visitor visa applications, the applicant states that these were completed by her ex-husband who did not consult her when completing the forms, and she was unaware of their content. The applicant submits that the NOICC contains ‘unreasonable presumptions’, such as that the company did not exist.

21. The Tribunal considers the applicant’s submission unpersuasive. Firstly, there is no obvious reason why the applicant’s husband would claim the applicant was unemployed if she was in fact working for a number of years as she now claims. This is particularly so because when applying for the Visitor visas, the applicant would have to evidence her genuine intention to only visit Australia and therefore demonstrate ‘pull factors’ to show that she had links to Pakistan. The Tribunal does not accept the applicant, or her husband, would claim she was unemployed or a student when this was untrue, as this may have been detrimental to her application.

22. Secondly, the applicant is likely to have been required to sign the Visitor visa application form, and in this case, she would be aware that the application was being submitted on her behalf. The Tribunal does not accept the applicant was unaware of the content of the Visitor visa applications even if the forms were completed by another person. This is particularly so as the applicant now claims to have held a senior position in a company. If true, it is the Tribunal’s view that the applicant would be well aware of the importance of formal documentation such as visa application forms, and the Tribunal does not accept that she would allow another person to complete the paperwork without any involvement in the process and without being aware of the content of her own visa applications. The Tribunal does not accept the applicant would not have seen the forms and their content and that she was unfamiliar with the claims made in relation to her employment on the Visitor visa application forms. The fact that the applicant claimed to be unemployed or referred to different employment in her Visitor visa applications, when she had nothing to gain by stating she was unemployed or by referring to other employment (as opposed to the Skilled visa application when her employment was crucial to her eligibility for the visa) suggests to the Tribunal that the information in the Visitor visa application forms is more truthful and more reliable than the information in the Skilled visa application.

23. Notably, the applicant’s evidence to the Tribunal is entirely different. In oral evidence, the applicant told the Tribunal that she married in 2009 and after a while, her husband became jobless. He was an orthodox, dominating and controlling person and she could not share these problems with others. (The evidence from the applicant’s brother supports these claims.) The applicant told the Tribunal that her brother suggested that she should travel to Australia and initially her husband did not allow her to go but later agreed. The applicant states that her husband filled in her application form and wanted to come to Australia as well, but her brother did not have the finances to support him. The applicant claims that she knew that her husband gave the incorrect information on the forms, but she was under pressure from her husband to sign. The Tribunal considers it significant that the explanation given by the applicant in her oral evidence to the Tribunal is entirely different from the information the applicant gave in her declaration of 8 March 2020, which she presented to the Tribunal, in which the applicant claimed that her dominating husband completed the forms and that she was unaware of their content.

24. In her written submission of 20 September 2021, the applicant refers to her poor mental state due to the failed marriage and she states that her mental state affected her emotional and ‘thinking process’. That evidence would suggest that the applicant was aware, and had some involvement in the provision of, what she now claims to be incorrect information in the Visitor visa application. Otherwise, it is difficult to see how her emotional state and well-being affected the provision of incorrect answers by her then husband, particularly if the applicant was unaware of the information being submitted.

25. The Tribunal found the applicant’s evidence on that issue confused. The applicant initially stated that her husband did not wish her to travel to Australia (which does not explain why he would complete the forms on her behalf and assist her with the process) and she then claimed that her husband agreed for her to travel to Australia once she threatened him that she would give up her job. If he did agree to the applicant’s travel, there would appear to be no purpose for him to complete the form in a way that may result in visa refusal due to claiming she was unemployed rather than refer to the genuine employment.

26. In her submission to the Tribunal of 20 September 2021, the applicant also claims that the first Visitor visa application was prepared by her husband, she was not sure if she would continue with the company and due to her failing marriage, she was confused and on medication for depression and was too young. It is unclear to the Tribunal how the applicant’s age or marital issues would affect the information in the Visitor visa application. With respect to her second Visitor visa application, the applicant claims that she was only working at the bank for a short period and on a part-time basis and did not think that job was relevant to her skills assessment, so she did not mention it. The Tribunal does not accept that explanation. As noted above, the application form required the applicant to list all of her employment, not only employment that she considered to be relevant. Further, when the applicant claims to be employed on a full-time basis at one company, her simultaneous employment at another company is highly relevant. The Tribunal does not accept that the applicant would not mention the second employment as irrelevant.

27. The Tribunal has formed the view that the applicant has not been truthful in her evidence explaining the discrepancies in employment claims made in the Visitor visa and in the Skilled visa applications.

28. Thirdly, and importantly, the Tribunal notes the information the applicant gave in her IPCs. This was the information provided by the applicant herself and not her husband or another person. (The applicant confirmed to the Tribunal that her husband did not travel with her.) In her IPCs the applicant did refer to different employment or unemployment rather than her claimed employment at Orison. The applicant told the Tribunal that due to the passage of time, she could not recall what information she gave in the IPCs, but that information is set out in the primary decision record and the Tribunal accepts that evidence as accurate. The applicant’s forgetfulness does not explain why the applicant would refer to the entirely different employment in the IPCs and not her employment at Orison at the time of her travel, which coincided with the time of her claimed employment stated on the Skilled visa application, which is relevant to the present circumstances.

29. The Tribunal is of the view that if the applicant did genuinely work at Orison on a full-time basis (and at the bank on a part-time basis only, as she now claims), she would refer to her employment at Orison on the IPC rather than her employment at the bank in the second IPC, and would not state that she was a student in the first IPC. In the Tribunal’s view, information in the Visitor visa applications and IPCs offers strong evidence that the applicant was not employed at Orison as claimed but held other positions as stated in the Visitor visa applications and the IPCs.

30. The Tribunal also places weight on other deficiencies as set out in the primary decision record. Thus, the Orison website appears not to have been operational before 2017, even though the applicant claims she had been working in that company for many years prior to that time. The Tribunal acknowledges the applicant’s evidence that the internet is not widely used in Pakistan and the company preferred personal contact to the internet, but does not consider these explanations persuasive. In the Tribunal’s view, if the company was indifferent about internet presence, there would be little purpose in creating the internet presence and, conversely, if the internet presence was created, there appears to be little point in not maintaining it. The Tribunal also places weight on the fact that the Linkedin and Facebook links on the letterhead appear to be invalid according to the investigations set out in the primary decision record. Again, while the Tribunal acknowledges the applicant’s evidence that these platforms may not be much in use in Pakistan, the Tribunal does not accept that a business would specify these links on the website when the links would be non-operational. That is, if the Linkedin and Facebook platforms were not popular or were not in use, there was no reason to include these links on the letterhead and certainly no reason to refer to the non-operational links on the letterhead. The fact that the letterhead contained reference to the non-operational links also offers a strong indication, in the Tribunal’s view, that the applicant’s employment documents were bogus documents, and that the applicant did not work for the company during the period claimed.

1. The Tribunal is also concerned with the applicant’s salary, which appears to be significantly below the average salary or the expected salary for someone with the claimed level of experience. The Tribunal accepts the applicant’s claim that salaries are set by the employer and a low salary is not contrary to the law, and her evidence to the Tribunal that due to high unemployment in Pakistan, she stayed in the same job. Nevertheless, the Tribunal considers it highly unlikely that the applicant would be offered a salary at such a low level if she did have the level of experience as she claimed. While that issue in itself would not be of significant concern to the Tribunal, when considered in combination with the other concerns, the Tribunal is of the view that the applicant’s claimed low salary indicates that the applicant did not work at Orison as claimed and that the claim of low salary was only made to avoid presenting taxation documents in support of the visa application.

2. The Tribunal notes that in support of her second Visitor visa application, the applicant presented a statement confirming her employment in a bank. When questioned about it, the applicant told the Tribunal that she worked at the bank part-time on Fridays and Saturdays and at Orison full-time Monday to Friday. However, the applicant confirmed in her oral evidence to the Tribunal that she did not mention that employment at the bank in her Skilled visa application and in her VETASSESS application. The applicant told the Tribunal that she believed she could get the visa on the basis of her employment at Orison and did not think she needed to mention the employment at the bank, but the Tribunal is mindful that the application forms require an applicant to mention all employment, not only employment that the applicant considers relevant. The Tribunal also considers employment at the bank to be relevant, as it may have affected the assessment of the applicant’s employment at Orison, including the hours of employment and the nature and duration of such employment. The fact that the applicant now claims she did work in a second job while working full-time at Orison, but failed to mention that employment in the visa application and in the skills assessment application indicates that the applicant gave incorrect answers in her application forms in relation to her employment (which in itself would be in breach of s 101 of the Act). That supports the Tribunal’s view that the applicant is not a person of credibility and that she is willing to provide incorrect or inaccurate information in her dealings with the Department and other authorities.

3. The Tribunal notes that the Orison website at present contains the applicant’s name as the Customer Service Manager ( The applicant told the Tribunal that she had formally resigned from that job in May 2019. The applicant’s submission to the Tribunal is that in Pakistan companies do not have the resources to update information and websites are not generally used and of no interest. As noted above, the Tribunal considers that explanation to be inconsistent with the fact that the company made the decision to create the website and provide the applicant’s details when she was employed there. The Tribunal does not accept the applicant’s claim that websites are of no interest and little used in Pakistan. The Tribunal considers it implausible that if the company was active and its website operational, it would not be updated for over two and a half years in circumstances where the company is likely to have hired another person to perform the applicant’s role. The fact that the website contains incorrect information about the applicant’s ongoing employment supports the Tribunal’s concerns that the varied evidence of employment was created to assist the applicant rather than as a true reflection of the applicant’s employment. Importantly, the fact that clearly incorrect information appears on the company’s website brings into question the veracity and probative value of the various documents issued by the company, including the applicant’s employment documents. Coupled with the applicant’s claims that the company issued her with inaccurate or incorrect payslips (and on 4 October 2021 the applicant provided to the Tribunal a statement from the company referring to the ‘mistakes’), the Tribunal is of the view that the company issued documentary evidence is unreliable and of little probative value and should not be given any weight.

4. In her response to the NOICC the applicant provided a number of documents, including evidence of the company registration and her payslips and other materials. (The delegate notes that the company’s registration with the Chamber of Commerce lists a different address to what is listed on the company’s letterhead.) The applicant also presented documentary evidence to the Tribunal, including a letter from the company dated August 2020 confirming the applicant’s employment, character references and other materials, many of which the applicant previously presented to the delegate. The Tribunal has considered the documentary evidence but for the reasons stated above, the Tribunal has formed the view that documentary evidence issued by the company is of limited value. Given the discrepancies noted above, the Tribunal is of the view that if the applicant did not work for the company as claimed, but made arrangements for the preparation of employment documents, documents would be available to the applicant irrespective of her employment or engagement with the company.

5. The Tribunal has considered the evidence of Mr Ali, who claims to be a customer of the applicant. He claims to have known the applicant from May 2014 to 2016 through business dealings. Mr Ali stated that the applicant was his main point of contact from Orison, and he had no contact with other customer service representatives of that company. The Tribunal considers this odd, given the applicant’s claimed role as a manager of the customer service department with up to eight staff working under her. If that was the case, the Tribunal considers it unlikely (albeit possible) that Mr Ali would have no dealings with any other customer service representative or any other person at Orison over the period of two years and he would be unable to name anyone other than the applicant. It may be that Mr Ali had no dealings with anyone else other than the applicant, but it may also be due to the fact that Mr Ali was not familiar with the company’s operations and the applicant asked him to give the evidence that he did. The Tribunal also notes that even if the entirety of Mr Ali’s evidence is accepted, it may confirm the applicant’s employment but not the nature, duration or the hours of the applicant’s employment. As such, the Tribunal does not consider that Mr Ali’s evidence supports the applicant’s claimed employment, and it does not overcome the Tribunal’s concerns noted elsewhere.

6. The Tribunal has also considered the evidence of Mr Wahab, the executive director/owner of Orison International, which was broadly consistent with the evidence of the applicant. Unfortunately, due to technical difficulties and the witness’ unavailability, the Tribunal was unable to take oral evidence from Mr Wahab at the same time as the applicant’s and several weeks passed from the time the applicant gave evidence and when Mr Wahab gave evidence, and in such circumstances, the Tribunal cannot exclude a level of collaboration. In any case, Mr Wahab’s evidence does not overcome the Tribunal’s significant concerns set out in this decision. The applicant also presented with her response to the NOICC a number of character references. The Tribunal acknowledges these and accepts that those who prepared the references believe the applicant to be a good person, but this does not assist the Tribunal with determining the nature of the applicant’s employment.

7. The applicant claims that she provided evidence of the company’s operations, including GST and registration and taxation records, showing that the company was operational and registered with the Chamber of Commerce. The Tribunal acknowledges that evidence. Generally, the Tribunal is prepared to accept that the company did operate, given the independent evidence such as registration and taxation records, but the Tribunal is not satisfied the company operated for the duration of the applicant’s claimed employment between 2009 and the time of application, given the issues with its website, and LinkedIn and Facebook profiles, as outlined above. Further, the Tribunal’s concern is with the nature and duration of the applicant’s employment in that company.

8. The Tribunal’s concerns with respect to the applicant’s employment are outlined above. The Tribunal has found much of the applicant’s explanations unpersuasive. Importantly, the applicant has not explained to the satisfaction of the Tribunal the discrepancies between the employment evidence she gave in her Skilled visa application and her Visitor visa applications and the IPCs, and the Tribunal does not consider that the evidence in the Skilled visa application should be given preference to the other evidence. The Tribunal has also formed the view that the applicant is not a person of credibility because she has given inconsistent evidence in relation to the Visitor visa information and the IPCs.

9. Having regard to all these concerns, the Tribunal has formed the view that the applicant did not work at Orison International as claimed. It may be that the applicant did have some engagement with the company, but it was not of the nature described in the various employment documents. That is, the Tribunal has formed the view that the applicant was not employed in that company on a full-time basis, in the various positions described in the application form, from 2009. The Tribunal finds that by referring to such employment in the application form, the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal further finds that by failing to refer to her employment at Soneri bank, the applicant answered the question on the form (relating to her employment) in a way that incorrect answers were given or provided. This is, in the Tribunal’s view, a separate breach of s 101 irrespective of the applicant’s employment at Orison. The Tribunal finds that the applicant completed the application form in a way that incorrect answers (in relation to her employment) were given or provided. The Tribunal finds there was non-compliance with s 101 of the Act.

10. The Tribunal further finds that the skills assessment issued by VETASESS was a bogus document. The primary decision record indicates that the assessment was issued on the basis of the applicant’s formal qualifications and employment. The Tribunal finds it was obtained because of a false or misleading statement concerning the applicant’s employment at Orison and her failure to mention contemporaneous employment at the bank. The Tribunal finds the applicant gave a bogus document, being the VETASSESS assessment, and that she did not comply with s 103 of the Act.

11. For these reasons, the Tribunal finds that there was non-compliance with ss 101 and 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?          

12. 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).

13. 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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth). They are:

    The correct information

14. The applicant claims that the information about her employment was correct. The Tribunal has formed the view that the applicant did not work at Orison International as claimed and the correct information would not show the applicant’s employment at Orison between 2009 and the date of the application, and in the positions set out in the application form. The Tribunal further finds that the correct information is that the applicant worked for Soneri bank in the period of her claimed employment at Orison and that employment at the bank was not mentioned in the application.

    The content of the genuine document (if any)

15. The applicant submits that she had submitted evidence that Orison does exist and that she had worked with them. The applicant refers to the documentary evidence of her employment. For the reasons stated above, the Tribunal has formed the view that the applicant did not work at Orison as claimed (that is, for the entire period between 2009 and the time of application, on a full-time basis, and in the positions claimed). The genuine documents would not show such employment.

    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

16. Clause 489.224 required the applicant to achieve a particular score, which is calculated by reference to a variety of factors including employment. Information in the primary decision record indicates that the applicant relied on her employment at Orison International and claimed points for that employment. The Tribunal has formed the view that the applicant did not work at Orison as claimed. As the applicant’s employment was relevant to the allocation of points, and the positive skills assessment was required for the visa grant and was based on her employment, the Tribunal finds that the decision to grant the visa was based, in part but to a significant degree, on incorrect information and bogus documents.

17. Further, cl 489.222 requires the applicant to obtain a skills assessment. The primary decision record indicates that the applicant presented with her application a VETASSESS skills assessment, which was issued on the basis of her formal qualification and work experience. The Tribunal has formed the view that the applicant’s claimed employment was misleading because she did not work at Orison as claimed and also because on her own evidence, she failed to mention her employment at the bank during the claimed period of employment at Orison. The Tribunal has formed the view that the VETASSESS assessment is a bogus document and the applicant relied on that document to meet cl 489.222. For that reason also, the Tribunal finds that the decision to grant the visa was based on a bogus document.

    The circumstances in which the non-compliance occurred

18. The applicant denies there was any non-compliance, but for the reasons stated above, the Tribunal has formed the view that there was non-compliance with ss 101 and 103 of the Act. The applicant refers to her past trauma and the relationship with her first husband. The Tribunal is of the view, however, that the applicant’s personal relationship (and the Tribunal has not assessed the veracity of the applicant’s claims in that respect, noting the Tribunal’s view that the applicant has been untruthful with respect to at least some of her evidence) does not justify the provision of incorrect information or the bogus documents.

    The present circumstances of the visa holder

19. The applicant has been residing in Australia with her partner since July 2019. She claims that due to her relationship with her first husband, she cannot return to Pakistan and she is afraid of her former husband. These claims are addressed in more detail below. The Tribunal notes that the visa in question is a temporary visa only, which will not allow the applicant to remain in Australia permanently. The Tribunal acknowledges that the cancellation of the temporary visa may limit the applicant’s options in seeking certain types of permanent visas onshore and may result in an exclusion period in relation to future offshore applications, but the Tribunal is of the view that until the applicant has been granted a permanent visa, there can be no expectation that she would be able to live in Australia permanently and that she would not need to return to Pakistan. The applicant has not been granted a permanent visa, has not applied for one, and her eligibility for a permanent visa had never been assessed. In such circumstances, the Tribunal has formed the view that the applicant’s claim that she is unwilling to return to Pakistan is very premature.

20. The applicant told the Tribunal that she has been working in aged care as a personal care assistant and in her post-hearing submission she provided a statement outlining her employment responsibilities. The applicant refers to the presence of her brother in Australia and states that her brother is a permanent resident of Australia. The applicant’s brother also gave oral evidence to the Tribunal. The Tribunal accepts that evidence and accepts that the applicant has employment, personal and family ties in Australia. As noted above, the Tribunal also places weight on the fact that the visa in question is a temporary visa only.

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

21. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

23. The application was made in October 2018 and a little over three years passed since the non-compliance. The Tribunal does not consider this to be a lengthy period.

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

24. There are no known breaches of the law.

    Any contribution made by the holder to the community

25. The applicant refers to her employment in aged care and the Tribunal accepts the applicant contributes to the community through her employment.

26. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual, PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140

27. The visa held by the applicant’s partner would be subject to the consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

28. There are no children who would be affected by the cancelation of the visa.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations

29. The applicant states that she divorced her first husband, and she is concerned that if she has to return to her home country, she will “enter the same situation”. The applicant states that her ex-husband has political and other connections, and she is concerned that he would harm her because of the divorce. The applicant states that she does not wish to return to Pakistan where she would be subjected to family violence. The applicant’s spouse and her brother gave the same evidence, referring to the applicant’s circumstances in her first marriage and the ex-husband’s power and political connections. The applicant’s spouse stated that they are fearful of returning to Pakistan. The Tribunal has considerable difficulty accepting that evidence. Firstly, the Tribunal notes that the applicant presented no evidence of any harm she had experienced from her ex-husband in the past (such as, for example, police reports, statements from witnesses or third parties). She presented no evidence to indicate that she remains of any interest to the ex-husband, given that the relationship has ended and the applicant has remarried, and no evidence that the ex-husband has any intention to harm the applicant (for example, evidence of any threats received or complaints made). The applicant presented no evidence of any connections that she claims her ex-husband has. Secondly, the Tribunal is mindful that the applicant does not appear to have raised these issues in her multiple submissions to the delegate and the Tribunal prior to the hearing. The applicant and her partner explained that they previously concentrated on the allegations and not on other issues but the Tribunal notes that the applicant was given the opportunity to address the discretionary considerations in response to the NOICC and she made several written submissions to the delegate and the Tribunal and was represented during the review. The fact that this issue is raised for the first time at the Tribunal hearings suggests to the Tribunal that it is a recent invention.

1. The Tribunal does not accept the applicant’s claims without any supporting probative evidence and given the Tribunal’s findings made above that the applicant is not a person of credibility. The Tribunal does not accept on the evidence before it that the applicant would experience any harm from her ex-husband if she was to return to Pakistan and the Tribunal does not accept that the applicant is genuinely fearful of any such harm.

2. The Tribunal is also mindful that the applicant has the option of seeking protection in Australia if she is genuinely fearful of returning to Pakistan. The applicant’s claims would be assessed through that process and if it was determined that the applicant is owed protection, she may be granted the appropriate visa. In these circumstances, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

3. If the applicant’s visa is cancelled, and if she is not granted another visa, the applicant will become an unlawful non-citizen and may be detained and removed from Australia. The applicant can make applications for certain visas in Australia without Ministerial intervention, but she would have limited opportunities to do so. The applicant can make applications for visas offshore and may be subject to an exclusion period in relation to some such applications. The cancellation of the temporary visa may affect the applicant’s eligibility for certain permanent visas.

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

4. The applicant refers to the constant stress she suffers as a result of her visa cancellation and also due to COVID-19. The Tribunal accepts that the applicant may find the situation stressful. The Tribunal also accepts that some hardship would be caused by the cancellation, primarily because it may affect the applicant’s visa options and possibly her opportunities of remaining in Australia.  

5. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s answers in relation to her employment were incorrect and also that she gave bogus documents in support of her visa application. The Tribunal found that the applicant did not comply with s 101 and s 103 of the Act and that there are grounds for cancelling the visa.

6. The Tribunal accepts that the cancellation of the visa would cause some hardship to the applicant and her family. In particular, the Tribunal accepts that the applicant may not be able to seek certain permanent visas onshore as a result of the cancellation of her temporary visa and that a consequence of the cancellation may be the applicant’s departure from Australia. (Although the Tribunal finds that the cancellation of the visa need not equate to the applicant being required to leave the country.) The Tribunal accepts that the applicant and her partner prefer to remain in Australia and that both have settled in this country and have formed employment and social ties, and the applicant’s brother also lives in Australia. The Tribunal acknowledges that the cancellation of the applicant’s visa would also lead to the cancellation of the visa held by her husband. The Tribunal accepts that the hardship caused by the cancellation of the visa weighs against the cancellation.

7. The Tribunal acknowledges that the applicant has made some contribution to the community. She has lived in Australia for over two years, and although this is not a significant period, the Tribunal has accepted that the applicant has formed ties in this country.

8. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations. The Tribunal has also found that a relatively short period has passed since the non-compliance.

9. In the circumstances of this case, the Tribunal has decided to place greater weight on the fact that the decision to grant the visa was based on incorrect information and a bogus document. As noted above, the applicant was required to meet several criteria to which her employment was relevant, including the allocation of points and the presentation of a skills assessment. The applicant’s claimed employment was therefore highly significant to the assessment of her eligibility for the visa and the decision to grant her the visa, and that information was incorrect. Having considered the totality of the applicant’s circumstances, and while acknowledging that there are several factors that are against the cancellation, the Tribunal has determined that the factors that favour the cancellation outweigh those that are against the cancellation.

10. 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

11. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

12. The Tribunal has no jurisdiction with respect to the other applicant.

    Kira Raif
    Senior Member