HAMRANG (Migration)

[2020] AATA 506

HAMRANG (Migration) [2020] AATA 506 (17 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hassan HAMRANG

CASE NUMBER:  1803262

DIBP REFERENCE(S):  BCC2017/431724

MEMBER:Kira Raif

DATE:17 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 -  Skilled - Nominated visa.

Statement made on 17 February 2020 at 12:18pm

CATCHWORDS

MIGRATION – cancellation – Skilled Nominated (Permanent) – Subclass 190 Skilled Nominated – bogus information – imposter used to sit IELTS – test deemed invalid – applicant cleared of wrong doings – lack of evidence to support breach – decision under review set aside  

LEGISLATION

Migration Act 1958 (Cth), ss 107, 109, 116, 119

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336

Zhao v MIMA [2000] FCA 1235

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 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Iran born in September 1978. He was granted a Class BN Skilled visa on 28 January 2015. On 28 November 2017 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 provided his response to the NOICC and his visa was cancelled on 31 January 2018. The applicant seeks review of the delegate’s decision.

3. The applicant provided a written submission to the Tribunal on 23 October 2018, one working day before the scheduled hearing. No explanation is offered by the applicant’s representative for the late submission of documents or for the failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The Tribunal is mindful that the application for review was lodged with the Tribunal in February 2018 and the applicant was represented by the same agent, Majd Visa, throughout the process. Due to the late submission of the applicant’s arguments and evidence, the Tribunal hearing was postponed.

4. The applicant appeared before the Tribunal on 31 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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. 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?

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 s. 101 and 103 of the Act.

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

    a.The applicant made the application for the Class BN Skilled visa on 16 October 2013 and signed the Application for Points Based Skilled Migration Visa.

    b.On page 13 of the application form the applicant was asked whether he had undertaken an English test within the last 36 months. The applicant stated ‘yes’.

    c.On page 13 of the application form the applicant was asked to give details of the most recent English test. The applicant stated

    Name of test  IELTS
    Date of test   18 July 2013
    Test reference number 13IR001663HAMH060A
    Language ability   competent

    d.The IELTS test report form (TRF) 13IR001663HAMH060A dated 18 July 2013 was submitted with the application. This contained the photograph of the candidate and the following information

    Centre number   IR060
    Centre name   Islamic Azad University
    Candidate number                 001663

    Family name  Hamrang
    First name  Hassan
    Candidate ID  491-063743-5
    Date of birth   23 September 1978
    Sex  male

    Writing examiner number      999015
    Speaking examiner number    990951
    Date of examination               18/07/13

    Test results
    Listening  6
    Reading   6
    Writing   6
    Speaking   8
    Overall band score                 6.5

    e.On 2 December 2016 the Department received information from the Islamic Azad University IELTS IAU that the visa holder used an imposter to sit the IELTS test for him on 18 July 2013.

11. In his written response to the NOICC the applicant states that he did not provide incorrect information or a bogus document in support of his visa application and claims that he did sit the IELTS test on 18 July 2013 and did not use an imposter. The applicant stated that when he received the NOICC, he contacted the AZAD University IELTS Centre but was advised that they do not have any record of sending information about him to the Australian authorities but requested more time to research their archives.

12. In his submission to the Tribunal of 23 October 2018 the applicant states that he answered all questions honestly and correctly when completing the application form and the documents he submitted were genuine and contained correct information. The delegate was satisfied with the evidence and the visa was granted. The applicant states that after receiving the NOICC, he engaged solicitors in Iran to contact various organisations. He states that Azad University initially denied sending any correspondence to IDP Education and said there was no record in their system showing anything abnormal about the letter. The applicant claims he was advised that if there was any correspondence, they would have a record of it. The applicant states that after months of communication it became apparent that IELTS did not send any correspondence to the Department in relation to this matter and had no knowledge of the matter and if there was any concern, they would have written directly to the Department or IDP Education and not to Azad University. The applicant was later advised by Azad University that this matter had nothing to do with them. The applicant contacted a representative of NOET and was advised that in late 2016 they were informed that another person acted as an imposter for the applicant in sitting the test on 18 July 2013. As they were not able to contact the applicant at the time, they contacted IDP Education in Australia requesting the cancellation of the IELTS results and lodged a case against the applicant in the local courts. They later realised it was a ‘misunderstanding’ and withdrew the case against the applicant and it was dismissed. The applicant requested NOET to issue a formal letter. NOET informed the applicant that they issued a letter withdrawing their allegations and clearing the applicant of any wrong doing and they would inform IDP Australia accordingly. The applicant states that the cancellation was based on incorrect information provided to IDP Education and it was therefore invalid. The applicant notes that he was never informed at the time of sitting the test that the results were not valid.

13. The Tribunal is mindful that the letter from IDP to the applicant states that they have no record in relation to the cancellation of the visa. It does not state that there is no record of any malpractice that led to the cancellation. As the primary responsibility of IDP is to conduct language tests and not to deal with visas, there is no obvious reason why IDP should have any records in relation to the cancellation of the applicant’s visa. Contrary to the applicant’s submission, however, the letter does not establish that IDP has no record of any wrongdoing.

14. The Tribunal forwarded the applicant’s claims to IDP Australia to verify the information. On 3 November 2018 the Tribunal received advice from IDP Australia confirming that

    a.NOET in Iran indicated to IDP that the applicant had used an imposter to sit the test, as a result of which his results were cancelled. The cancellation of the results was on the basis of a reasonable suspicion of malpractice in the testing.

    b.IDP has neither received, nor holds any information indicating that the report of the applicant using an imposter was incorrect. IDP received the applicant’s claims but do not have any material corroborating that assertion.

    c.The applicant’s test results are no longer valid.

15. The Tribunal wrote to the applicant pursuant to s. 359A of the Act seeking his comments and response to the above information. The applicant replied on 19 November 2018. The applicant agrees that the IELTS test results have been declared invalid in July 2016, before the cancellation of these by the IDP in 2016. The applicant states that at the time of his visa application, the test results were valid and the answers he provided on the form were truthful and accurate and he maintains that he did not mislead the Department and did not provide a bogus document. The Tribunal acknowledges that at the time of visa application the results were valid but that does not preclude the existence of the basis to cancel a visa where new information subsequently comes to light and where it is found in a subsequent investigation that an imposter completed the IELTS test.

16. The applicant states that he was not involved in the process leading to the cancellation and was not given an opportunity to respond to the allegation and is ignorant of the process leading to NOET finding. The Tribunal is of the view that the applicant has been given that opportunity throughout the visa cancellation process. The applicant states that he has not been provided with actual evidence of any wrongdoing beyond the assertion by NOET that an imposter was employed. The applicant notes that the cancellation of results was based on ‘reasonable suspicion of malpractice” which is not an adequate basis for making a positive finding that the applicant used an imposter to sit the exam, nor that he provided misleading information or a bogus document.

17. The applicant states that the passage of time between him sitting the IELTS exam and the allegations raise doubts about the veracity of the NOET conclusion. The applicant suggests that the NOET investigator was influenced by the applicant’s circumstances and relied on the lesser standards of reasonable suspicion to reach a negative conclusion. The Tribunal is of the view that there is no basis whatsoever for these assertions. The delay may have equally been the result of resourcing issues rather than any issue to which the applicant refers. There is no basis to suggest that the NOET investigator acted without due regard to all relevant evidence or that the investigator acted inappropriately in any way because of the applicant’s circumstances. The Tribunal rejects these submissions.

18. The applicant states that if there was any evidence to support NOET conclusion, he would have been given that evidence to respond to and the absence of procedural fairness undermines the credibility of the decision to cancel his results and the Tribunal’s reliance on that process. With respect, it is for this Tribunal to determine what weight to place on the evidence, including the NOET investigations. Even if the applicant was denied procedural fairness by NOET or IDP (the Tribunal makes no finding on the issue), that does not detract from the fact that there is power to cancel a visa if it is found that an applicant has not complied with certain provisions in the Act. The applicant does not suggest that he had been denied procedural fairness in relation to the visa cancellation process.

19. The applicant refutes the allegations that he used an imposter to sit the IELTS test and claims that he can provide evidence about the examinations he took at Azad University, as well as evidence of his English proficiency. The applicant refers to his study and employment in Australia, which he claims are consistent with him being proficient in English and capable of having done the IELTS exam himself without the need to employ an imposter. The Tribunal is mindful, however, that the applicant may have sat other tests at Azad University and he may well have done a test other than the one on which he relied in his visa application, so the applicant’s knowledge of the test procedures does not necessarily establish that he sat the test in question. Neither does the applicant’s subsequent study and employment. The issue here is not whether the applicant has proficient English (and the Tribunal is not satisfied it can be demonstrated by the applicant undertaking study or employment). The issue is whether the applicant undertook the particular test on 18 July 2013 and achieved the particular scores set out in the Test Report Form which he presented with his visa application.

20. In his submission to the Tribunal of 28 January 2019 the applicant provided evidence of his communication with the authorities in Iran and a copy of the Final Order of the Tehran Province Court of Law. The Order names the applicant as the plaintiff and Mr Ramin Davatgar as a defendant and refers to the charges of fraud and fraudulent use of name. The Order states that due to lack of satisfactory evidence, prosecution is prohibited. It is unclear how this document assists the applicant, given that the court appears to have found that here is no basis for the applicant’s allegation of fraud.

21. In April 2019 the Tribunal received advice from the overseas post that the authenticity of the document could not be confirmed but the test result was believed non-genuine. At the applicant’s request the Tribunal sought further verification of the test results. On 14 February 2020 the Tribunal received further advice from the overseas post. That advice states, essentially, that “there is no reliable report or evidence which can prove Mr Hassan Hamrang’s fraud in his IELTS exam.”

22. The Tribunal acknowledges that the verification does not positively exonerate the applicant and does not expressly indicate that he did sit the IELTS test. However, having regard to the investigation of the overseas post and the advice from the relevant agencies, the Tribunal does not consider that the information that formed the basis of the cancellation is sufficient to override other evidence submitted by the applicant.

23. In Zhao v MIMA [2000] FCA 1235 the Court stated at [25] and [32].

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

24. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

25. Having regard to the most recent advice, the Tribunal has formed the view that the information supplied by Azad University is not sufficient to lead to a positive satisfaction that the applicant used an imposter to sit the IELTS test. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Conclusion

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

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 -  Skilled - Nominated visa.

    Kira Raif
    Senior Member