Hassan (Migration)

[2022] AATA 411

Hassan (Migration) [2022] AATA 411 (16 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Adeel Hassan
Mrs Noureen Zahra
Master Muhammad Shazil Mehdi
Miss Rijja Fatima

CASE NUMBER:  2108983

HOME AFFAIRS REFERENCE(S):          BCC2019/3905526

MEMBER:Kira Raif

DATE:16 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

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

Statement made on 16 February 2022 at 11:46am

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 Skilled – Regional (Provisional) – incorrect answers with the visa application – employment history – investigation concerning the applicant’s previous employer – bogus employment documents – evidence of company operations – family hardship – cancellation power does not arise – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5, 97 – 105, 107 – 109, 116, 119, 140
Migration Regulations 1994

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 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 applicants were granted the Skilled Regional (Provisional) visas in March 2019. In May 2021 the applicants were issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view the first named applicant (the applicant) did not comply with ss.101 and 103 of the Act. the applicant provided his response to the NOICC and his visa was cancelled. The applicants seek 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 visas were 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 applicants.

4. The applicants appeared before the Tribunal on 16 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. 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. 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. It indicates that the applicant made the application for the Skilled – Regional (Provisional) visa on 22 October 2018, nominated by the South Australian government. The applicant had nominated the occupation of Software Engineer in his application. The application included the applicant’s partner and two children.

11. With respect to his employment, the applicant provided the following information:

    09/05 – 08/09  Assistant Software Engineer, Pro IT City (Pakistan)
    08/09 – 08/11  Software Engineer, Pro IT City
    09/11 – 08/12  Software Engineer, Pro IT City
    Aug 12 – application         Senior Software Engineer, Pro IT City

12. The applicant claimed points for his employment from September 2011 and stated on the application form that he had been employed in the nominated occupation, or a closely related one, for 5 years in the past 10 years.

13. In support of his claimed employment, the applicant provided a number of documents, including

    a.an employment experience letter signed by Hadi Raza, an Operational Partner at Pro IT City, dated 30 July 2018, confirming the above employment,

    b.salary and tax letter issued by the Accounts Department of Pro IT City on 12 October 2018. The letter states that the applicant was paid in cash and that his income was below the tax threshold level, so no tax was deducted,

    c.monthly payslips issued by IT Pro City for the period from August 2011 to September 2018, with the salary increasing from 22,000 PKR to 29,000 PKR.

    d.Payroll summary issued by the Accounts Department of Pro IT City in October 2018 setting out the applicant’s monthly salary between 2005 and 2018,

    e.A copy of the ACS skills assessment for the occupation of Software Engineer. It states that the applicants’ employment at Pro IT City from August 2011 was considered at an appropriately skilled level.

14. The applicants were granted the Skilled visa on 16 March 2019 and travelled to Australia in August 2019.

15. Following the visa grant, it appears that the Department carried out an investigation concerning the applicant’s employment. The primary decision record indicates the following information:

    a.The payslips record the date of issue, showing all of these were issued between September 2011 and October 2018. All payslips have a reference to the business website ( but the domain search indicates that the website was only created in February 2017. The delegate concluded that the inclusion of the website on the payslips issued between September 2011 and January 2017 indicates that the payslips were not genuinely issued by Pro IT City on the purported dates,

    b.the delegate considered it implausible that the Pro IT City – which is a digital marketing company – would operate without its own website from the time of its commencement,

    c.the Facebook account for the company shows it was created in 2008 and the delegate considered it implausible that the company would not create its Facebook from the time it commenced operations, at least in 2005,

    d.the website shows that the company’s head office was located in the US and a sales office in the UK and there was no information on the website that the company had any other office. The delegate considered it inconsistent with the information on the payslips and other documents showing a Pakistani business address,

    e.the company website included a link to the business Facebook page ( The Page Transparency entry states that the Facebook page was created in February 2013 under the name of PRO Business Corporation and changed to Pro IT City in July 2017. It includes a map of an office in the UK and makes no reference to an office in Pakistan. The delegate concluded that  the business operated under a different name prior to July 2017, so that the payslips issued between September 2011 and June 2017 – which refer to the business name of Pro IT City - were not genuine documents,

    f.an open source check for the address listed on the supporting documents (Ferosepur Road, Lahore) links to a Facebook page PRO IT City. The Page Transparency entry for that company shows that the page was created in February 2017 and there are no posts after the initial one in February 2017. The page refers to the business located in Pakistan and makes no reference to the business in the UK or the US.

    g.The business located in Pakistan has a LinkedIn profile page. It lists four employees, none of whom were employed prior to March 2017. One of the employees is declared as Mr Faraz Arif, who claimed  to be a managing partner and founder of Pro IT City. He claims his employment with the company commenced in March 2017, which would suggest the company started operations at that time.

16. The delegate concluded that the applicant did not comply with s. 103 of the Act because the various documents provided in support of the applicant’s employment – including payslips, the salary letter, the work experience letter, salary and tax letter and the payroll summary – are bogus documents. The delegate also found that the applicant did not comply with s. 101 of the Act by claiming to have been employed with Pro IT City from September 2005.

17. In his response to the NOICC the applicant confirms that he started working for Pro IT City in September 2005 as a ‘trainee / assistant’ while undertaking university study and he was able to work flexible hours. Once he completed his study in 2009, he was offered the position of Software Engineer and his employment was confirmed by his employer and accepted by ACS.

18. With respect to payslips, the applicant states that in 2005 the company did not have the electronic payment software, so he was paid in cash and given manual salary slips. He recorded the receipt of the salary in the accounts book and never kept his payslips (although he had ‘found’ some and provided these in response to the NOICC). Later he was given computerised payslips. When he applied for the visa, he asked the accountant to provide him with payslips from their records and these were re-issued using the current business software, which had the business website and email. In oral evidence, the applicant also told the Tribunal that he was only given paper payslips and not electronic payslips and he never kept the payslips as he did not think he would need these. The applicant notes that he did provide some paper slips to the Department but these were not accepted. When he needed to provide the payslips, he asked the accountant to backdate the payslips from the company’s records. The Tribunal is mindful that none of the payslips show that these are duplicates or that they were issued around the time the applicant was making his visa application. Rather, they were submitted as original documents. In that regard, the Tribunal considers the payslips are misleading (although it does not appear that these can be classified as bogus documents within the meaning of s. 5 of the Act).

19. With respect to the website and Facebook records, the applicant states that the business was started in 2005 by Zaheer Akhtar and Ali Raza and at the time the business provided custom made inventory and accounting software and there was no concept of online social media marketing as a way to approach clients, so the business did not have a website at first. The applicant told the Tribunal that in 2005 when the business started, internet was not commonly used in Pakistan and the business had no website and did marketing by direct approach. In about 2010 there was a demand for marketing and Hadi Raza joined the company, suggesting it be expanded to the international customers. At that  time they also started the website. At that time Hadi Raza started a ‘sister concern’, Pro Business Corporation which only targeted the international market and for that purpose, he showed officers in the UK and US. The applicant states that the owners were located in Pakistan and all the tasks were completed there but international customers preferred to deal with business in their country, so there is no Pakistan address on the website or social media. The applicant notes that the LinkedIn page of Pro Busines Corporation still exists and shows it was created in 2010 but at the time they already had 5 years experience. The applicant states that in Pakistan it is not necessary to register a business operation immediately.

20. The applicant told the Tribunal that from 2005 the company was only small. From 2010 they decided to expand and get international clients and they thought they could not attract international clients if they were seen as operating in Pakistan. The applicant’s evidence suggests that the LinkedIn and Facebook information was not accurate about the company’s presence in Europe and place of operations and for that reason, the Tribunal considers that the online reference to the company operating from 2005 is equally unreliable.

21. The applicant states that in 2013 the company was expanding and Hadi Raza created a Facebook page and website for Pro Business Corporation and in 2017 Pro Business merged with Pro IT City. Faraz Arif joined at that time and called himself a founder. The applicant explains that there was a partnership agreement between them. The applicant states that the Facebook page changed from Pro Business Corporation to Pro IT City and the business and web domain were legally registered in 2017 only for the international market but all projects were completed in Pakistan. The applicant told the Tribunal that the business was registered in the UK and has grown sufficiently to be taken to the stock exchange, which would not have been possible if the company was only operating from 2017.

22. The applicant states that he was hired by Pro IT City and was always paid by them and was always working for them because Pro Business Corporation was created for international clients only. The applicant states that he was always paid in cash and was only concerned with earning money to support his family. As his salary was under taxable threshold, he could not provide taxation receipts.

23. With his NOICC response the applicant provided additional documents, including

    a.Evidence of his study at Al-Rahim College (IT courses) and Superior College (BBA)

    b.An affidavit from the applicant, signed in March 2018, in which he confirms the above information about his employment for Pro IT City,

    c.A letter from Mr Hadi Reza, CEO of Pro IT City confirming the applicant’s employment from 2005,

    d.Domain history checker for Pro Business registration confirming it was created in February 2013,

    e.LinkedIn profile for Pro Business Corporation showing it was founded in 2010 and completed several projects,

    f.Company registration for Pro IT City dated March 2017, and a certificate of incorporation issued in Scotland in relation to Pro IT City in 2019,

    g.a screenshot from Pro IT City website referring to the company’s operations from 2005

    h.journal entries referring to the cash payments made to the applicant in September 2007 and November 2010,

    i.a letter from Hadi Raza Sheikh and Faraz Arif confirming the applicant’s claimed employment.

24. The delegate noted that

    a.the applicant provided evidence of having completed his IT courses by September 2005, contrary to his claims that he was working for Pro IT full-time and studying part-time

    b.the delegate considered it odd that the applicant would commence a BBA course, which was unrelated to, and unnecessary for, his work in IT, when he claims to have been working 48 hours a week at a Software engineer. The applicant explained to the Tribunal that he could not afford to do the IT course, so he chose a business course, which was the cheapest available. While doing the course, he saw the ad from Pro IT City and got the job where he initially learned basic things. (the applicant epxalins that a business course was the cheapest and that is the reason he chose it.)

    c.the employment letter provided by Pro IT City indicated that the applicant worked on average 48 hours a week and the employment contract which the applicant provided with his application showed that his normal working hours were 10 am to 6 pm  Monday to Saturday. The delegate thus rejected the applicant’s evidence that he made up for hours which he took to study by working on Saturdays, noting that Saturdays was his normal working day. The applicant explains to the Tribunal that  most of his classes were evening classes and he used to attend college after work, as the college was close to work. the applicant states that there were not many assignments outside of classroom work and he was able to do both his work and his study. The applicant states that there is no financial support to study and so it is common in Pakistan to study and work several jobs.

    d.the delegate did not accept that the applicant would be offered a promotion to become a Software Engineer upon completion of BBA, as that course would not have been relevant to the work of software engineer. (The applicant’s evidence to the Tribunal is that the promotion was based on his experience and the fact that upon completion of studies, he was available longer hours, so the promotion was not based on his completion of the Business course.)

    e.The delegate considered it unlikely that the applicant could be employed full-time by Pro IT City and also study for 15-20 hours a week at university (not including research, assignments, etc). The delegate notes that the applicant’s transcript did not show that the applicant studied part-time, only that he attended evening classes.

    f.The applicant claims that his explanations and documents had been accepted by ACS and should therefore be accepted by the Department (and presumably, the Tribunal). The Tribunal does not accept that argument because it is not satisfied that the full information – including the concerns set out in the NOICC – had been before the ACS when its assessment was made.

    g.The delegate noted that the applicant presented payslips as actual payslips received between 2011 and 2018, on the dates recorded on these documents. The applicant never indicated that these were not original documents, nor that they had been re-issued or copies. The delegate noted that it was possible that in 2018 the payslips were simply manufactured to support the applicant’s claimed employment.

    h.The applicant claimed to have been receiving electronic payslips later in his employment and the delegate considered it unlikely that these could not have been re-issued, rather than manufactured afresh.

    i.The two journal receipts which the applicant presented with the NOICC response as contemporaneous evidence of payment did not state the name of the business and appear to have been issued using generic stationery and the delegate did not consider these to be reliable evidence of the applicant’s payments.

    j.The delegate notes that the applicant did not provide independent and verifiable evidence to support his claimed relationship between Pro IT City and Pro Business Corporation. The delegate notes that  LinkedIn profile claims that the company had offices in various countries while the applicant claims that information was untrue. As such, the delegate conclude that other LinkedIn information about the company was unreliable. The delegate noted that the screenshot for Pro IT city did not show the URL or a date when it was captured and it was not possible to determine which company it related to.

1. The applicant provided a further written submission and evidence to the Tribunal on 31 January 2022. The applicant provided an LinkedIn extract for ProBusiness Corporation which refers to the company being founded in 2010. There is an extract from the Register of Firms for Pro IT City for the year 2016-17 and a certificate of incorporation for 2019, receipts and other documents relating to the company’s operations in the earlier years, and other documents, including an employment reference for the applicant from Pro IT City dated May 2021 and evidence of his study.

2. In his written submission to the Tribunal the applicant largely repeated his earlier submissions. The Tribunal has had regard to that submission, as well as documentary evidence presented to the Tribunal.

3. In oral evidence, the applicant explained that he obtained the job while he was still at university and he saw the company’s advertisement. The applicant states that he has no siblings so he was responsible for supporting his parents and was only interested in getting paid, not in the company’s marketing or websites and had no control over these things. The Tribunal discussed with the applicant the concerns set out above and the applicant provided detailed explanations with respect to each of these issues, which were consistent with his written submissions.

4. The Tribunal notes that there is substantial amount of evidence of the applicant’s employment that was submitted with the application and additional evidence is before the Tribunal. The Tribunal has formed the view that the applicant was truthful in his evidence concerning his employment. The Tribunal is also of the view that most of the issues that formed the basis of the delegate’s decision have been satisfactorily explained by the applicant in his written and oral evidence and the Tribunal generally accepts the explanations offered by the applicant.

5. 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.

6. 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. In this case, the consequences if the visa is cancelled are serious as the applicant would be precluded from seeking a permanent visa in Australia and he explained to the Tribunal the hardship his family would face if required to return to Pakistan.

7. The Tribunal has formed the view that the concerns raised as part of the Departmental investigations have been answered satisfactorily by the applicant. In the circumstances, the Tribunal is not satisfied that the applicant completed the application form in a way that incorrect answers were given or provided and the Tribunal is not satisfied the applicant gave bogus documents with his application. 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

8. 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

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

10. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    Senior Member