Hussain and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 701
•22 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 701
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/1151
GENERAL ADMINISTRATIVE DIVISION ) Re SYED ZAKIR HUSSAIN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC (Deputy President) Date22 July 2005
PlaceMelbourne
Decision The Tribunal directs that the visa applicant’s visa application be remitted to the respondent with a direction that such application be assessed and determined on the basis that he is not a person who is not of good character within the meaning of s501 of the Migration Act 1958.
[the Hon C R Wright QC]
Deputy President
CATCHWORDS
Immigration – Application for skilled migrant visa – Visa applicant submitted 2 University of Karachi degree certificates as evidence of his qualifications. These were submitted for examination by University officials who declared them to be forged. Visa applicant produced evidence contradicting this assessment. University officials declared this material also to be false. University declined to make staff available to give evidence at AAT hearing. Expert evidence adduced by respondent inconclusive. Tribunal unable to be affirmatively satisfied that qualifications and supporting evidence were forged or false
Migration Act 1958 - s501(6)(c)(ii)
Minister for Immigration and Multicultural and Indigenous Affairs V Godley (Full Federal Court) (2005) FCAFC 10 (18 Feb 2005) applied
REASONS FOR DECISION
22 July 2005 The Hon C R Wright QC (Deputy President) 1. The visa applicant, Syed Zahid Hussain, a national of Pakistan, applied for a Class AJ Skilled Australian Linked (Migrant) visa on 26 November 1998. The application was originally refused on 23 November 1999 on the ground that he failed to meet the prescribed qualifying score. The visa applicant applied for review to the Migration Review Tribunal which set aside the primary decision and remitted the application to DIMIA on 10 January 2003.
2. Thereafter questions were raised as to the authenticity of degree certificates used by the visa applicant in support of his application, allegedly issued by the University of Karachi establishing that the visa applicant held the degrees of Bachelor of Science and Master of Arts. On 27 August 2003 the Minister’s delegate refused the visa application on the ground that the visa applicant failed to pass the character test as provided for in s501 of the Migration Act 1958 (“the Act”).
3. The delegate’s decision was based upon her assessment that the visa applicant had failed to establish that he was a person of good character having regard to his past and present general conduct under s501(6)(c)(ii) of the Act, in presenting bogus degrees in support of his migration application.
4. The visa applicant has now applied to the Administrative Appeals Tribunal to review the delegate’s decision. Having regard to the course taken by the hearing, which extended over several days, and the nature and quality of the evidence adduced, the decision of the Full Federal Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairsv Godley (2005) FCAFC 10 (18 February 2005), dealing with issues which arise when s501(6) is relied upon as a basis for visa refusal, is of particular importance in the present case.
5. The application to review was heard in Melbourne on 30 November 2004, 25 February 2005, 13 April 2005 and 15 June 2005. Oral evidence was received from the visa applicant (by telephone from Pakistan, with assistance from an interpreter), from Rayab Ali Sheikh, a compliance assistant at the Migration Section of DIMIA at the Australian High Commission in Islamabad (also by telephone), from Richard John Featherston, a document examiner with DIMIA (whom I regard as an expert in his field) and from Megan Joanne Richardson, a compliance officer with DIMIA in the ACT (by telephone). Numerous documentary exhibits were also received and will be referred to as necessary during the course of these reasons.
6. The central issue requiring resolution is the authenticity of the visa applicant’s University qualifications. Relevant thereto have been further questions of authenticity arising as to the letters and endorsements on documents produced by the visa applicant during the course of his efforts to establish that his Bachelor of Science and Master of Arts degrees are genuine. The respondent contends that this supporting material has also been forged by or on behalf of the visa applicant. There can be little doubt that if the respondent’s contentions are correct , the visa applicant will fail the character test.
7. I should say at the outset that I found the visa applicant to be a most unsatisfactory witness. Many of his answers to questions were garbled, lengthy and not responsive. The true extent of this tendency is not reflected in the transcript which reflects only the English language spoken at the hearings. Whether this was, as submitted by the respondent’s counsel, due to his attempt to evade a direct answer and thus adversely reflective upon his credibility, or due to his close emotional involvement and perception that he was being unjustly treated, will have to be considered. I found each of the other witnesses to be reliable and credible. It must however be said that a resolution of this review application would have been a much easier task if the administrative bureaucracy of the University of Karachi had been more cooperative with the officers of DIMIA and had been prepared to make members of their staff available to give oral evidence to the Tribunal. It is astonishing to me that a reputable seat of advanced learning and scholarship should not make all appropriate resources available to ascertain the truth in a case such as this, especially when the very existence of academic qualifications allegedly derived from that institution have been called into question, and the evidence discloses that such problems are extremely common in relation to Pakistan universities. The basis for this criticism will become apparent during subsequent discussion of the issues.
8. The following chronology of facts are either not in dispute or have been established to my satisfaction by the evidence before me.
9. On 7 February 2003 the Minister’s delegate wrote to the Controller of Examinations at the University of Karachi seeking confirmation that the visa applicant’s degree certificates were genuine.
10. On 12 April 2003, the Controller of Examinations replied (see letter at Exhibit R1, page 041) saying that the certificates appeared to be forged and requesting that the original degree certificates be sent “for further verification”. Neither the identity of the employee of the University signing this letter nor his qualifications as a document examiner (if any) were disclosed.
11. On 25 April 2003 an officer of the Migration section at the Embassy wrote to the visa applicant requesting him to supply (inter alia) the original documents (Exhibit R1, page 042).
12. On 20 May 2003 the visa applicant wrote to the Migration section enclosing what he claimed to be the original degree certificates (Exhibit R1, page 043).
13. On 2 June 2003 these certificates were sent to the University requesting further verification (Exhibit R1, page 044).
14. On 9 June 2003 the Controller of Examinations replied, acknowledging receipt of the degree certificate and advising that both had been checked and found to be forged and “therefore cannot be returned” (Exhibit R1, page 045). Once again the signatory of the letter was not named. This omission is of some significance in the context of this case as the expertise of the person making the forgery assessment was not and has not been established.
15. On 24 June 2003 the Minister’s delegate sent Notice of Intention to refuse the visa application to the visa applicant. The visa applicant was also invited to comment on the finding that the degrees were bogus. (Exhibit R1, page 048-9).
16. On 6 August 2003 the visa applicant replied to the Notice, reasserting the genuineness of the degrees and enclosing a “Special Certificate” dated 29 July 2003 signed by “Asstt Controller of Examinations, University of Karachi”. This Special Certificate stated (inter alia) that the visa applicant “has passed his Bachelor of Science Final Annual Examination in 1986 as Regular candidate under Seat No 26241. He was placed in SECOND DIVISION. The result of the above noted examination was announced on 7 November 1987.” The name of the signatory thereto does not appear on the document. To my eye the signature bears a striking resemblance to the signatures on the earlier letters from the Karachi University to the Migration Section of 12 April 2003 and 9 June 2003 referred to in paragraphs 10 and 14 above. Having regard to the contradictory information contained in the first two letters and the last it would be extraordinary if this were so, but the issue was not mentioned at the hearing, and it would be inappropriate to now draw any particular inference from this observation in the circumstances. With his letter of 6 August 2003 the visa applicant also enclosed his Bachelor of Science degree certificate. This certificate bore the endorsement “VERIFIED – Asstt Controller of Examinations, University of Karachi” and bears the same signature as that on the “Special Certificate”. The visa applicant also stated in his letter that the Controller of Examinations was reluctant to issue similar certificates in respect of his Master of Arts Degree, but had promised to do so within a couple of days. The visa applicant did not explain how he had recovered possession of his Bachelor of Science degree, but a subsequent letter (referred to in paragraph 18) deals with this.
17. On 27 August 2003 the visa applicant’s visa application was refused.
18. Upon being notified of this result the visa applicant wrote again to the Minister’s delegate on 18 September 2003. On page 2 of that letter (Exhibit R1, page 056) he said:
“(a) That my degree of bachelor of science original of which was sent to your office, I obtained duplicate copy of the degree from the University of Karachi and along with letter of verification dated 29.7.2003 which I have already sent to your office with my previous letter dated 6.8.2003, I submitted the same for verification through the Foreign Office Ministry of Foreign Affairs, Camp Office Karachi-Pakistan under registration No of the Foreign Office 5742 dated 13.8.2003 and thereafter my Master’s Degree through the Ministry of Foreign Affairs under Registration No. 7028 dated 2.9.2003 and the same has been verified from the competent Authority i.e. Controller of Examinations, University of Karachi on 12.9.2003. The original verification on the duplicate copy of the degrees I am enclosing for the satisfaction of your goodself.”
It is plain to me that this amounts to an assertion by the visa applicant that the Science degree certificate sent with his letter of 6 August 2003 and his Masters degree enclosed with the current letter were not the originals, but duplicates in the sense that they were replacements for the originals rather than true or facsimile copies of the originals. If this view of the applicant’s explanation is accepted it would go some way to overcoming inferences which may otherwise be drawn from some parts of the evidence of Mr Featherston which I will refer to later on. There was no evidence as to the general practice of the University of Karachi in regard to issuing replacement certificates to graduates who have lost their original documents. The only problem with the visa applicant’s explanation that occurs to me is that the verified Bachelor of Science certificate at Exhibit R1, page 054 is plainly different from the supposedly verified copy of the same degree at Exhibit R1, page 057. The verification certificate upon the latter is also signed by a different person (it appears to be “Mustafa”). If the visa applicant’s explanation holds water, I would have expected pages 054 and 057 to be completely identical.
19. On 15 October 2003 the visa applicant lodged his present application for review with the Administrative Appeals Tribunal.
20. On 17 December 2003 at a telephone conference hearing the review applicant, (the visa applicant’s brother), undertook to provide documentary evidence as to the genuineness of the visa applicant’s degrees.
21. On 5 March 2004 the review applicant provided (inter alia) the following “original” documents to the respondent’s solicitor.
(a)A letter on University of Karachi letterhead addressed to the visa applicant, dated 8.12.2003 and signed by the Controller of Examinations (unidentified) saying that after further examination of office records the visa applicant’s Bachelor of Science and Master of Arts degrees were found “to be genuine, therefore returned to Syed Zahed Hussain.” Why such a letter would be sent to the visa applicant rather than the DIMIA staff at the High Commission is difficult to understand. The respondent of course points to this document as being a bogus document manufactured by or for the visa applicant tending to betray its own falsity by the bizarre terms of its contents.
(b)A University of Karachi Students Identity Card bearing a photo of the applicant and endorsed “ S No. 0125”.
(c)A University of Karachi Semester Examinations Cell relating to Master Examination Faculty of Arts dated 8 August 1990 (and bearing the following printed notation at the bottom “Printed at BCC and T Press (ay) 325/5000/95”). The significance of this will be referred to when discussing Mr Featherston’s evidence. This document was referred to in evidence as the “marks sheet” or “marks transcript”.
(d)A letter dated 12 February 2004, signed by Dr Arshad Karim, Department of Political Science, University of Karachi stating that the visa applicant had been a student “of the Department of Political Science, University of Karachi for the Bachelor of Science and Master of Arts during 1985 – 1990. He was enrolled in my course of Muslim Political Thought and World Politics. He was among the good students of the class. My contact number is +923204794849”.
22. These documents were referred on to the University of Karachi for comment as described in the Statement of Rajab Ali Sheikh (Exhibit R7) paragraphs 3 – 12 inclusive:
“3. On 12 March 2004, I received the following original documents: a letter from the University of Karachi, Controller of Examinations dated 8 December 2003, a University of Karachi Student card of the visa applicant, a University of Karachi Semester Examination Cell dated 8 august 1990 and a reference letter from Professor Dr Arshad Karim, University of Karachi dated 12 February 2004 (S3)
4. On 27n April 2004, I send an email to Mr Muhammad Mustafa, the then-assistant to Mr Anwar Ahmad Khan, former Assistant Controller of Examinations, University of Karachi, attaching the documents described in paragraph 3 above and requesting confirmation that the documents are genuine (S11). On 28 April 2004, I received a response from Mr Mustafa by telephone and by e-mail (the e-mail was not received by the High Commission as Karachi University had a server problem) who confirmed that the documents were checked against University records and found to be forged (S12).
5. I and Mr Humayun, Locally-Engaged Compliance Assistant, visited the University of Karachi in Pakistan on 6 May 2004 to obtain written confirmation that the documents were forged. We met with Mr Muhammad Mustafa, Mr Mafooz Ur Rahman from the Semester Examinations Cell and Mr Anwar Ahmad Khan, Assistant/Deputy Controller.
6. All records are kept at the University in the restricted area where unauthorised persons have no access. Only staff from this area can access the records. All the records are kept manually in the restricted area. Without prior permission from the Controller of Examination staff, no other university staff are allowed to visit the restricted area. The University of Karachi has a separate section which deals with verification of degrees and mark sheets. When the record is extracted, a staff member calls the Assistant/Deputy Controller who is responsible for signing the verification letter. The Assistant/Deputy personally checks the record and notes the outcome on the degrees/mark sheets. A formal response is then prepared for companies, individuals or foreign missions and is signed by the original person who checked the documents. The original documents are then handed back to the Secure Registry.
7. In our presence, Mr Mustafa re-checked the letter from the University of Karachi, Controller of Examinations dated 8 December 2003, the University of Karachi Semester Examinations Section dated 8 August 1990, the reference letter from Professor Dr Arshad Karim, University of Karachi dated 12 February 2w004 and the Student Card against the records held by the University. Mr Khan, Assistant Controller, certified the documents with his signature and date and stamped the documents as having been forged. Mr Rahman and Mr Khan examined the documents in front of us and confirmed that they were fraudulent. His advice related to formats, fonts used, letterheads, signatures and the quality of the paper.
8. Mr Khan, the former Assistant Controller, would work as instructed by the Controller of Examinations or if another authorised person was on leave. The Assistant Controller certified the documents with his signature and date and stamped the documents as forged (S4). We discussed the documents with Mr Khan and Mr Rahman. They examined the documents thoroughly and certified the documents with Mr Khan’s signature, date and a stamp stating that the documents were forged. This was done in our presence.
9. On 10 May 2004, I sent another email to Mr Mustafa seeking written confirmation on University of Karachi letterhead that the documents were forged (S11). On 1 June 2004, I received a letter from Mr Khan from the Office of the Controller of Examinations dated 26 May 2004, stating that the M.A. Mark Sheet of Syed Zahid Hussain, indicating seat number 45530/90 had been checked and was found to be forged (S5).
10. On 10 May 2004, I rang the telephone number on the reference letter from Prof Dr Arshad Karim. There was no response. I checked with the mobile telephone company Insta and discovered that the number is a Quetta number owned by a Saifullah Khan. The mobile number was linked to a land line number in Quetta. That number was for the Salaam Paper and Stationary Mart, Shahr-e-Iqbal, Quetta.
11. On 23 November 2004 I visited Karachi University with my assistant Mr Amad Ali. I had a discussion with Mr Khan regarding the Administrative Appeals Tribunal (“the Tribunal”) hearing on 24 November 2004. Mr Khan stated that, whilst he was prepared to provide written confirmation that the documents provided by the visa applicant were forged, he did not wish to be a part of the hearing of the matter, as it was not “practice” to do so. Mr Khan also stated that he was prepared to provide additional written confirmation after re-checking the records, namely that the documents provided by the visa applicant were not genuine.
12. On 23 November 2004, I wrote a letter to the Controller of Examinations referring to my discussion with Mr Khan and requesting urgent verification of the documents provided by the visa applicant dated 22 June 2004 (S7), 24 June 2004 (S9), 29 July 2003(T11, folio 53), 12 February 2004 (S4) and 8 December 2003 (S4) and the MA Mark Sheet. On 24 November 2004, I personally collected a reply from Mr Barqi, Assistant Controller of Examinations of the University of Karachi. This response confirmed that they visa applicant’s degrees were forged. Mr Barqi also advised that the letters dated 8 December 2003, 12 February 2004, 22 June 2004 and 24 June 1004 were not issued from the office of the Controller of Examinations. In out meeting of 23 November 2004, we learnt from Mr Khan that recently he was allocated other duties by the Controller of Examinations. Mr Barqi does have the authority to sign the verification letter and personally check the record from the restricted area. We did request verification of the Special Certificate, in writing, in our letter of 23 November 2004, but it seems they overlooked this at the time of preparing their response to our letter. Mr Khan and Mr Barqi had verbally confirmed earlier, on 23 November 2004, our site visit indicating that all of the above-mentioned letters, including the special Certificate dated 29 July 2003 were indeed fraudulent. Now produced and shown to me and marked “RAS-1” is a copy of the letter from me to the University and the University’s response both dated 23 November 2004.”
23. The copy letter marked “RAS 1” referred to in Rajab Ali Sheikh’s Statement reads (in part) as follows:
“This is to inform you that BSc (pass) Degree seat No 26241/86 and MA Degree Marksheet Seat No 45530/90 of Syed Zahid Hussain S/O Syed Muhammad Hanif Jaffry checked and found FORGED. However, letters dated 8.12.2003, 12.2.2004, 22.6.2004 and 24.6.2004 not issued from this Office.”
The letter is on University of Karachi letterhead. Whilst the signatory of the letter is not named, there is a signature, which I infer is that of Mr Barqi, over the typed title “Assistant Controller of Examination”. The letters referred to in Mr Sheikh’s Statement as S4, S5, S7 and S9 are to be found in Exhibit R1 at pages 75, 78, 80, 82 respectively. From paragraph 12 of Mr Sheikh’s Statement I infer that the letter RAS 1 was signed by Mr Barqi.
It is also noted that copies of the letter of 8.12.2003 from University of Karachi to the visa applicant, the letter from Prof Dr Arshad Karim, dated 12 February 2004 referred to in paragraph 7 of Mr Sheikh’s Statement and the Mark Sheet referred to in paragraph 9 of Mr Sheikh’s Statement are contained in Exhibit R1 at pages 75, 77 and 76 respectively and bear a stamp ‘FORGED” signed by Mr Khan and dated 6.5.2004.
According to Mr Sheikh’s evidence in cross-examination Mr Khan told him it was not the University’s policy to provide either oral or written evidence for use in any court or mission.
24. Mr Sheikh gave viva voce evidence by telephone from Pakistan on 25 February 2005. He confirmed the contents of his witness statement (R7) and said that he had had experience as a document examiner in Afghanistan and Pakistan over a period of about 16 years. He has now left DIMIA’s employment but, there is no evidence from which any adverse inference could be drawn as to this.
Mr Sheikh told counsel for the respondent that he had never received letters from the Karachi University addressed to him and dated 22 and 24 June 2004, stating that the visa applicant’s degrees and mark sheet were genuine. This was a reference to letters in Exhibit R1 at page 80 and 82 respectively, both of which are typed on University of Karachi letterhead and are addressed to “Rajab Ali Sheikh, Compliance Manager Investigations and Liaison Australian High Commission Islamabad.
25. The first letter (at p80) says (inter alia):
“After further investigation of office records the original Mark Sheet of political science bearing Seat No 455/30/90 of Syed Zahid Hussain S/O Syed Muhammad Hanif Jaffry CHECK AND FOUND TO BE GENUINE signed Controller of Examination.”
Once again the signatory is not named.
26. The second letter (at p82) says (inter alia):
“With reference to your letter No Nil (sic) dated 26.5.04. I would say that my mark sheet of the seat No 45530/90. Declared by your (sic) as FORGED appears to be a department’s mistake. I therefore humbly request to please re-check the record and issue revised confirmation as OK of the mark sheet.”
This letter is also signed above the title “Controller of Examination”, but the signatory is not identified.
As mentioned in Mr Sheikh’s evidence, the University in the letter marked “RAS 1” said that neither of these letters had been issued by the office (ie of the University). The respondent also points to the reference in the letter of 24 June (supposedly written by the University to Mr Sheikh) referring to “my” mark sheet. The respondent contends that this was a slip made by the visa applicant or his accomplice in forging the letter for the purpose of bolstering his case, which clearly exposes the letter as a clumsy bogus document designed to deceive.
27. It is noteworthy that copies of both of the letters referred to in paragraphs 23, 24 and 25 hereof were provided to the respondent by the review applicant. The letter of 22 June 2004 was provided on 25 June 2004 and that of 24 June 2004 was provided on 28 July 2004.
How the review applicant came by copies of letters allegedly written by the University to Mr Sheikh has not been explained. When this issue is considered together with the fact that Mr Sheikh never received either of the two letters allegedly sent to him by the University there is obviously good reason for suspecting that both letters may have been fabricated by the visa applicant.
28. At the Tribunal hearing on 25 February 2005, the visa applicant’s advocate, Ms Carina Ford, submitted 2 documents which were taken into evidence. They were: (a) (Exhibit A1) an “Affidavit” dated 17.1.2005 by Iqbal Lasi. The substance of that document is as follows:
“I, Iqbal Lasi, Registrar writing and documents expert Karachi, Parkistan, do hereby solemnly and truly affirm and declare that:-
I am authorized to examine writing and documents, in the Courts in the Pakistan I have thoroughly examine (sic) various university documents including the University of Karachi degree certificate many times after checking the signature and the printing of both certificate and I found them to (sic) valid and genuine.
I, therefore confirm that Syed Zahid Hussain s/o Syed Muhammad Hanif Jaffary R/O 4463/3 Mousa Road, Quetta, Bachelor of Science degree certificate and Master of Arts degree certificate are the official University of Karachi degree certificate issued to the candidate after completing the required course.
Yours sincerely,
Registrar of Examination.”
Pending receipt of the original document a photocopy was taken into evidence on 25 February 2005, but it was replaced by the original at a subsequent Tribunal hearing on 15 June 2005. Both documents have a number of stamped endorsements upon them, but, oddly enough, the original has an additional stamp “Verified”, a signature which appears by comparison with a later exhibit (7) to be that of Mr Berki (Barqi); and a seal bearing the words “Controller of Examination University of Karachi”. Why this endorsement was on the original, but not on the copy submitted to the Tribunal on 25 February 2005 was not explained and is difficult to understand. A copy of the “original” was first supplied to the AAT and the Australian Government solicitor with a letter from Ms Ford dated 31 March 2005.
(b) (Exhibit A2) an “Affidavit” dated 19.1.2005 by Mustafa Qureshi. The substance of that document is as follows:
“I, Mustafa Qureshi assistant to the controller of examinations, University of Karachi, Pakistan do solemnly and sincerely state that I am the assistant to Controller of Examination of University of Karachi authorised to check and provide information on the degree issued at the University of Karachi.
This is information and confirm (sic) that Syed Zahid Hussain S/O Syed Muhammad Hanif Jaffary R/O 446/3/3 Mousa Road, Quetta have (sic) been awarded a bachelor of Science degree in 1986 bearing seat Number 25241/86 also the master of arts degree in 1990, bearing seat Number 45530/90. These degrees have been awarded after Syed Zahid Hussain successfully completed a bachelor of science degree course in 1986 and then the master of arts degree course in 1990.
There has been a mistake made in the past to the Australian High Commission, Islamabad regarding the status of the degrees. The examination department was rush (sic) to advice without properly cross checking examinations data and student records. The records related to the examination result for the period from 1985 to 1992 were destroyed during a fire accident which happened in the early month of 1994 at the University of Karachi during student riots. When the degrees were cross checked again and found to be official documents presented to Syed Zahid Hussain. Both degrees were returned to Syed Sahid Hussain on the 8th December 2003.”
A photocopy of this document was also taken into evidence on 25 February 2005 and was replaced later exactly as described in relation to Exhibit A1 in paragraph (a) above. The endorsements described in paragraph (a) also appeared on A2 both in copy and “original” form. As with A2, the original was first supplied with Ms Ford’s letter of 31 March 2005.
29. On their face both “Affidavits” appear to give strong support to the visa applicant’s case, but there are a number of difficulties. This is the first time in correspondence relevant to this case, in any letter originating or allegedly originating from the University of Karachi, in which the author or signatory has been identified by name, yet neither Mr Lasi nor Mr Qureshi was called to give oral evidence by either side in the case. Furthermore, the “affidavit” by Mr Qureshi whilst on the one hand suggesting that past errors have been made because “examination data” and “student records” were not properly checked on a previous occasion, then says, in the very next sentence, that the records relating to the relevant period for present purposes (1985 to 1992) were destroyed by fire in early 1994 during student riots. If this latter statement is correct it would seem to me to be impossible for Mr Qureshi to have checked such records to satisfy himself of the authenticity of the degree certificates. Unlike Mr Lasi who appears to base his opinion in (A1) upon the signatures and format of the 2 degree certificates themselves rather than extraneous material, I draw from Mr Qureshi’s “Affidavit” the clear inference that his assessment of authenticity is based upon University records. For the reasons just expressed these factors render both the opinion and authenticity of the “Affidavit” (Exhibit A2) highly suspect. It is also noteworthy that Mr Qureshi’s final sentence claims that “both degrees were returned” to the visa applicant on 8 December 2003, whereas the evidence of the visa applicant suggests that only duplicate degrees were prepared for him in December 2003.
30. At the hearing on 25 February 2005 I pointed out to both counsel that as there were now 2 self identifying witnesses who had apparently provided material which was potentially determinative of the principal issue in these proceedings, it should be a simple matter for the respondent to verify the authenticity of Exhibits A1 and A2 and the status and authority of Messrs Lasi and Qureshi.
31. Enquiries as to these matters were instituted as described in the statement of Megan Joanne Richardson (Exhibit R8). Ms Richardson is employed by DIMIA. In her statement she said:
“On 15 March 2005 I wrote to Mr Anwar Ali Zaidi, Controller of Examination, University of Karachi attaching copies of affidavits supplied by the applicant by Nadeem Siddique dated 3 February 2005, Iqbal Lasi dated 17 January 2005 and Mustafa Quereshi dated 19 January 2005 and asking for confirmation that the signatories are employees of the University and have authority to make the statements in the affidavits. To date I have not received a response from the University.
On 29 March 2005, I was briefed on the background of this case by Mr Rajab Ali Sheikh, Compliance Manager, Migration Section, Australian High Commission, Islamabad. I received scanned copies of supporting documents provided by the visa applicant and his representative (Carina Ford), these included: Affidavit dated 19 January 2005 on Controller of Examination letterhead, statement made by Mustafa Quereshi; affidavit by Nadeem Siddique dated 3 February 2005 and an affidavit b Iqbal Lasi dated 17 January 2005.
On 29 March 2005, I am informed, and I believe, that Mr Sheikh phoned the University of Karachi. He then reported to me that he had spoken to Mr Mustafa from the document verification area who had stated that there had been no fire at the university and no incident as described in the document dated 19 January 2005 purporting to be from Mustafa Quereshi from the University of Karachi.
On 31 March 2005, Mr Sheikh faxed the documents described above to the University of Karachi requesting that the affidavits be confirmed as genuine and that confirmation be given if documents were destroyed in a fire.
On 7 April 2005, I received a letter from the University of Karachi (made attention to Rajab Ali Sheikh) in response to his fax of 31 March 2005. That letter is attached to my statement and marked “A”. That letter was from the examinations Department of the University of Karachi and signed by the Controller of Examinations. That letter advised that “There was not any fire accident between 1985 to 1992 (sic), hence the question of destroying record/documents does not arise.”
On 7 April 2005, I send a follow up fax to the University of Karachi asking for clarification of the alleged fire, confirmation that all persons claiming to be university employees were in fact employed there and also to confirm that the visa applicant had been a student at the University.
On 5 May 2005 I sent a further letter to the University of Karachi again asking for clarification as per my fax of 7 April. To date I have had no response to neither the fax nor the letter.”
There is no need to quote additionally from annexure “A” to Ms Richardson’s statement. The relevant part of the letter is accurately quoted in her statement.
32. The final hearing of this case occurred on 15 June 2005. Up until that time no further information capable of shedding light on the issues had been received by the respondent from the University of Karachi. Bearing in mind this, and the matters referred to in Mr Sheikh’s evidence, it is plain to me that the criticisms I made in paragraph 7 of these reasons are fully justified. Oral evidence from Mr Khan, Mr Barqi (Berki) and Mr Qureshi could, and almost certainly would, have been of the utmost value in this case. Evidence from the University as to the existence and status of Messrs Barqi (Berki) and Qureshi would have been very valuable.
33. One aspect of the evidence requiring separate consideration arises from the letter which the visa applicant produced from Prof. Dr Arshad Karim of the Department of Political Science, University of Karachi. It will be remembered that Mr Khan certified this as a forgery. The visa applicant gave a description of his association with Dr Karim and the steps he took to obtain the letter for use in evidence at page 12 and following in the Transcript of evidence. The visa applicant said:
“He was lecturer and arts and in Bachelor of Arts as well as in Master of Arts and he used to teach three subjects actually.
He used to teach political science, Islamic studies, Pakistani studies and sometimes, if the other lecturers were absent or were not present that day or were not coming, then he used to teach English as well.”
34. It was put to the visa applicant that enquiries by the Australian High Commission had ascertained that the telephone number quoted in Dr Karim’s letter was in fact not a telephone line for which Dr Karim was a subscriber, but was one which was connected to a landline in Quetta which was linked to a company called Salaam Paper and Stationary Mart (SPM Office Systems) which was a company which had previously employed the visa applicant. The visa applicant was asked to explain this apparent coincidence. Part of his response appears in the following passage of evidence:
“THE D PRESIDENT: It is being suggested that the number in Professor Karim’s reference, that is the telephone number in Professor Karim’s reference, is the same as a telephone number used by your previous employers, SPM Office Systems. If that is the fact can you explain it?
THE INTERPRETER: Okay. It is like that that maybe Mr – Professor Karim’s full name is Karim Khan and he – it is his number which is given is mobile number and what you are saying is a landline number. Maybe he goes to Quetta and he goes to SPM and talks to a guy – for example, some XYZ guy, and says that I like this number, can I have this number? And he says, yes, you can have that number. This year when I met him and I explain him that I have this trouble and I need your phone number and he said, okay, this is my number you can take it and you can ask them to talk to me. That is it.”
35. The visa applicant was asked as to the circumstances in which the letter was prepared. The following exchange took place:
“THE D PRESIDENT: I am sorry, I had one more question. Who prepared the reference that Professor Karim signed? Did you prepare it and give it to him to sign or did he prepare it, that is did he type it, and then sign it for you.
THE INTEPRETER: No, when I was in – sitting in his loungeroom his son came over and he asked his son that please prepare this letter and the stamp as well and stamp it too so that is what happened.
THE D PRESIDENT: So his son typed out or prepared the reference and he signed it in your presence and you took it away, is that right?
THE INTERPRETER: Yes, he said, is this enough and he gave that to me.”
36. The visa applicant was asked as to his prior employment by SPM Office Systems. His reply was somewhat unresponsive, but it is clear enough from the Migration Review Tribunal decision (see Exhibit R1, page 62 and following, particularly page 65) that he had claimed in evidence to that tribunal that he had been involved in leadership, management and development of the SPM Office Systems. This evidence tends to suggest that he would have had access to technologies which may have been of assistance in producing bogus documents if he had been so minded, but more importantly in the context of this case it tends to suggest that the phone number supplied may not be one to which Dr Karim had access, and, in that sense, was a bogus number.
37. When the visa applicant was further questioned as to his dealings with Dr Karim when he was recalled on 15 June 2005, he said that his further enquiries after February 2005 indicated that Dr Karim had died since he had contacted him in February 2004. This may be the truth or it may be a convenient lie to explain the absence of Dr Karim and the visa applicant’s inability to supply an alternative telephone number at which Dr Karim may be contacted. The visa applicant did, however, supply details of Dr Karim’s place of residence when he first gave evidence in February 2005. Enquiries could have been made by the respondent to ascertain whether these details were true. there was no evidence which would justify a finding that Dr Karim was a fictitious person.
38. Another issue requiring consideration is this. None of the written material provided by the University of Karachi suggests that Dr Karim was not employed on the academic staff of the University during the relevant period when the visa applicant claims to have been a student. It seems from the evidence given by Mr Sheikh that the certification by Mr Khan that Dr Karim’s letter of reference was a forgery, was based upon “formats, fonts, letterheads, signatures and quality of paper”. (See Exhibit R7, paragraph 7). It is difficult to see how an opinion based upon such features could assist in a case such as the present where Dr Karim’s letter of reference allegedly came into existence at his own home several years after his retirement. He was then using his own paper, on his own word processor. There is no direct evidence that his signature thereon was compared with other signatures of his on University or other official documents.
39. I turn now to consider the evidence of Mr Richard John Featherston. Having regard to the unavailability to him of comparable documents for analysis and comparison with the allegedly forged or bogus documents presented to the Tribunal, his evidence provides a limited, but nonetheless, useful basis for considering the issues in this application to review. Mr Featherston is plainly a well qualified document examiner and I have no hesitation in accepting his evidence.
40. The substance of Mr Featherston’s evidence is set out in his statement (Exhibit R2). He also attended the Tribunal hearing and gave viva voce evidence on 13 April and 15 June 2005.
41. Mr Featherston highlighted the following points:
(a)Neither of the 2 degree documents (Exhibits R4A and R4B) bear a “Goatskin Parchment” water mark. Although he has had no direct experience of genuine University of Karachi degree certificates, his understanding is that such documents have such a water mark.
(b)There are 2 different versions of the Bachelor of Science degree. The copy provided by the visa applicant’s lawyers on 31 March 2005 differs in obvious respects from the “original” (Exhibit R4A) and a copy thereof supplied to him by the respondent’s solicitors.
(c)Similarly there are 2 different versions of the Master of Arts degree. The copy provided by the visa applicant’s lawyers on 31 March 2005 differs in a number of respects from the original (Exhibit R4B).
(d)the “original” marks transcript document (Exhibit R5) contains a “FORGED” stamp in the right hand column. (This stamp, according to Mr Sheikh’s evidence was applied by Mr Khan in May 2004 and dated 2/5/2004). The “FORGED” stamp is missing from a second copy of the document and in the same place on a photocopy provided by the visa applicant’s lawyers on 31 March 2005, is a stamp “VERIFIED” dated 15/3/05. On the basis of Mr Featherston’s evidence it would be reasonable to find that the copy was prepared by covering or erasing the original “FORGED” stamp or erasing the original “FORGED” stamp and substituting therefor the “VERIFIED” stamp. The inferences to be drawn from either finding are not necessarily adverse to the visa applicant however. It may also be reasonable to find that the “VERIFIED” stamp had been applied to a photocopy of the marks sheet which was taken from the original before the “FORGED” stamp had been applied to it.
(e)The “original” marks transcript (Exhibit R5) contains a printer’s notation at the foot. It says “Printed at B.C.C. & T PRESS (ay) 325/5000/95.” Mr Featherston expressed the opinion, based on his experience that “the `95’ part of the notation” is probably “a reference to the year of printing of this base document i.e. 1995, yet the date of the completed document is 1990”. This is a reference to the date stamp “08 Aug 1990”. To me this is a matter of significance. There may be explanations, but none are apparent. Ms Ford suggested that the mark sheet may not have been obtained until after 1995 and was issued with an earlier date as an intended copy of the original ie a “duplication” in the sense that has been previously discussed. A discussion on this issue occurred between me and Ms Ford during her final address. The visa applicant’s evidence on this issue was confused and confusing.
(f)The student identity card (Exhibit R6) (which was provided to the respondent’s solicitors on 5 March 2004 by the review applicant – see Exhibit R1, page 69) was found by Mr Featherston to have the following features:
(i)Both the fixed text and all personal data on the card were entirely printed by an offset print process. Bearing in mind that the variations in the identity number and other variable data which would be necessary to complete each such card for individual students, Mr Featherston found this very surprising. He explained the reasons in full at page 86 of the Transcript.
(ii) & (iii)
The card, allegedly issued in 1989, is very clean for a 16 year old document, but the laminate in which the card is enclosed is scratched in a manner suggesting that it has been rubbed against a hard surface. Mr Featherston added: “Whether that is a deliberate thing or not is impossible for me to say.” I agree with Mr Featherston that the scratches on the card excite suspicion but I am unable to draw a firm inference from its appearance.
(iv)The person whose photograph is affixed to the document appears to be older than 23 years of age.
The visa applicant would have been 23 years old at the date the card was allegedly issued. The visa applicant is now 39. Mr Featherston explained the basis of his experience in making this observation. If I had other photos of the visa applicant for comparison I would be more confident than I am that Mr Featherston’s opinion on this aspect of the case is correct.
42. Finally, I should mention Exhibit R3, a downloaded copy of the web page of the University of Karachi which indicates that between 1 September 1987 and 7 July 1990, Prof Dr Manzoor-ud-Deen was Vice Chancellor of the University and that between 8 July 1990 and 6 July 1994, Dr Syed Irtifaq Ali was Vice Chancellor. It was submitted by counsel for the respondent that this provided evidence of the falsity of the visa applicant’s claim to have obtained a genuine re-issued copy of the original as Dr Ali not Dr Manzoor-ud-Deen was Vice Chancellor at the time when the visa applicant claims that he obtained the duplicate copy of the original document. I think this argument tends to ignore the problem which I identified at paragraph 18 of these reasons. Of more significance to me is the fact that the signature of the Vice Chancellor on the Master of Arts Certificate (Exhibit 4B) appears to be that of Manzoor-ud-Deen also, but his appointment had terminated well before the issue date endorsed on the Certificate viz 10th October 1992. The signature is plainly not that of Syed irtifaq Ali.
43. In her evidence to the Tribunal Ms Richardson mentioned that DIMIA is in the process of investigating several cases where employees at Universities in Pakistan are alleged to have provided bogus letters of support to persons applying for visas whose qualifications have been queried. She said that it is quite common for University authorities to fail to respond to queries raised by DIMIA. These comments add weight to the criticisms I made at the beginning of these reasons as to the reliability of information emanating from the University of Karachi in this case, and the need is apparent for the establishment of unimpeachable protocols to enable a proper assessment to be made of the authenticity of academic qualifications claimed by prospective migrants to Australia.
44. Whilst I accept Ms Arduca’s submission that there is no basis for finding that any of the documents supplied by University staff to DIMIA’s officials are forged or counterfeit, there are nonetheless grounds for doubting their probative weight. A mere endorsement or stamp placed on a document that it is “FORGED”, whilst possibly prima facie evidence of that fact carries little weight if the claim of forgery cannot be sustained upon a challenge being made to that opinion. Furthermore the issue of duplicates and or facsimile copies of previously issued primary documents such as degree certificates can plainly lead to confusion and suspicion as to the genuineness of both classes of documents. Such problems have arisen in the present case. This is not to say that I accept the visa applicant’s evidence as to the way in which he alleges the two duplicate degree certificates came into existence, but there is no evidence from the University as to whether or not such documents are issued without bearing on their face an indication that they are not original documents.
45. Ms Arduca also submitted that the visa applicant has a lot at stake in these proceedings and she suggested that is why he has persisted as long as he has – he has a strong interest to continue. She also said that corroborating evidence presented by the visa applicant at the hearing had only been presented after queries had been raised and problems had been identified by the respondent. Both these points are fairly made, but I regard neither of them as necessarily indicating the falsity of the visa applicant’s case. Similarly her point that Dr Karim’s alleged death is convenient for the visa applicant was fair but there is no evidence to suggest that such evidence is false – as already mentioned DIMIA could have followed up with enquiries at the address provided by the applicant during the hearing in February, but apparently did not do so.
46. The respondent’s case is largely dependent upon hearsay evidence and documentary material emanating from Pakistani witnesses who have been unavailable for cross-examination. There has also been circumstantial material, notably the apparently significant “my” in document s9 at page 82 of Exhibit R1, Mr Sheikh’s non-receipt of this letter and s7 at page 80 of R1, the visa applicant’s unexplained possession of copies and the strange phraseology of the final sentence of s9. The visa applicant’s case has been dependent on allegedly original documents and duplicates issued by the University, University personnel who have allegedly provided written verification of the authenticity of his claimed qualifications and written correspondence from Dr Karim. I have not overlooked Exhibits A10, A11, A12 or Nadeem Siddique’s affidavit of 3 February 2005 (Exhibit A3), but I attach little weight to any of these.
47. In the final analysis whilst I still entertain considerable doubt about the authenticity of the applicant’s claimed qualifications, I am unpersuaded to the necessary degree i.e. the balance of probabilities, that it has been established that he has been instrumental or complicit in an attempt to hoodwink DIMIA or the Tribunal with a bogus case. I note that the visa applicant was cross examined on two separate occasions. On neither occasion did he have copies of relevant documents at his disposal, thus substantially frustrating Ms Arduca’s attempts to cross examine him as to dubious aspects of their contents. On 25 February 2005 the visa applicant was clearly advised by me that when he was questioned further at a later date he should have copies of such documents available for reference when giving evidence. His explanation for the absence of such material on 15 June 2005 was unconvincing.
48. Whilst I found the visa applicant to be a very unsatisfactory witness I cannot say that I am satisfied that he was deliberately untruthful. The only basis upon which his character has been impugned is his alleged use and reliance upon false qualifications. In the absence of my being affirmatively satisfied of these allegations I am unable to sustain the decision under review. This conclusion follows from an application of the decision of the Full Federal Court in Godley’s case (supra). At paragraphs 49 to 55 of that decision the Court said:
49 Thus, s 501(6) requires the Minister to consider the separate matters in paras (a), (b), (c) and (d) and to make a determination whether the person comes within the provisions of any of those paragraphs. In respect of par (c) of s 501(6), the Minister has to consider whether the person is not of good character for either or both of the reasons given in placita (i) or (ii) of that paragraph.
50 If the Minister determines that the person is not of good character, then it must follow that the person does not pass the character test.
51 If, on the other hand, the Minister does not decide that the person comes within any of paras (a), (b), (c) or (d) then, by force of s 501(6), the person has passed the character test. That is so because of the concluding words in the subsection ‘Otherwise, the person passes the character test’. It follows that, absent any determination or decision by the Minister that the person comes within any of the paragraphs of s 501(6), the person has by force of the express provisions of the subsection passed the character test.
52 In those circumstances, the requirement of s 501(1) that the person satisfy the Minister that he or she passes the character test can require no more than the person passing the character test by reason of the terms of the section itself. Whether the applicant for the visa does or does not pass the character test is something to be determined by the Minister by reference to paras (a), (b), (c) and (d) of s 501(6).
53 It was contended on behalf of the Minister, that no onus lies on the Minister to make any decision under s 501(6). It was argued that, in circumstances where the Minister was unsure whether a person is or is not of good character, the Minister could refuse to decide, for the purposes of s 501(6)(c), whether the applicant for the visa is or is not of good character and, in the event of such a refusal, then the applicant would not have satisfied the Minister that the applicant passes the character test, so that, in those circumstances, the Minister could, in his or her discretion, refuse to grant a visa.
54 That argument should be rejected because it is contrary to the express terms of s 501(6). A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. There is no other way of determining whether one or more of these paragraphs apply than by a positive finding to that effect by the Minister. If the only paragraph under consideration is par (c) in s 501(6), absent any decision by the Minister that the person is not of good character, then the person has passed the character test.
55 It follows, therefore, that if the Minister is unsure whether a person is or is not of good character, is unable to reach a positive decision that the person is not of good character and declines to do so, then, if that is the only matter under consideration, that person will have passed the character test.
It follows from this that the adverse character findings made against the visa applicant by the Minister’s delegate should not be allowed to stand. Consequently, I direct that the visa applicant’s visa application be remitted to the respondent with a direction that such application be assessed and determined on the basis that he is not a person who is not of good character within the meaning of s501 of the Migration Act 1958.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 30 November 2004, 25 February, 13 April and 15 June 2005
Date of Decision 22 July 2005
Counsel for the Applicant Ms Carina Ford
Solicitor for the Applicant Immigration Lawyers
Counsel for the Respondent Ms E Arduca
Solicitor for the Respondent Australian Government Solicitor
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