Hussain (Migration)

[2021] AATA 3046

Hussain (Migration) [2021] AATA 3046 (5 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muzamil Hussain

CASE NUMBER:  2014154

HOME AFFAIRS REFERENCE(S):          BCC2019/3836077

MEMBER:Kira Raif

DATE:5 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 5 August 2021 at 11:20am

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 Skilled – Regional (Provisional) – incorrect answers with the visa application – employment history – employer’s business and contact details not verified – bogus registration document – evidence of company operations – employment documents signed by a person without authority – financial hardship – work contribution to a regional area – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 197, 198
Migration Regulations 1994, Schedule 2 cl 489.224; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55          

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 applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan, born in August 1988. He was granted the Skilled Regional Sponsored Subclass 489 visa on 30 August 2018. In February and August 2020 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 responses to the two NOICC and his visa was cancelled on 18 September 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 29 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Khyber Mehmoud. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu 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 affirmed.

   Relevant law

4. 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.

5. 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? 

6. 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.

7. 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?

8. 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.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Skilled Regional Sponsored visa on 9 May 2018. The applicant provided on the application form the following information in relation to his employment,

   ·01/10/07 – 15/09/09    assistant technician, Punjab Dairy Farming

   ·16/09/09 – 31/12/14    technician, Punjab Dairy Farming

   ·01/01/15 -                   technician, Punjab Dairy Farming

10. The applicant provided a description of his duties in relation to each of these jobs and stated that he was claiming points for the most recent employment. The applicant signed a declaration at Page 13 of the form that the information he provided on the form and any attachment was complete and correct in every detail.

11. The applicant also completed as part of his visa application a Form  80. At Part F of that  form in response to Question 19 the applicant stated that he had been employed by Punjab Dairy Farming from October 2007 to the present. The applicant also signed a declaration on that form that the information he had supplied on the form was complete, correct and up to date in every detail.

12. In support of his claimed employment, the applicant provided a letter of appointment signed by Mr Mehmood, a Manager Human Planning and Development at Punjab Dairy Farming dated 1 October  2007, a letter from Mr Mehmood confirming the applicant’s employment dated 31 March 2008 and 26 January 2018, a letter from Mr Mehmood outlining the applicant’s responsibilities and a number of payslips from January 2015 to April 2018.  

13. The applicant was granted the Skilled Regional Sponsored visa on 30 August 2018 and he arrived in Australia on 18 November 2018.

14. The primary decision record indicates that following the grant of the visa, the Department carried out validation checks concerning the applicant’s employment. It is noted that the  open source checks failed to deliver any evidence of a dairy farm previously or currently operating under the name of Punjab Dairy Farming in Pakistan. The primary decision record indicates that

    a.a historical domain search of the company website recorded on the company letterhead ( indicated that the website was created on 19 January 2018, ten years after the applicant claims to have commenced employment here, after the letter of appointment was issued to him dated 1 October 2007 and after the service letter dated 31 March 2008 was issued, and only shortly before the references letters dated 24 and 26 January 2018 were issued,

    b.A domain search conducted in July 2019 indicated that the company website was not currently active,

    c.Google search for Punjab Dairy Farming and of its claimed address and telephone numbers, as recorded on the company letterheads, failed to produce any results or provide any information about the company,

    d.Yasir Mehmood’s email address is recorded as [email protected]. However, the google search for that address did not link Mr Mehmood to Punjab Dairy Farming. Rather, that email address was linked to an android application developer and an application called Respected Parents, which may suggest that Yasir Mehmood was not the HR manager at Punjab Dairy Farming.

15. The delegate noted that there did not appear to be any plausible reason why the company letterheads used in 2007 and 2009 would contain details of a company website not registered or used at the time and not registered for another 10 years. The delegate also considered it an unlikely coincidence that the website was registered only a few days before the applicant’s reference letters were issued, suggesting that the website was created for the sole purpose of creating evidence of the company’s operations and that it was not a legitimate business.

16. In response to the NOICC the applicant stated that he had genuinely worked for Punjab Dairy Farming and had been truthful in his evidence. The applicant provided a company registration certificate which he claims was issued by the CEO of the company. The registration certificate was referred to the overseas post for verification. The primary decision record indicates that the Deputy Director of Registration of Firms in Lahore advised the Department that the document was fake. It is stated that the Deputy Director advised that the signatory of the document Mr Quershi was a former director of the Registration of Firms but not in 2006 – 2007 and it was further stated that the registered address of the company did not come under the jurisdiction of the Lahore District Registration of Firms. The delegate concluded that the applicant provided a bogus document in response to het NOICC and had not complied with s. 107(2) of the Act.

17. In his response to the first NOICC the applicant reiterated his employment for Punjab Dairy Farming and started that at the early stage, the administrative processes of the company were not very professional, there was no HR Department and the employment contract was signed by hand and stamped by Mr Mehmood. He had later misplaced the contract but a copy was kept on the file and he was reissued with the copy of the contract, and he was also issued with the employment confirmation on the original appointment letter. The applicant states that the company and the website are genuine and that Mr Mehmood’s statement should be accepted as genuine and truthful.

18. The Tribunal finds that explanation unconvincing, as it is not apparent that at any time the applicant indicated that the documents issued in 2018 were re-issued from the internal records of the company. These documents were presented as the original documents and dated around 2007, rather than 2018 as the applicant now suggests.

19. With respect to Mr Mehmood’s personal email appearing on the letterhead, the applicant states that in Pakistan emails and websites are informal and ‘not taken very seriously’. The Tribunal finds that explanation implausible and does not accept that a manager of a company would use his own personal email address on the company letterhead and would encourage business dealings and business emails through such personal email address. In the Tribunal’s view, the applicant’s explanation also contradicts his evidence that once the company expanded, they believed that the internet presence was needed and therefore the company website was created. Either the company determined that it needed the website because of its growth, or the websites are not taken seriously. It is also problematic, in the Tribunal’s view, that according to the primary decision, a domain search conducted in 2019 indicated that the company’s website was not active. Despite the applicant’s claim that the company decided to have an online presence, that presence was no longer there once the applicant’s employment documents had been issued. The applicant told the Tribunal that the website was maintained by a third party and may be they had been negligent but in the Tribunal’s view, that is unlikely if it is the business of the third party to maintain websites and they had been paid to do that (as the applicant claims). A more likely explanation, in the Tribunal’s view, is that once the relevant documents had been issued to the applicant and he had been granted the visa, it was determined that there was no longer a need to maintain the company website. As noted above, the Tribunal considers it problematic that the website was registered shortly before the various letters were issued to the applicant and ceased operating a short time later. This supports the view that the website was not the legitimate website of an operating company but was more likely created to assist the applicant with the visa process.

20. The applicant presented a statement from Mr Mehmood, who explains that the company was small in 2006 and expanded gradually and by 2017 he decided that he needed an online presence and decided to develop a website, which was not used for e-commence. It is stated that the company paid a registration and service fee to a third party to maintain the website and it was not owned by the company. Mr Mehmood repeated the information that the applicant gave in response to the NOICC. The applicant included evidence of Mr Mehmood’s employment in the company, and a statement by Mr Mehmood concerning the use of his personal email. The applicant presented a number of documents evidencing the operation of Punjab Dairy Farming, including photographs, sale receipts, invoices and other materials. This evidence is consistent with Mr Mehmood’s oral evidence to the Tribunal as he confirmed the applicant’s employment and the period of his employment.

21. The applicant explained to the Tribunal that the company’s details could not be found through Google search because the company already had its customer base and had contact with customers and there was no need for google registration. The applicant also states that their systems are not very sophisticated. The Tribunal does not accept the applicant’s explanation. The mere existence of a phone number or address and any level of activity or the company’s interactions with third parties would have very likely produced a result through google search. That is, the Tribunal considers it implausible (if not impossible) that the company could operate and interact with its customers for a number of years without any result appearing through a Google search. The absence of the results significantly undermines, in the Tribunal’s view, the applicant’s claims about the company’s operations and the documentary evidence of the company operations presented by the applicant.

22. In response to the second NOICC, which referred to the provision of bogus document concerning company registration, the applicant states that he obtained that document from his employer and cannot be held responsible for its authenticity. The applicant reiterates that the business legitimately operated and that he was employed by it. The Tribunal is mindful that s. 103 provides that the applicant must not give a bogus document, it does not state that a person cannot ‘knowingly’ give a bogus document. There is no requirement that the provision of a bogus document needs to be intentional or be done knowingly for that provision to be engaged.

23. In his submission to the Tribunal dated 20 June 2021 the applicant states that Punjab Dairy is a real company operating in Pakistan, that companies may operate without registration in accordance with Pakistani laws, so little weight should be placed on the registration document which was said to be bogus and that the visa was not granted on the basis of incorrect answers or bogus documents as the information he submitted was genuine. The applicant states that there has been no other non-compliance, he has complied with the Australian laws and is of good character.

24. The applicant submits that the company has been operating in Pakistan for many years and at its early stages lacked proper record keeping procedures as many businesses in Pakistan are not sophisticated or professional. The applicant notes that he had submitted ample evidence of the company’s operations, including receipts from the company’s operations (including animal vaccinations and business deals) and company and photographs of Mr Mehmood at his workplace. (With respect to the photographs, the Tribunal is mindful that  it has no means of verifying that the photographs are in fact of Mr Mehmood, that they relate to the operations of this particular business and that they relate to the period when the applicant claims to have worked in the company, insofar as these are provided to confirm the applicant’s own employment.) With respect to s. 103, the applicant relies on the same reasoning, stating that the company did operate and his employment can be confirmed by Mr Hussain. The applicant states he has the experience as a result of his employment, which enabled him to perform skilled work in Australia and which he is able to demonstrate. The applicant states that due to the lack of complex procedures in Pakistan, it has been difficult for him to obtain records of the business operations.

25. With respect to the bogus document submitted in response to the NOICC, the applicant states that the form was obtained by Mr Mehmood through his staff. The applicant notes that under the law of Pakistan, it is not mandatory for the company to register in order to operate and registration can occur at any time. The applicant nots that since some companies lacked adequate record-keeping practices, the form was obtained ‘in a simplistic manner’ and Mr Mehmood had no concern about its authenticity. The applicant states that the finding that the registration form was a bogus document does not mean the company was not operational. The applicant notes that the provision of a bogus document does not lead to the mandatory cancellation of his visa.

26. In his declaration of 4 August 2021 the applicant again states that he provided only truthful information in his visa application and his employer confirmed this in oral evidence to the Tribunal. The applicant states it is unfair for his visa to be cancelled only because the documents he submitted did not specify that these were duplicate.

27. Having regard to the verification carried out by the Department, as set out in the primary decision record, the Tribunal reasonably suspects that the company registration certificate is a bogus document within the meaning of s. 5(1)(b) because it is counterfeit. As noted above, the Tribunal is of the view that the provision of a bogus document attracts the operation of s. 103 whether or not it is done knowingly and therefore the Tribunal need not determine, for the purpose of establishing the breach, whether the applicant’s evidence is truthful about how this document was obtained. The Tribunal finds that the applicant gave or provided a bogus document to the Minister or an officer and therefore he had not complied with s. 103 of the Act.

28. The Tribunal also considers that the fact that the company registration certificate was found to be a bogus document to be strong evidence that the company did not legitimately operate, contrary to the applicant’s claims. Put simply, there was no need to falsify the company registration certificate if the company did operate legitimately and was registered at the time of the applicant’s employment. (The Tribunal acknowledges the applicant’s evidence  that company registration is not compulsory but the applicant did provide the company registration certificate claiming the company was in fact registered, the applicant does not claim the company was not registered and therefore no evidence of its registration is available.) There are several concerns relating to the company’s operation, which are set out in the primary decision record, including the absence of a google listing for the company, the use of a private email by the company manager on its letterhead, the fact that the website was registered many years after it appeared on the letterhead of the applicant’s employment documents and was no longer operational shortly after the employment documents were issued. The applicant addressed those issues in various submissions to the delegate and the Tribunal and the Tribunal has expressed concern with some of the applicant’s explanations, which are set out throughout this decision record. The Tribunal is also concerned about the veracity of the presented documents relating to the company’s operations because the Tribunal is of the view that if the registration document was found to be a bogus document, the willingness of the applicant or another person to fabricate such evidence suggests a possibility that the other company documents had also been created to assist the applicant with the visa process.  

1. The Tribunal’s concerns are supported by aspects of the applicant’s evidence concerning his employment. Thus, the applicant could not recall his base salary or what allowances he was paid (claiming initially there were no allowances and he was only paid the base salary and reimbursements). The applicant blames his lack of recall on the passage of time and the fact that he did not study the payslips carefully but in the Tribunal’s view, if the applicant did work for the company for the duration that he claims (approximately ten years), he should have greater familiarity with his salary arrangements. The Tribunal also does not consider that the passage of three years since the applicant claims to have stopped working of the company would alter the applicant’s recollection concerning his salary.

2. A significant concern for the Tribunal relates to the applicant’s employment documents dated 2007-2008. The primary decision record indicates that the applicant included with his application a letter of appointment signed by Mr Mehmood in October 2007 and another letter confirming the applicant’s employment signed by Mr Mehmood in 2008. However, the applicant’s evidence to the Tribunal is that Mr Mehmood (the HR manager) did not commence with the company until around 2015 and therefore he could not have signed these documents in 2007-8 and had no authority to do so. The applicant explained to the Tribunal that the original letter was issued in Urdu (and he provided a copy showing it as an old document), he had lost that  document and asked the company to re-issue and because the manager did not want to get involved, the HR manager signed the papers on the basis of the old records. However, that is not the information contained in those employment documents. There is nothing in the employment documents showing that they were reissued in 2018 on the basis of the old records or that they were duplicates of the originals. The documents are dated 2007-2008 and had been presented as contemporaneous evidence of the applicant’s employment when he commenced employment with the company. That information was clearly misleading. The applicant submits that he should not be penalised because the word ‘duplicate’ is missing from the documents but the Tribunal considers the issue to be more serious than that. By presenting documents that purport to have been issued at the time the applicant commenced his employment by a person who was authorised to sign such documents, the applicant sought to adduce contemporaneous and probative evidence of his employment. The applicant knew these documents were misleading because they were not issued on the dates that appear on the documents and because the person who purportedly signed them was not employed by the company at the time and could not have signed them on those dates. The Tribunal has formed the view that the applicant had knowingly and deliberately provided misleading employment documents with his application and that reflects poorly on the applicant’s credibility.

3. The applicant told the Tribunal that he should not be penalised for the actions of another person (who prepared these documents) but it is the applicant who chose to submit these employment documents with his visa application. Even if the applicant was given these documents by another person and saw that there were inaccuracies or misleading information contained in the documents, the applicant had the option (and in the Tribunal’s view an obligation) not to submit such documents with his visa application and at least offer an explanation at the time his application was lodged about the content of these documents.

4. The Tribunal finds that the employment documents dated 2007 – 2008, which are described in the primary decision record and which the applicant submitted with the skilled visa  application, are bogus documents because they are counterfeit or altered by a person who had no authority to do so. The Tribunal has formed the view that the submission of these documents by the applicant is an indication that the applicant is not a person of credibility and of his willingness to provide inaccurate or misleading evidence concerning his employment if it assists him with visa grant.

5. The applicant repeatedly told the Tribunal that he has the technical skills and would not have such skills if he did work for that company. The Tribunal does not accept that argument because the applicant could have acquired the technical skills through any employment or through formal education or by other means, so the fact that he has the technical skills does not support his claimed employment.

6. The Tribunal acknowledges the evidence of Mr Mehmood confirming the applicant’s employment. The Tribunal gives his evidence some weight but it does not overcome the Tribunal’s concerns noted above. The Tribunal also acknowledges various documents the applicant presented to the delegate and the Tribunal concerning the company’s operations, as well as other evidence of his employment (such as payslips, bank records and others) but as the Tribunal pointed out in the course of the hearing, the fact that some bogus documents had been submitted with the application causes the Tribunal to question the veracity, or the probative value of other documents. In such circumstances, the Tribunal gives these documents only very limited weight as evidence of the applicant’s employment.

7. The Tribunal has found, having regard to the information set out in the primary decision record, that the company registration certificate is a bogus document because the Tribunal reasonably suspects it is counterfeit. The Tribunal finds that the applicant gave a bogus document to a Minister or an officer. For that reason, the Tribunal finds that the applicant did not comply with s. 103 of the Act. The Tribunal finds that there was non-compliance with s. 103 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

8. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

9. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:

   The correct information

10. The applicant submits that  the company is legitimately operating and that he genuinely worked there. The applicant states that the decision to cancel was based on the finding that the company was not legitimately operating and there is now sufficient evidence of its operations and that is also the evidence of Mr Mehmood. However, as noted above, the Tribunal has significant concerns about the applicant’s evidence and the veracity of the  presented evidence. The Tribunal has formed the view that the employment documents which were purportedly issued in 2007-08 were signed by a person without authority and misrepresent the applicant’s circumstances. The Tribunal has formed the view that the applicant’s awareness that the documents were not signed by the signatory on the dates appearing on these documents, and his decision to submit these with his application, without any explanation of the circumstances in which these were issued, reflect poorly on the applicant’s credibility. The Tribunal has also outlined its concerns with other aspects of the applicant’s evidence, for example his evidence about his salary payments, and found aspects of his claims implausible. These concerns are set out above. Having regard to these matters, the Tribunal has formed the view that the applicant had not been truthful in his claims concerning his employment. The Tribunal has formed the view that the applicant did not work for Punjab Dairy Farming from October 2007 to the date of his visa application, as claimed. The Tribunal therefore finds that the correct information is that the applicant did not complete the employment as claimed.

    The content of the genuine document (if any)

11. The Tribunal has formed the view that  the company registration certificate and the employment documents dated 2007-08 are bogus documents. The applicant claims that these matters were not within his control but the Tribunal is of the view that what documents the applicant submits with his visa application or in response to the NOICC are within the applicant’s control and are the responsibility of the applicant. This is particularly so in relation to the employment documents as the applicant was well aware that these were not issued on the dates that appear on the documents and that at that time they could not have been signed by the signatory whose name appears on these documents. That is, the provision of misleading employment references had been done knowingly and deliberately.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

12. Clause 489.224 required the applicant to achieve a particular score, which is calculated by reference to a variety of factors including employment. Information cited above indicates that the applicant relied on his employment at Punjab Dairy to seek points for employment.

13. The applicant states in his various submissions to the delegate and the Tribunal that the visa was granted on the basis of his employment which was genuine but the Tribunal has formed the view that the applicant did not work for Punjab Dairy Farming as claimed and also that his employment documents dated 2007-08 are bogus documents. The applicant’s employment at Punjab Dairy was considered for the purpose of allocating points and the Tribunal finds that the decision to grant the visa was based, in part, on bogus documents.

    The circumstances in which the non-compliance occurred

14. The applicant told the Tribunal that he provided genuine documents which were provided according to his knowledge and experience and there is ‘nothing wrong’ with his documents. The applicant submits in his evidence of 4 August 2021 that Pakistan does not have a strong system of document archiving and he obtained the documents in accordance with the usual practice.  For the reasons stated above, the Tribunal does not accept the applicant’s evidence.

15. The applicant claims that his employment history is genuine and the fact that the documents were dated in 2008 and were issued ten years later is ‘only a technicality’ which does not affect his employment history. The applicant submits hat he could not control what Mr Mehmoud had provided and he had no control over the company registration document or the source of the document and he had simply relied on what Mr Mehmoud had done. The Tribunal acknowledges that this may be so but the Tribunal’s concerns go beyond the bogus company registration certificate. The Tribunal’s concerns extend to the applicant’s employment records dated 2007-08 and the Tribunal is of the view that the applicant did have control over those and these documents had been provided by the applicant knowingly. The Tribunal has formed the view that the applicant was deliberately involved in the provision of misleading evidence to support his employment claims.

    The present circumstances of the visa holder

16. In his evidence to the delegate and the Tribunal the applicant states that he has been living and working in a regional area, in compliance with the condition of his visa, and had contributed to the economy through the payment of taxes. The applicant states that he is law-abiding and honest person. (The applicant presented to the Tribunal copies of messages exchanged with another person as ‘proof of his honesty’). The applicant told the Tribunal that  he presently works in an abattoir and also at Coles on a part-time basis and he has been living and working in a regional area since his arrival in Australia. The applicant told the Tribunal that he has sponsored his wife but her visa was refused before she entered Australia.

17. The applicant states that he has been experiencing anxiety and depression caused by the uncertainty about this future and would appear as a ‘contemptible person’ in the eyes of family and friends if his visa is cancelled and he would lose everything he had worked for in Australia. The applicant refers to his indentation to remain in Australia with his wife. (His wife is presently in Pakistan.) In his submission of 4 August 2021 the applicant states that he has not been able to obtain a medical report due to lack of mental health services in rural area but the cancellation has taken a huge toll on him and the cancellation of visa would also affect his wife, family and friends. The Tribunal accepts the applicant’s evidence and accepts that the cancellation of the visa would cause considerable hardship to the applicant, in particular because it may prevent the applicant from seeking a permanent visa based on his regional employment and from sponsoring his partner to join him in Australia. The Tribunal also acknowledges that the applicant may be perceived as being dishonest by others if the circumstances leading to the cancellation are known.

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

18. The primary decision record indicates that in response to the first NOICC the applicant provided a company registration certificate which was verified with the relevant authority in Pakistan. The Department was advised that the document was not a genuine document. The applicant submits that he was not responsible for the provision of that document, that he obtained it from his employer and did not know it was bogus. The applicant told the Tribunal that Mr Mehmood explained to him that he obtained the document in 2006, he was not well educated and it was not necessary for the company to be registered. When he obtained the registration document, he did not pay any attention to it as the document was not important and he believed the document to be a genuine document and would not have provided it otherwise. As noted above, the Tribunal has formed the view that  the provision of a bogus document need not occur knowingly.

19. The applicant repeatedly told the Tribunal that he did not provide the company registration document with the visa application but the provision of a bogus document in response to the s.107 Notice constitutes a breach of s. 107(2) of the Act.

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

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

    The time that has elapsed since the non-compliance

21. The application for the visa was made in May 2018 and over three years passed since the non-compliance. The applicant provided a bogus document in response to the first NOICC in February 2020 and about 17 months passed since that non-compliance. The Tribunal does not consider these periods to be significant.

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

22. There are no known breaches of the law and the Tribunal acknowledges the applicant’s evidence that he has been a law-abiding resident of Australia.

    Any contribution made by the holder to the community.

23. The applicant refers to the payment of taxes and he told the Tribunal about financial donations and the help he provided in returning a lost wallet. He claims he has been diligent and hard working and law-abiding since his entry to Australia. The Tribunal accepts that the applicant has made some contribution to the community and that  he has settled in Australia. The applicant also spoke about the contribution he had made in Pakistan.

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

    Whether there would be consequential cancellations under s.140.

25. There are no persons who would be subject to consequential cancellation.

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

26. There are no children who would be affected by the cancellation.

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

27. The applicant told the Tribunal that if his visa is cancelled, his integrity would be destroyed but the Tribunal does not consider such claims give rise to Australia’s protection obligations.

28. The applicant also claims that he is a Shia Muslim and would be targeted for that reason. In his submission of 4 August 2021 the applicant refers to the general situation in Pakistan (the applicant has not presented any country information relevant to his specific circumstances) and refers to the religious unrest and the targeting of Shia Muslims by various groups. However, the applicant told the Tribunal that he had not experienced any problems in the past and he confirms in his declaration of 4 August that he had not raised protection claims previously as he had not experienced any problems with the extremists and intended to rely on his skills. The applicant does not claim that his immediate family, relatives or friends, who may share the same religious beliefs and who remain in Pakistan, had ever been targeted or harmed in any way due to such beliefs or for any other reasons, either in the past or more recently since the applicant’s departure from Pakistan.

29. In oral evidence, the applicant told the Tribunal that the future is uncertain and anything can happen. The Tribunal pointed out that this was a very vague claim. In his post-hearing written submission the applicant’s claims became more forceful as the applicant refers to the prosecution of Shiites and he states that his religious belief would place him in danger from various organisations.

30. The Tribunal considers the applicant’s claims to be mere speculation, at best. The applicant has not presented any probative evidence to indicate that he would be targeted or harmed because of his religion or for any other reason and he has made very generalised statements about religious persecution. As noted above, the applicant’s evidence is that he has not experienced any harm prior to his departure from Pakistan and the applicant does not claim that anyone close to him had experienced such harm. The applicant’s statements appear to be broad and generalised observations about the situation in his home country and a speculative claim that ‘anything can happen’ is not sufficient for the Tribunal to find that Australia’s non-refoulement obligations arise in this case.

31. The Tribunal is mindful that the applicant has not raised any protection claims in his responses to the NOICC, despite providing extensive evidence and submissions to the delegate. The Tribunal acknowledges the applicant’s claim that raising protection claims is a ‘last resort’ for him as he preferred to rely on his experience but the applicant was given the opportunity to address discretionary factors, which included Australia’s non-refoulement obligations, and in the Tribunal’s view he would have raised these concerns if he genuinely held them, when expressly invited to do so. The Tribunal has formed view that the applicant does not have a genuine fear of harm upon returning to Pakistan and that his present claims about his fear of being subjected to religious violence is a recent invention.

1. It is also important to note that the cancellation of the applicant's visa in itself would not be in breach of any of Australia's non-refoulement obligations. These obligations may be breached only if the applicant was forcibly removed from Australia. An applicant whose visa is cancelled and who becomes an unlawful non-citizen is liable to be removed from Australia. Section 197C of the Act provides that the existence of non-refoulement obligations to a person is 'irrelevant' to the removal of a person, and the duty of an officer under s.198 of the Act to remove a person 'as soon as reasonably practicable.' However, Departmental policy states that a non-citizen would not be removed where Australia would be in breach of its non-refoulement obligations under the aforementioned international agreements. The Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

2. The Tribunal therefore does not consider that the cancellation of the visa would lead to a breach of Australia’s non-refoulement obligations or other obligations arising under the various Conventions.

3. The applicant has no family in Australia and the family unity obligations would not be breached by the cancellation.

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

4. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia without the Minister’s intervention although there would be limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some offshore visa applications. The cancellation of the temporary visa may mean that the applicant would have very limited options in seeking a permanent visa. Further, if the applicant is not a holder of an Australian visa, he cannot sponsor his partner for an Australian visa.

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

5. The applicant referred to the hardship that he would experience as a result of the cancellation. Some of his claims have been addressed above and the Tribunal accepts that  hardship would be caused to the applicant, and potentially his family as a result of the cancellation, partly because it would preclude the applicant from seeking a permanent skilled visa in Australia and sponsoring his partner for that visa.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave a bogus document to the Minister or an officer and that there are grounds for cancelling his visa because the applicant had not complied with s. 103 of the Act. The Tribunal notes that there are some considerations that are against the cancellation. In particular, the applicant has been residing and working in a regional area, has made a contribution to the community and wishes to remain in Australia permanently, which he may find more difficult to do if his visa is cancelled. The cancellation of the visa would affect the applicant’s opportunities to remain in Australia and seek other visas in Australia and would also prevent his wife from being granted a visa sponsored by the applicant. The Tribunal acknowledges that the cancellation of the visa may cause considerable hardship to the applicant and his family. The Tribunal also acknowledges the applicant’s evidence concerning the effect of the cancellation on his mental health and his concerns about the way he would be perceived by others if considered to be dishonest. These factors weigh against the cancellation.

7. However, the Tribunal has formed the view that there are significant factors that favour the cancellation. The bogus document related to the registration of the company where the applicant claimed to be employed applicant’s employment and the Tribunal has formed the view that the applicant was otherwise untruthful in his claims concerning his employment. The Tribunal places significant weight on the fact that the applicant’s employment documents issued in 2007 – 08 which he presented as contemptuous evidence of his employment, had been misleading, signed by a person without authority (at the time of the purported signing) and these documents were highly significant to the assessment of the applicant’s claimed employment and to the decision to grant him the visa. The Tribunal place weight on the adverse outcome of the Department’s investigations concerning the company’s existence, and although the applicant had provided some explanations with respect to those, the Tribunal found some of the applicant’s claims unpersuasive. Essentially, the Tribunal has formed the view that the applicant had not provided truthful evidence concerning his employment at Punjab Dairy and such employment was highly relevant to the applicant’s eligibility for the visa.

8. The Tribunal has formed the view that the cancellation of the visa would not result in a breach of Australia’s international obligations and would not affect any children. The Tribunal finds that the factors that favour the cancellation outweigh those that are against the cancellation.

9. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

    Kira Raif
    Senior Member