Ikram (Migration)

[2021] AATA 3256

Ikram (Migration) [2021] AATA 3256 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mias Hossain Ikram

CASE NUMBER:  2014025

HOME AFFAIRS REFERENCE(S):          BCC2020/1690107

MEMBER:Bridget Cullen

DATE:16 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 16 June 2021 at 11.23am

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – incorrect information in visa application – previous name, visas and overstay not declared – adopted new identity after threats and attacks as member of student wing of political party – discretion to cancel visa – lengthy residence – best interests of child – wife pregnant with second child – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109

Migration Regulations 1994 (Cth), r 2.41

CASE

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa holder did not comply with s.101(b) of the Act by giving and providing incorrect answers on his visa application. The delegate decided to cancel the visa after considering whether they should cancel, after considering the discretionary factors as required by s.109. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 9 December 2020 to give evidence and present arguments. 

4. The applicant was represented in relation to the review by his registered migration agent, Mr Yunyang Gao, of MyVisa Australia Pty Ltd (MARN 2014820). The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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. Extracts of the Act relevant to this case are attached to this decision.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

9. The Tribunal, in making its decision, has the following evidence and material provided to it:

   ·The Department’s file, which contains the material before the delegate when they made the decision to cancel the applicant’s visa;

   ·Submissions from the applicant’s representative, dated 7 December 2020;

   ·Statutory Declaration from the applicant and his wife;

   ·Three reference letters;

   ·Photos of the applicant’s son;

   ·A statement from Alhaj Hasan Uddin Sarker, President of the Gazipu City Branch of the Bangladesh Nationalist Party, dated 14 October 2018;

   ·Bank Record from 2019, which shows two donations to the Turkish Islamic Society of Victoria, in Coburg; and

   ·A Medical Certificate completed on 7 December 2020, certifying that the applicant’s wife is pregnant and has an expected due date of 12 August 2021.

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

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:

    -The applicant applied for the visa on 7 July 2017, being eligible to apply for having worked for his employer for the required minimum of two years on a Subclass 457 visa. This visa was granted on 9 March 2018;

    -The applicant, on his application form for the visa, the visa holder provided that his name, as per his passport, was Abm Quamruzzaman, born on [Date 1], and that they were not known by any other names and repeated this for the critical data information section, stating this information was correct;

    -The applicant declared that he had not overstayed a visa in any country (including Australia);

    -The applicant provided a National Police Certificate (Australian), Police Clearance Certificate (Bangladeshi), birth certificate and passport all issued under the name Abm Quamruzzaman, born [Date 1];

    -The applicant legally changed his name on 15 October 2019 to Mias Ikram Hossain;

    -Following the grant of the visa, forensic biometric checking was undertaken revealed the applicant had previously been granted a Student visa in 2002 under the name MD Ikram Hossain, born on [Date 2], and the examination concluded that there were indications the facial images represent the same person, and no unexplainable dissimilarities were present; and

    -The applicant, under the identity of MD Ikram Hossain, was granted a further visa in Student visa 2002, with a cease date of 20 July 2003. Department records revealed that the applicant was unlawful in Australia from 21 July 2003 to 15 November 2015, before being granted a Bridging visa E on 16 November 2005, from which the applicant remained lawful in Australia until his departure on 28 December 2005.

11. The Department therefore considered that the applicant provided an incorrect answer by stating no that he was currently, or previously known by any other names (by being known as MD Ikram Hossain), and that the applicant provided an incorrect answer when he stated that he had never overstayed a visa in any country (including Australia). The delegate was therefore satisfied that non-compliance occurred with s.101(b) of the Act.

12. It is worth noting that the applicant, both in response to the Notice of Intention to Consider Cancellation, dated 29 August 2020, and in the representative submissions to the Tribunal, dated 7 December 2020, does not dispute that non-compliance with s.101(b) occurred.

13. As the applicant does not dispute that there is a ground for cancellation, and the Tribunal agrees with the delegate’s reasoning that a ground for cancellation exists, the Tribunal does not consider it necessary to further consider whether there was non-compliance with s.101(b) by the applicant.

14. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

15. 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).

16. 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.

17. 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.

    ·     the correct information

18. The correct information before the Tribunal is that the former visa applicant was known under a different identity at the time of their EN-186 visa application and had previously overstayed visas in Australia.

19. The Department’s forensic biometric testing undertaken when the applicant was applying for Australian citizenship revealed that the applicant had previously been granted Student and Bridging Visas, under the name of MD Ikram Hossain, born on [Date 2]; and was unlawful in Australia from July 2003 to November 2005.

20. The Tribunal considers the provision of a false identity by the applicant, to facilitate his entry to Australia, to be a very serious matter that cuts to the core of the integrity of Australia’s visa system. This is compounded by the lengthy period that the applicant was unlawful for, during his time in Australia. The applicant has demonstrated that he will not be truthful in  visa application processes, and the Tribunal weighs this very strongly in favour of cancellation of the visa.

    ·     the content of the genuine document (if any)

21. The applicant’s visa and subsequent cancellation were not based on bogus documents, and as such, the Tribunal does not consider it appropriate to weigh this section for or against affirming the visa cancellation.

    ·     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

22. The applicant’s visas since his return to Australia were granted pursuant to a migration pathway whereby the applicant provided knowingly incorrect information (being his identity and not providing his previous identity). As a result, the applicant was both able to apply and be successful in applying for previous visas and his Class EN visa, that, according to the delegate, if the Department had been aware of, would not have been possible.

23. The Tribunal takes a very dim view of the applicant’s conduct, which has led to his obtaining a visa that he would not otherwise have been entitled to. The Tribunal weighs this very strongly in favour of cancellation of the visa, which the applicant should not have obtained in the first instance.

    ·     the circumstances in which the non-compliance occurred

24. The representative submissions state that the applicant returned to Bangladesh from Australia in 2005 and was subsequently physically assaulted and received multiple death threats because of his active involvement in the ‘student wing’ of the Bangladesh National Party. The applicant obtained identity documents, in Bangladesh, for the identity of ABM Quamruzzaman from an education agent as a result of the above.

25. Further, the applicant says that he did not have any ID documents to establish his real identity, and was why he applied for visas in the false name “ABM Quamruzzaman”.

26. The Tribunal has considered the applicant’s submissions in relation to his reasons for the false identity. The Tribunal has considered the letter from Nazmunnaher Nazmunnaher, which says that the applicant had to go into hiding in Bangladesh for his protection because of “rival parties”. The Tribunal does not accept that, even if the information the applicant has provided is correct, that it affords a basis to explain the applicant’s conduct. The applicant had an obligation to provide truthful information to the Department at all times. The Tribunal considers the circumstances in which the non-compliance occurred to be a factor that should be weighed in favour of cancellation.

    ·     the present circumstances of the visa holder

27. The representative submissions of 7 December 2020 state that the applicant has now been in Australia for more than 10 years, having built a family a home and securing a job. The applicant’s wife (pregnant with their second child), 10-year old son, and friends now also reside in Australia.

28. The applicant has provided a medical certificate indicating that his wife’s expected due date is 12 August 2021. The applicant’s wife has outlined the difficulties that confront her and their young son if this visa is cancelled, in a statutory declaration.

29. The Tribunal accepts that the applicant, and his wife, will suffer as a consequence of cancellation. The applicant has built his foundations in Australia on what is essentially a house of cards. The applicant knowingly took the risks associated with misrepresenting his true identity and was therefore aware that the true information could come to light at any point, jeopardising his circumstances.

30. It is unfortunate that the applicant is in these difficult circumstances, where he will have to rebuild his life in his home country after a lengthy absence. The Tribunal gives these factors some weight in favour of not cancelling the visa.

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

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

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

31. The Tribunal is not aware of any information indicating there has been a breach of any laws since the non-compliance, and the Tribunal is not aware of any other instances of non-compliance by the applicant. The Tribunal is not aware of any further concerns arising from the applicant’s subsequent behaviour, following cancellation. While compliance with visa conditions and Australia’s laws is expected by the applicant, the Tribunal gives this a little weight in favour of not cancelling the applicant’s visa.

    ·     the time that has elapsed since the non-compliance

32. Although some time has elapsed since the non-compliance, this is only because the non-compliance was not detected earlier. The Tribunal considers that the applicant has benefitted from his non-compliance, by effectively extending his stay in Australia well beyond the time he would otherwise have been entitled to remain. The Tribunal does not weigh the length of time since non-compliance as a factor for, or against, cancellation.

    ·     any contribution made by the holder to the community

33. The applicant has provided supporting statements from friends, and his employer, which assert that he is a hard-working, reliable member of the community. The Tribunal accepts that the applicant has been contributing to the community by participating in a number of community services, including buying groceries for elderly persons during the COVID-19 pandemic. The Tribunal accepts that the applicant has also made some monetary donations to benefit the Islamic community.

34. While these contributions are positive, they are the routine type of contributions that community minded persons make. They are not extraordinary or of a noteworthy scale. Regardless, the Tribunal views these contributions in a favourable light and gives them a small amount of weight in favour of not cancelling the visa.

    ·     whether there would be consequential cancellations under s.140

35. The visas of the applicant’s wife and child (aged 10 at the time of this decision) would remain cancelled as a consequence of the applicant’s visa remaining cancelled. The applicant’s child was aged 5 at the time he moved to Australia with his mother (the applicant’s wife).

    ·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. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

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

36. Although the Tribunal accepts that there would be a period of adjustment for the applicant’s wife and son, they are returning to their home country, and are familiar with the customs and language. The Tribunal considers that the son’s young age will facilitate his adaptation to a new schooling environment. The Tribunal gives some weight to the needs and desires of the applicant’s wife and son but is not satisfied that these factors alone ameliorate the serious breach and non-compliance by the applicant.

    ·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.

37. The Tribunal has considered that the former visa holder would be an unlawful non-citizen if their substantive visa is cancelled and may be detained under s.189 of the Act; and removed from Australia under s.198 of the Act. The Tribunal has also considered the applicant becoming subject to s.48 of the Act, which will prevent the applicant from applying for certain visa types while remaining in Australia, and their affectation by PIC 4013, limiting the grant of temporary visas for a specified period.

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

38. The Tribunal gives the behaviour outlined above, whereby the applicant provided the Department with incorrect identity information, and was unlawful for a lengthy period, significant weight in favour of cancellation. The behaviour indicates an intentional willingness to circumvent the requirements of the Australian Migration Act and Regulations. The behaviour shows planning and duplicitous dealing by the applicant that took some time and effort to mislead Australian authorities. The applicant provided incorrect information on visa applications, resulting in obtaining visas that he was not entitled to.

39. 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

40. The Tribunal affirms the decision to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

    Bridget Cullen
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.