Janghorbani (Migration) - [2022] AATA 656

Janghorbani (Migration) [2022] AATA 656 (22 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohammadreza Janghorbani
REPRESENTATIVE:  Mr Alireza Majazi Amiri (MARN: 1801203)
CASE NUMBER:  2002016
HOME AFFAIRS REFERENCE(S):          BCC2017/3826460
MEMBER:Antonio Dronjic
DATE:22 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 22 March 2022 at 2:21pm
CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) – Subclass 189 (Skilled – Independent) – incorrect answers and bogus document given in visa application – English language test – facial image comparison of photos on passports and test report, and two dob-in letters – paid another person to undertake test – discretion to cancel visa – no attempt to undertake any test – non-compliance conceded only after facial image comparison – wife a permanent resident with application for citizenship in progress, and pregnant with first child – no consideration of best interests of unborn child – ownership of business employing apprentices – hardship if visa cancelled – possibility of applying for partner visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 103, 107, 109(1), (2), 375A
Migration Regulations 1994 (Cth), r 2.26AC, 2.41, Schedule 2, cl 189.213, Schedule 6D
CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1459
COT15 v MIBP (No 1) (2015) 236 FCR 148
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
MIAC v Khadgi (2010) 190 FCR 248
Moller v MIAC [2007] FMCA 168
Re Drake (No 2) (1979) 2 ALD 634
Sakhno v MIAC [2007] FMCA 1492

Vishnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 January 2020 to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the visa holder has not complied with s 103 and s 101(b) of the Act as the delegate concluded that the visa holder provided a bogus document in the form of an International English Language Testing System (lELTS) Test Report Form (TRF) and incorrect answers in his electronic application form for a Subclass 189 visa submitted to the Department on 2 May 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant’s immigration history
Mr Janghorbani applied for a Subclass 189 visa on 2 May 2016. In the visa application form, he declared that he undertook an IELTS test on 8 October 2015 in Armenia and achieved a proficient level of English language. A copy of the IELTS TRF and his passport issued on 28 March 2015 were submitted with his visa application. Based on the information provided in his Skilled - Independent visa application and documentary evidence submitted with the visa application, Mr Janghorbani was granted his Skilled - Independent visa on 9 June 2016.
According to the primary decision record submitted by the applicant with his review application, on 7 April 2019, he submitted a ‘Change of Passport Details’ form to the Department with a copy of his new Iranian passport issued on 30 March 2019.
On 25 November 2019 the Department’s Facial Image Comparison (FIC) unit conducted a facial image comparison between the applicant’s photos obtained from his two Iranian passports and the photo purporting to be the applicant on his lELTS test report. The FIC unit’s specialist forensic facial image examiner has determined that there are indications the facial image of the person depicted on the applicant’s lELTS test report is not of the same person depicted on the applicant’s two Iranian passports.
The Notice of Intention to Consider Cancellation (NOICC) was issued by the Department on 12 December 2019. The applicant responded to the NOICC on 26 December 2019 and 17 January 2020 conceding, inter alia that, with his visa application, he provided a bogus document in the form of the lELTS TRF to the Department.
According to the primary decision record, the applicant travelled to Armenia on 17 April 2015 to undertake the IELTS test. He admitted to paying a third person 280 Iranian Rial (approximately AUD10,000) to undertake the test on 18 April 2015 on his behalf. As the initial test results were not suitable for the visa application purposes, the applicant again travelled to Armenia on 7 October 2015 and the same person took the lELTS test on 8 October 2015. When Mr Janghorbani received the results, he realised his writing skills score was half a band below the required level. He successfully appealed and on 9 December 2015 he was issued the lELTS test report.
After considering the applicant’s claims and evidence as to why his visa shouldn’t be cancelled, the delegate proceeded to cancel his visa on 31 January 2020.
On 4 February 2020, the applicant applied to this Tribunal for a review of the delegate’s visa cancellation decision. A copy of the delegate’s decision record accompanied the applicant’s application for the review.
On 13 December 2021, the Tribunal wrote to the applicant informing him that the Department’s file contains a non-disclosure certificate issued by the Department on 26 February 2020 under s 375A of the Act. The Tribunal informed the applicant of its view that the certificate is valid and invited the applicant to provide his comments on the validity of the certificate that was enclosed with the Tribunal’s letter. No written submissions were made on the issue of validity.
On 18 January 2022, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 1 February 2022. Due to circumstances beyond the Tribunal’s control the Member was unable to conduct the hearing on that day. The new hearing invitation was sent on 16 February 2022 inviting the applicant to attend a video hearing on 8 March 2022.
On 6 March 2022, the applicant’s representative provided legal submissions and additional documentary evidence in support of the application. The list of documents is attached to this decision and marked as Attachment A.
The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, Ms Ladan Babaei, Mr Ashkan Mokari, an apprentice employed at the applicant’s business and Ms Cynthia Quiambo, the manager of charity organisation Turning Point Support Centre where the applicant is volunteering.
The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal exercised its discretion to hold the hearing via video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Non-disclosure certificate – s 375A
At the commencement of the hearing, the Tribunal noted that the Tribunal wrote to the applicant on 13 December 2021, informing him that the Department’s file contains a non-disclosure certificate issued by the Department on 26 February 2020 under s 375A of the Act. Despite the Tribunal’s invitation to the applicant to provide his comment on the validity of this certificate, no written response was received.
The Tribunal explained to the applicant that the certificate prevents the disclosure of certain information held on the Department’s file. The Tribunal further explained that information covered by the certificate mostly relates to the Department’s procedure regarding the Facial Image Comparison report, details of which were contained in the Department’s primary decision record that he submitted to the Tribunal with the review application, and two dob-in letters informing the Department that he used a third person to undertake the IELTS test.
The Tribunal further noted that some of the information in the documents had already been disclosed to him in the NOICC (the s 107 notice) and included in the delegate’s decision record. The Tribunal noted that in his response to the NOICC, the applicant conceded to paying a third person to undertake the IELTS tests on his behalf.
The applicant did not wish to make any comments on the validity of the certificate. In considering the validity of the certificate for itself, the Tribunal is satisfied that the certificate, which was signed by a delegate of the Minister on 26 February 2020, identifies valid public interest reasons for non-disclosure of the specified documents. The Tribunal is satisfied that the s 375A certificate is valid. The Tribunal is also satisfied that any relevant information contained in the documents covered by the certificate has been disclosed to the applicant.
The applicant is 33 years of age and a national of Iran. He is married to Ms Babaei who is currently pregnant and is expecting her first child in October 2022. In Iran, the applicant completed both bachelor’s and master’s degrees in electrical engineering. For approximately four years before arriving in Australia he was employed as an electrical engineer. His parents and only brother live in Iran and he has no blood relatives in Australia. He gave evidence that he does not own property in Iran and was living with his parents prior to arriving to Australia on 11 November 2016 as a holder of a Subclass 189 visa.
When questioned by the Tribunal, the applicant gave evidence that in 2016 he also applied for a Canadian permanent visa and that, with that application, he submitted the same IELTS TRF as he submitted to the Australian Department. He further stated in his evidence that, after he was granted an Australian visa, he withdrew the application made to Canadian authorities.
He has travelled to Iran on four occasions since his initial arrival to Australia. His latest travel was in December 2019. He wanted to see his parents and collect some documents requested by his migration agent.
When questioned by the Tribunal, the applicant stated that he has never undertaken an IELTS or any other official English language test. He neither tried to undertake the test before submitting his visa application nor after arriving in Australia.
Mr Janghorbani confirmed in his evidence that in October 2019, he registered his business Axial Electric Pty Ltd. The business currently employs three apprentices and one subcontractor. Two other persons recently completed their four-year apprenticeship at the applicant’s business. In April 2021, the applicant obtained a licence to sell solar panels and is presently both installing and selling them.
The business was closed for approximately 100 days during the peak of the COVID-19 pandemic. When questioned by the Tribunal, the applicant stated that he was not working at the business during the time he was holding a bridging visa that contained a no work condition (from 26 August 2020 to 9 December 2020). He gave evidence that his friend helped him manage the business during this time, that he did not receive remuneration during this time, but he remained involved in managing the business in his capacity of a business owner.
The applicant’s representative submitted that the applicant applied to the Department to have the 8101 (no work) condition removed from his bridging visa on 5 November 2020 and that a bridging visa E, which did not have this condition, was granted to the applicant on 4 December 2020. He further submitted that according to unspecified Court authority, being the owner of the business does not mean that a person is working at that business.
In his evidence, the applicant again conceded that he provided a bogus document to the Department and provided incorrect information in the visa application form. He stated that he did not plan to use a third person to do the test on his behalf, that he was anxious before the test and when the trip organisers suggested that someone else undertake the test on his behalf, he accepted it.
The Tribunal noted that the first IELTS test results were not satisfactory and that he travelled to Armenia on 7 October 2015 and asked the same person to undertake the second test on 8 October 2015. The Tribunal expressed its concerns that this was a deliberate attempt to deceive the Department and that he knowingly provided a bogus document to the Department.
The applicant stated that he did not know that he was doing something wrong until he spoke to his migration agent. The Tribunal noted that it is difficult to accept this claim and that the applicant should have been aware that using a third person to undertake the IELTS test on his behalf was a wrong and dishonest act.
The Tribunal informed the applicant that, based on the evidence before it, the Tribunal is satisfied that the NOICC issued on 12 December 2019 contains sufficient particulars to enable the applicant to identify and address the issues and that the delegate had reached the necessary state of mind to engage s 107. Based on the evidence before it, the Tribunal is satisfied that the notice issued under s 107 complied with the statutory requirements.
The Tribunal explained that the cancellation power contained in s 109 is discretionary and that, if the Tribunal finds that there was non-compliance in the way described in the s 107 notice, the Tribunal has discretion as to whether the applicant’s visa should be cancelled. In doing so the Tribunal is required to consider the circumstances prescribed in reg 2.41 and should also have regard to any lawful government policy.
The Tribunal noted that on 6 March 2022, the applicant’s representative provided submissions and supporting documentary evidence addressing reg 2.41 and government policy. The applicant confirmed that he had read and understood the representative’s submissions. The Tribunal asked if there is anything else, that was not stated in the submissions, he would like to bring to the Tribunal’s attention.
The applicant stated that the IELTS test was undertaken in Armenia and that people who organised travel and accommodation in Armenia introduced him to a person who undertook the IELTS test on his behalf. He stated that he made a mistake and trusted the wrong people. He stated that he is profoundly apologetic and sorry for what he did.
Oral evidence of Ms Babaei
In her evidence Ms Babaei stated that she first came to Australia in June 2017 as a holder of a Skilled visa, Subclass 189. Her relationship with the applicant commenced in May 2018. At the same time, they started living together despite not having approval from their parents.
Ms Babaei is an Iranian citizen. Her parents live in Iran and her only sister in Germany. She does not have any relatives in Australia. She does not own property in Iran under her name. In Iran, she completed both bachelor’s and master’s degrees in naval architecture. For approximately eight years she worked in Iran as a marine designer.
For the past three years, Ms Babaei has been working as a process engineer in Australia. She confirmed in her evidence that she is pregnant and that the expected delivery date is in October 2022. She gave evidence that she is very anxious about her husband’s visa situation.
In her evidence she confirmed that she provided a statutory declaration dated 16 January 2020 to the Department, that everything stated in that declaration is true and correct and that she does not wish to change or add anything to that declaration.
When the Tribunal enquired as to why she would not be able to join her husband in Iran if his visa remains cancelled and he was required to leave Australia, Ms Babaei stated that living in Iran is different and that she would prefer to raise her child in Australia.
She gave evidence that her last travel to Iran was approximately two years ago. She travelled there by herself. When asked by the Tribunal if she experienced any problems travelling and staying in Iran, Ms Babaei stated that she did not and that staying in Iran for a short time is not a problem.
The Tribunal noted that both her family and her husband’s family live in Iran, and that she and her husband have good education and work experience gained both in Iran and Australia. When asked by the Tribunal, Ms Babaei stated that she would be able to find a job in Iran and that her husband did not look for a job in Iran.
Evidence of Mr Ashkan Mokari
Mr Mokari was proposed by the applicant to give a character reference. He gave evidence that he is employed as an apprentice at the applicant’s business. He stated that he has known Mr Janghorbani for approximately five years.
When asked by the Tribunal if he is aware that Mr Janghorbani provided a bogus document to the Department with his visa application, the witness stated that he is not.
When asked by the Tribunal if an honest person would provide a bogus document to the Department, Mr Mokari stated that in his belief they would not.
Evidence of Ms Cynthia Quiambo
Ms Quiambo is a manager of a charity organisation Turning Point Support Centre where the applicant volunteers. She stated that she is not here to give a character reference for the applicant but to confirm that the applicant is volunteering in this organisation and to describe the level of commitment the applicant has towards helping people using the services of this organisation.
Ms Quiambo gave evidence that the applicant approached the organisation in 2019 asking to be a volunteer. After completing necessary requirements, including obtaining a working with children certificate, the applicant commenced volunteering for this organisation on a regular basis. She described the applicant as being consistent in helping people and passionate about his volunteering work. During the COVID-19 pandemic, he was always ready to help and deliver food to vulnerable people using the services of this organisation.
When asked by the Tribunal if she is aware that Mr Janghorbani provided a bogus document to the Department with his visa application, Ms Quiambo stated that he told her about his visa problem some 12 months ago. She is aware that his visa was cancelled because another person did the IELTS test on his behalf. She told the applicant that he made a big mistake and that he will have to pay the price for that mistake. She also told the applicant that he will need to pray for a miracle.
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
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.
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 as Attachment B.

In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
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 103 and s 101(b) of the Act and was based on provision of a bogus document in the form of an lELTS TRF and incorrect answers in his electronic application form for a Subclass 189 visa submitted to the Department on 2 May 2016.
Based on the evidence before it, including the applicant’s oral evidence, the Tribunal finds that the applicant has not complied with s 103 of the Act. The Tribunal finds that, with his application for a Subclass 189 visa, the applicant provided to the Department a bogus document (within the meaning of s 5(1)(a) of the Act) in the form of an lELTS TRF number 15AM000444JANM001G and dated 8 October 2015.
Based on the evidence before it, including the applicant’s oral evidence, the Tribunal is satisfied that the applicant has not complied with s 101(1)(b) of the Act as he provided incorrect answers in the visa application form by:
·stating ‘Yes’ to have undertaken an English language test within the last 36 months on page nine of the ‘Application for Points Based Skilled Migration Visa’; and
·stating ‘Yes’ to ‘have provided complete and correct information in every detail on this form, and on any attachments to it’ at page 11 of the ‘Application for Points Based Skilled Migration Visa’ form dated 2 May 2016.
For these reasons, the Tribunal finds that there was non-compliance with s 101(1)(b) and s 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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 reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     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
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     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
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
The correct information
The correct information which the applicant was required to provide to the Department was that he did not undertake an English language test within the last 36 months and that he did not provide complete and correct information in every detail on the application form.
The content of any genuine document
It was only after the Department’s FIC unit determined on 25 November 2019 that the facial image of the person depicted on the lELTS test report is not that of the applicant that he admitted that he provided a bogus document to the Department and that an imposter took the lELTS test on his behalf on 8 October 2015.
The Tribunal finds that the applicant provided a bogus document to the Department with the intention to claim a proficient level of English language competency.
Whether the decision to grant the visa was based, wholly or partly, on incorrect information
The grant of the visa was based on the claim that the applicant had achieved a proficient level of English at the IELTS test undertaken on 8 October 2015.
The Tribunal notes that cl 189.213 of Schedule 2 to the Regulations prescribes that, as a primary criterion, the applicant have competent English at the time of invitation to apply for the visa. In the present matter, the applicant was invited to apply for a Subclass 189 visa on 27 April 2016. Failure to provide evidence of competent English at that time would have resulted in the visa refusal. This is so, even if the applicant had undertaken an English language test after receiving the invitation to apply for a Subclass 189 visa.
In addition, Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (reg 2.26AC).
Points are available under Part 6D.2 based on the applicant’s level of English language proficiency at the time of invitation to apply for the visa. In the visa application form, the applicant claimed to have a proficient level of English competency. If so, he would have been entitled to 10 points.
The applicant gave evidence at the hearing that he has never undertaken an English language test himself. Neither before the invitation to apply nor to the present time.
Furthermore, if the delegate was aware that a bogus document was provided in relation to the Subclass 189 visa, this would have attracted the operation of PIC 4020 and the application would have been the subject of further assessment by the delegate. This may have affected the outcome of the visa application, and the applicant may not have been granted the Subclass 189 visa.
The Tribunal is satisfied that the decision to grant the visa to the applicant was based predominantly on incorrect information related to the applicant’s English language proficiency. The Tribunal gives this consideration significant weight in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
On 17 April 2015, the applicant travelled to Armenia with the intention to undertake an IELTS test. A person who organised his accommodation in Armenia introduced the applicant to an intermediary who could organise a third person to undertake the English test on his behalf and instead of the applicant. He paid approximately AUD10,000 for this service and gave his passport to a person named Erfan who undertook the IELTS test on 18 April 2015. After the applicant returned to Iran on 22 April 2015, he was notified that the test results were not suitable for migration to Australia.
On 7 October 2015, the applicant again travelled to Armenia and the same person took the lELTS test on 8 October 2015. The applicant returned to Iran on 11 October 2015. When he received the results, he realised his writing skills score was half a band below the required level. The applicant sought re-marking of the test and was successful. On 9 December 2015 he was issued the lELTS test report with the same date which he subsequently submitted to the Department in relation to his Skilled - Independent visa application.
In his evidence, the applicant claims that he initially travelled to Armenia with the intention to take the English test personally. He claims that he was extremely anxious which led him to accept the offer that someone else undertake the test on his behalf. At the hearing, he stated that he did not realise that he did a wrong thing until he spoke to his migration agent.
The Tribunal does not accept these claims and it finds that the applicant intentionally and deliberately attempted to defraud the Department by providing English language test results completed by an imposter. Not only did he initially agree and pay an imposter a large amount of money to undertake the first IELTS test on his behalf on 18 April 2015, but he asked the same person to undertake the second IELTS test on 8 October 2015. He provided an imposter with his passport and was complicit in this fraudulent activity from the very beginning.
In his response to the NOICC, the applicant acknowledged that his conduct was unacceptable and expressed remorse and regret for having done so. He accepted there was no room for any justification of his actions.
Based on the evidence before it, the Tribunal is satisfied that the applicant knowingly and deliberately provided incorrect answers in the visa application form in respect of his English language proficiency and a bogus document to support these claims. The Tribunal is not satisfied that there are extenuating circumstances outside the applicant’s control, or which would mitigate the non-compliance. The Tribunal gives this consideration significant weight in favour of cancelling the visa.
Present circumstances of the applicant
The applicant has lived in Australia for over five years. He is married and is expecting his first child in October 2022. From October 2019 to the present time, he has been operating his own business Axial Electric Pty Ltd which currently employs three apprentices and one subcontractor. Together with his wife, he purchased residential property and has taken a mortgage from the Commonwealth Bank. His wife is an Australian permanent resident and, according to the applicant’s submissions, has lodged her application for Australian citizenship. The applicant’s visa cancellation will not impact her residential status in Australia. The applicant stated that he is an active community member and had helped new arrivals to settle in Australia.
The Tribunal accepts that the applicant has lived in Australia for over five years, and that during that time he has established emotional, social, financial and employment ties in Australia. The Tribunal also accepts that the applicant has married Ms Babaei, who is an Australian permanent resident and that they expect their first child in October 2022. On this basis, the Tribunal also accepts that the applicant has established family ties to Australia.
Both the applicant and his wife stated that they would prefer to continue to reside in Australia and raise their child in this country. The Tribunal considers that the applicant’s current circumstances weigh in favour of not cancelling the visa. However, this consideration must be balanced against other factors to which the Tribunal must have regard.
Subsequent behaviour of the applicant
It was submitted that the applicant has no record of breaching the law either prior to or following the provision of the bogus IELTS document. It was further submitted that the applicant is an honest person by his nature who has assimilated well into Australian society. Upon arrival to Australia, he completed several courses to improve his vocational prospects.
The Tribunal notes that the applicant only conceded that he submitted a bogus document with his visa application and provided incorrect answers on the visa application form after the Department’s FIC unit determined on 25 November 2019 that the facial image of the person depicted on the lELTS test report is not that of the applicant.
Finally, based on the evidence given by the applicant the Tribunal finds that the applicant has never undertaken an English language test himself. Neither before the invitation to apply nor to the present time.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
Any other instances of non-compliance
There is no information before the Tribunal that the applicant has failed to comply with any other direction of the Department or that there are any other instances of non-compliance. The Tribunal gives this consideration some weight against cancelling the visa.
The time that has elapsed since the non-compliance
The non-compliance occurred on 2 May 2016 when the applicant applied for his Skilled - Independent visa. As more than five years have elapsed since the non-compliance occurred, the Tribunal gives this consideration a little weight against cancelling the visa.
Breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal relevant to any breaches of law by the applicant since the noted non-compliance. Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.
Contributions made to the community
It is submitted and the Tribunal accepts that the applicant has contributed to the Australian community by supporting disoriented new arrivals, helping the homeless, caring for stray animals, donating blood and plasma, and tending the elderly in nursing homes.
The Tribunal further accepts that in 2019, the applicant expressed his interest to volunteer for the Country Fire Authority and joined Turning Point Support Centre as a volunteer and that he is a registered organ donor. The Tribunal gives this consideration some weight against cancelling the visa.
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 Procedures 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 Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634.
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].
In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.
Whether there would be consequential cancellations under s 140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s 140 of the Act. The Tribunal gives no weight to this consideration.
If there are children whose interests would be affected by cancellation, or consequential cancellation
The applicant is married to Ms Babaei who is an Australian permanent resident and who is pregnant with their first child. The expected delivery is October 2022.
The obligation to consider the best interests of the child applies to those children who are under 18 years old (noting that the child must have already been born) and the obligations apply only to children who are within Australia’s territory or jurisdiction.
Accordingly, the Tribunal does not have to consider the best interest of an unborn child as a primary consideration.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
The applicant has not claimed that cancellation of his visa would lead to a breach of Australia’s non-refoulement obligations. The applicant has not claimed in his written or oral evidence that he could not return to Iran. Since initially arriving in Australia in November 2016, he travelled to Iran on four occasions. His most recent travel to Iran was in December 2019.
In her post hearing statement, the applicant’s wife stated that if her husband’s visa remains cancelled, she and her husband would be separated. The Tribunal notes that cancellation of the applicant’s visa would not necessarily lead to the applicant’s removal and separation from Ms Babaei. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.
Having regard to the applicant’s evidence that Ms Babaei is an Australian permanent resident, the applicant may be eligible to apply for a partner visa (either onshore or offshore) based on his marriage. If the applicant applies for the partner visa offshore, then Ms Babaei (who is also a citizen of Iran) could, if she so wished, travel to Iran to be with the applicant until his visa application has been processed. Both the applicant and his wife speak Persian. They have completed education and worked in Iran. Most of their respective families reside in Iran.
The Tribunal also considers that if the applicant returns to Iran to lodge his visa application and if Ms Babaei is unable to travel to be with him, then any physical separation between them would only be temporary, i.e., for the duration of the visa processing time.
The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration.
Article 3.1 of the CRC states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.
As previously noted, the obligation to consider the best interests of the child applies to those children who are under 18 years old (noting that the child must have already been born).

100. The applicant’s wife is an Australian permanent resident and is pregnant with their first child. The expected delivery is October 2022. Accordingly, the Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.
101. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.
102. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.
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

103. In considering the mandatory legal consequences of cancellation, the Tribunal notes the applicant will only become an unlawful non-citizen and liable for detention and removal if he does not depart Australia within the validity of any bridging visa he currently holds or if he is not granted another visa to remain in Australia. If the visa is cancelled, the applicant will be affected by s 48 of the Act, which limits the types of visas he can apply for onshore. The applicant may also be subject to an exclusion period in relation to future temporary visa applications.
104. The Tribunal notes, however, that a partner visa is one of the specified visas that can be applied for onshore (i.e., it is not affected by s 48). Given the applicant’s evidence that his wife is a permanent resident, the applicant may be eligible to apply for a partner visa onshore. It is also open for the applicant to apply for the partner visa from offshore.
105. The Tribunal considers that the mandatory consequences of cancellation are intended by the legislation. However, the applicant may still be eligible to apply for a partner visa based on his relationship with an Australian permanent resident. For these reasons the Tribunal gives this consideration limited weight in favour of not cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
106. The applicant stated that he has been in Australia for more than five years and has integrated into the Australian community. He gave evidence that he is an active community member and had helped new arrivals to settle in Australia. The applicant is and has been operating his own business since October 2019. The applicant and his wife purchased a property and have a considerable mortgage with the Commonwealth Bank.
107. The applicant submitted that his visa cancellation and removal from Australia would dramatically impact his wife’s mental health and impact their life. He further submitted and provided supporting documentary evidence in support of his claim that his wife is suffering from anxiety and depression and has sought professional help. The Tribunal has considered the applicant’s evidence and accepts that, if the applicant’s visa remains cancelled, his wife’s mental health may be adversely impacted.
108. The applicant’s wife gave evidence that she does not want to be separated from her husband. As previously noted, the applicant’s wife is an Australian permanent resident. She is pregnant and the expected delivery is October 2022. She stated in her evidence and submissions that her child will be eligible for an Australian citizenship and that she would prefer to raise her child in Australia.
109. The Tribunal has considered the applicant’s evidence and accepts that the applicant has established himself in Australia, where he has his wife, friends, employment and property. The Tribunal accepts that the applicant’s child may be born in Australia and may be eligible for an Australian citizenship.
110. The Tribunal accepts that if the applicant’s visa remains cancelled, and the applicant must return to Iran, then this is likely to cause emotional and financial hardship for the applicant and his wife. The Tribunal also accepts that if the applicant is unable to remain in Australia, he will not be able to continue to operate his business and may have to sell his property if he cannot maintain the mortgage repayments.
111. Considering the applicant’s educational background and employment history both in Iran and Australia, the Tribunal does not accept the applicant’s claim that he would not be able to secure suitable employment in Iran.
112. The Tribunal accepts that hardship may be caused to the applicant and his wife if the applicant’s visa remains cancelled, and he must return to Iran. However, as discussed above, the applicant may be eligible to apply for a partner visa in Australia based on his relationship with Ms Babaei. Nevertheless, the Tribunal acknowledges the hardship that may be experienced if the applicant’s visa remains cancelled. The Tribunal gives this consideration some weight in favour of not cancelling the visa.
113. The Tribunal has considered all the circumstances of the applicant and his wife both individually and cumulatively. The Tribunal finds that the applicant provided both incorrect answers in the visa application form and a bogus document which led to the applicant being granted a permanent residence visa. Had the Department been aware of the incorrect information and bogus document, the applicant would not have been granted the visa.
114. Considering all the circumstances above, the Tribunal finds that the reason for cancelling the applicant’s visa outweighs any factors, both individually and cumulatively, why his visa should not be cancelled.
115. 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
116. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.
Antonio Dronjic
Member

ATTACHMENT A – Document List
·Submissions from the review applicant’s representative (Undated)
·AFP National Police Check Certificate dated 20 January 2022
·Australian civil marriage certificate registered on 9 December 2020
·Letters of completion of apprenticeship dated 4 March 2022 and 9 February 2022
·CFA expression of interest email correspondence
·Emails from Australian Red Cross Lifeblood regarding blood and plasma donations
·Applicant’s spouse’s mental health report dated 6 February 2022
·Certificate of Appreciation dated 11 December 2020
·Religious marriage certificate dated 3 November 2020
·Applicant’s spouse’s medical certificate for pregnancy issued on 21 February 2022
·Applicant’s academic contribution and citation from a Google scholar search generated on 18 January 2022

ATTACHMENT B – 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.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

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.