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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Janghorbani (Migration)

Details

AGLC: Janghorbani (Migration) [2022] AATA 656
Case: [2022] AATA 656
Decision Date: 22 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed a delegate's decision to cancel Mr. Janghorbani's Skilled Independent (Permanent) (Class SI) visa. The dispute arose from allegations that Mr. Janghorbani provided a bogus document and incorrect information in his visa application, specifically concerning his English language proficiency.

The Tribunal was required to determine whether Mr. Janghorbani had failed to comply with sections 101(1)(b) and 103 of the Migration Act 1958 (Cth), which mandate the provision of correct information and prohibit the submission of bogus documents. If non-compliance was established, the Tribunal then had to consider whether the visa should be cancelled, taking into account the circumstances of the non-compliance and any hardship that might result from cancellation.

The Tribunal found that Mr. Janghorbani had indeed failed to comply with the relevant sections of the Act. Evidence, including a facial image comparison of his passports and the IELTS Test Report Form (TRF), along with his own admissions, established that he paid another person to undertake the English language test on his behalf on two occasions. Consequently, the IELTS TRF submitted with his visa application was a bogus document, and his declaration of having undertaken the test himself was incorrect. The Tribunal considered this non-compliance significant, noting that the grant of the visa was predominantly based on this incorrect information, which would have entitled him to points under the migration scheme.

The Tribunal affirmed the delegate's decision to cancel the visa. While acknowledging the applicant's personal circumstances, including his wife's permanent residency and pregnancy, and the potential hardship of visa cancellation, these factors were not considered sufficient to outweigh the serious nature of the non-compliance. The Tribunal concluded that the decision to cancel the visa was justified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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?

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.