Mohiuddin (Migration)

[2022] AATA 2746

Mohiuddin (Migration) [2022] AATA 2746 (10 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Nouman Mohiuddin

REPRESENTATIVE:  Mr Sanjiv Ahuja (MARN: 1681689)

CASE NUMBER:  2201839

HOME AFFAIRS REFERENCE(S):          BCC2021/2361329

MEMBER:David McCulloch

DATE:10 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 10 August 2022 at 10:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information and bogus document given with visa application – course studied and certificate of completion – course provider’s registration suspended – prohibited from enrolling students and issuing certificates – updated authenticated transcript shows course completed and certificate issued after registration reinstated – conflicting probative evidence from different government authorities – favouring of information which supports applicant’s claims and no satisfaction that information was incorrect or document was bogus – decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 101(b), 103, 107, 109(1)

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 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of India born in 1990. The visa that has been cancelled was granted on 13 October 2020, expiring on 9 September 2023.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 12 January 2022. The applicant provided a response to the NOICC on 25 January 2022.

4. The delegate cancelled the visa under s 109(1) of the Act. The issue in the present case is whether that grounds for cancellation are made out, and if so, whether the visa should be cancelled.

5. The Tribunal on the information before it determined to set aside the cancellation of the visa without requiring a hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice dated 12 January 2022, 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 as follows:

    Particulars of the possible non-compliance:

    I consider that there has been non-compliance with the following sections of the Migration Act 1958:

    Section 101 Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that: (b)      no incorrect answers are given or provided

    Section 103 Bogus 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.

    For the purposes of Subdivision C of the Act, ‘bogus document’ is defined at section 5(1) of the Act as follows:

    Section 5        Interpretation

    (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.

    In relation to the above sections, I note the application of sections 98, 99 and 100 of the Act, which state:

    Section 98      Completion 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.

    Section 99      Information 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.     

    Section 100 Incorrect 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.

    Information provided in your visa application

    On 18 August 2020, you lodged an application for a Student (subclass 500) visa and submitted the electronic form Application for a Student Visa. On page 10 of the application form, under the heading Education history details, you provided the following information:

    Give details of all past studies at secondary level and above.
    Qualification:               Diploma
    Category of study:       Business and Management
    Field of study:             Business and Management, n.e.c.
    Course name:             Diploma of Business
    Institution name:          Institute of Advancing Careers
    Campus:                   Sydney
    Postcode of campus:     2000
    Date from:                 Jun 2019
    Date to:   Jun 2020

    In support of your application for the Student visa, you submitted the following document to support your claimed education history:

    ·Certificate of Completion of a Diploma of Business, purportedly issued by Training Organisation Victoria Pty Ltd trading as Institute of Advancing Careers (“Training Organisation Victoria Pty Ltd”), certificate number 1010208202407, dated 19 June 2020

    Based on the above information, as well as meeting all other relevant criteria, you were granted a Student visa on 13 October 2020.

    Subsequent information received by the Department

    On 10 November 2020, the Australian Skills Quality Authority (ASQA) advised the Australian Border Force (ABF) that the registration of Training Organisation Victoria Pty Ltd was suspended on 5 June 2019. As a result, Training Organisation Victoria Pty Ltd was prohibited from enrolling students in and allowing students to commence a suspended Vocational Education and Training (VET) course or part of a suspended VET course. This suspension was in effect from 12 June 2019 to 12 March 2020, and as such Training Organisation Victoria Pty Ltd could not commence any courses or issue any Certificates of Completion during this period.

    On 14 September 2021, ASQA provided further evidence to ABF advising that records of educational certificates issued by Training Organisation Victoria Pty Ltd submitted to ASQA show that there were no educational certificates issued by Training Organisation Victoria Pty Ltd between 30 January 2020 and 7 July 2021.

    Possible non-compliance with section 101(b)

    I consider that you provided incorrect answers in your application for the Student visa when you:

    ·provided details of your study in a Diploma of Business on page 10 of the visa application form, under the heading Education history details.

    I consider this information is incorrect because on 10 November 2020, ASQA provided ABF with information that Training Organisation Victoria Pty Ltd trading as Institute of Advancing Careers, the Registered Training Organisation (RTO) at which you claim you completed your Diploma of Business from June 2019 to June 2020, had their registration suspended by ASQA on 5 June 2019. The suspension was in effect from 12 June 2019 to 12 March 2020. As a result of the suspension, the RTO was prohibited from enrolling students in, and allowing students to commence VET courses. Further, ASQA provided information to ABF advising that their records show that Training Organisation Victoria Pty Ltd did not issue any Certificates of Completion for the period from 30 January 2020 to 7 July 2021. Based on the above, I consider you did not complete a Diploma of Business at Institute of Advancing Careers as stated in your Student visa application.

    Possible non-compliance with section 103

    I consider that you have not complied with section 103 of the Act because in support of your Student visa application, it appears that you submitted the following bogus document:

    ·Certificate of Completion of a Diploma of Business, purportedly issued by Training Organisation Victoria Pty Ltd trading as Institute of Advancing Careers, certificate number 1010208202407, dated 19 June 2020

    It appears this is a bogus document within the meaning provided at paragraph (b) under section 5(1) of the Act, which states:

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

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

    On 14 September 2021, ASQA provided ABF with information that they were provided with records of educational certificates issued by Training Organisation Victoria Pty Ltd. These records show that there were no certificates issued between 30 January 2020 and 7 July 2021. As your Diploma of Business Certificate of Completion shows an issue date of 19 June 2020, I therefore reasonably suspect that the document is counterfeit or has been altered by a person who does not have authority to do so, as it was not genuinely issued in respect of your claimed study.

    Based on the above information, it appears that you have provided incorrect answers and submitted a bogus document in your Student visa application. I consider therefore that you have not complied with sections 101(b) and 103 of the Act, and accordingly your Student visa may be liable for cancellation under section 109 of the Act.

11. The applicant provided the following response to the s 107 notice by email on 25 January 2022 (not corrected for spelling or grammar):

    I, Muhammad Nouman Mohiuddin, Currently, I’m pursuing Diploma of Banking Services Management leading to Advanced Diploma of Banking Services Management, Western Sydney College, Sydney, Australia. Since childhood, I had a dream to study on an international platform and after visiting Australia I could see an opportunity to develop my career which I decided not to miss. Australia is a lovely country and its attractive features fascinated me to study here. This was the first time I came somewhere to study in a place where everything was new and unknown. It was both happening and exciting for me.

    Hence whilst on Student Subsequent Visa in Australia, I took the admission in RTO college which doesn't gives any COE for the course and because of having less experience and idea regarding the rules, I did not know much about the education system in Australia and trusting the institute I proceeded with my course as the course was being conducted as normal as any other institute and I wasn’t aware of its suspension until I received the NOICC. And this was a very disturbing and stressful situation for me.

    After receiving the following NOICC:

    On 10 November 2020, the Australian Skills Quality Authority (ASQA) advised the Australian Border Force (ABF) that the registration of Training Organisation Victoria Pty Ltd was suspended on 5 June 2019. As a result, Training Organisation Victoria Pty Ltd was prohibited from enrolling students in and allowing students to commence a suspended Vocational Education and Training (VET) course or part of a suspended VET course. This suspension was in effect from 12 June 2019 to 12 March 2020, and as such Training Organization Victoria Pty Ltd could not commence any courses or issue any Certificates of Completion during this period.

    On 14 September 2021, ASQA provided further evidence to ABF advising that records of educational certificates issued by Training Organization Victoria Pty Ltd submitted to ASQA show that there were no educational certificates issued by Training Organization Victoria Pty Ltd between 30 January 2020 and 7 July 2021.

    On 14 September 2021, ASQA provided ABF with information that they were provided with records of educational certificates issued by Training Organisation Victoria Pty Ltd. These records show that there were no certificates issued between 30 January 2020 and 7 July 2021. As your Diploma of Business Certificate of Completion shows an issue date of 19 June 2020, I therefore reasonably suspect that the document is counterfeit or has been altered by a person who does not have authority to do so, as it was not genuinely issued in respect of your claimed study.

    I again contacted the Institute of Advancing Careers today and requested them for further details on my degree and the reason why I was not made aware of their circumstances while I was studying. The institute representative has responded stating that the institute has updated my study record on the USI (I am attaching my USI VET Transcript for your reference) which states that the course was attained and completed in June 2020. I would like to request you to kindly take the decision of my Visa after having a check on my USI details with my updated study record. While chasing up for the course details I realized that the institute staff is not very professional as they have made clerical mistakes from their end which is making me suffer for which I feel I am not to be blamed for.

    By now while living in Australia I have understood the rules and responsibilities that apply to a Student Visa and with all the respect I have always obeyed the rules. And I have never had any intentions to go against these rules. I am in the current situation where I have not made any intentional mistake but have stuck myself in this situation due to choosing the wrong institute to pursue my education.

    Currently I am enrolled in Diploma of Banking Services Management leading to Advanced Diploma of Banking Services Management, Western Sydney College, Sydney, Australia. I have closely checked the subjects offered in this course in Western Sydney College. It covers all the aspects and hence will provide an overall comprehensive knowledge. As evident in the aforementioned paragraph, I am exactly looking for the same in my future course of studies to fulfill my career goal in the future vision. I strongly believe that the subjects offered will help me to understand the practical aspects of the business and corporate world.

    The reason of choosing Banking Management from Western Sydney College, Sydney is that it is one of the few colleges that offer these courses, but it also allows me to find internships soon after I finish due to it being located in Sydney and Sydney is the city where I can utilize my skills on a macro level due to the increased amount of dealing with people and the increased intensity of work. Apart from that, Western Sydney College boasts outstanding faculty and has a collaborative working environment which will allow me to see how I am fairing in this course through the duration of my Diploma and Advanced Diploma.

    The Western Sydney College, Diploma and Advanced Diploma of Banking Services & Management has the clear objective of teaching how to think like an entrepreneur and how to plan to use advanced strategic thinking. This will enable me to critically examine problems and opportunities. By providing analytical frameworks such as risk assessments, cost-benefit analyses and strategic plans I will be able to apply these to any problem or opportunity I encounter while I will be working in the real world. With Banking Services & Management, I will have gained a broad business mindset.

    This qualification provides solid knowledge and depth of understanding of a broad range of theory, practical business strategies and applications. It is suitable for individuals with specialized knowledge and skills to further develop in organizational learning and capability development. The Banking Services & Management would apply to leaders and senior managers, who initiate, establish and build organizational plans and strategies. Western Sydney College gives the best combination of subjects including following components:

    The course outcomes include:

    o Accounting for Managers

    o Business Finance and Accounting Processes

    o Taxation Principles Management

    o Accounting Theory and Auditing

    o Economics and Business Quantitative Research

    o The structure of the financial industry and its key players

    o Lending processes and lending products

    o Relevant industry legislation and ethical standards in financial services

    o How to use financial products and tailor them to meet your client’s needs

    o How to communicate with clients and provide professional levels of service

    This course aligns with my career goals and meets my expectations as it consists of a very good combination of core and elective units. I would like to apply critical thinking and judgment in developing new understanding to deliver professional discipline advice, knowledge and ideas orally in future for my business context.

    Following major subjects are the part of these courses:

    • Manage people performance

    • Provide leadership across the organization.

    • Manage innovation and continuous improvement

    • Build and maintain relationships with small business stakeholders

    • Apply principles of professional practice to work in the financial services industry

    • Lead and manage organizational change

    • Provide leadership across the organization.

    • Develop, implement, and maintain WHS management systems

    • Manage innovation and continuous improvement

    Here I state that I have not altered any of the documents nor have submitted any bogus document and I consider myself a Victim in this situation that occurred. I request you to consider my request to Not Cancel my visa so I can return to my home country with an international education which can eventually help me further to build my career in a better way with wide opportunities.

    In Conclusion I would like to request you to please give me at least one chance to prove myself as everyone deserves a second chance and that is all I am asking. In advance, I would like to express my gratitude for your time and consideration with a hope that the decision would be taken in account of wisdom.

12. As indicated, the applicant has provided a transcript authenticated by the Unique Student Identifier (a body of the Australian Government) which indicates that the applicant completed his Diploma of Business on 19 June 2020 at the Victorian College of Vocational Excellence.

1. It is clear from information provided by the Australian Border Force on the Departmental file that Victorian College of Vocational Education is a trading name of Training Organisation Victoria Pty Ltd.

2. Thus, there is conflicting information from government authorities as to whether the applicant obtained the Diploma of Business on 19 June 2020. This goes to the issue of whether the applicant provided incorrect information and whether the Certificate of Completion of the course is a bogus document.

3. The Tribunal wrote to the Student Identifiers Registrar pointing out the adverse information contained in the s 107 notice that was undermining of claims that the applicant could have completed the Diploma of Business from the institution. In a response dated 17 June 2022 it indicated that an authenticated VET transcript was downloaded through the student portal which had an expiry date of 25 April 2022 and was assigned a document number.

4. The Tribunal wrote again to the Student Identifiers Registrar seeking further information in relation to whether the transcript is authentic asking for details as to how authenticity is determined. In response the following was indicated:

   The Office of the Student Identifiers Registrar (OSIR) is responsible for administration of the USI scheme in accordance with the Student Identifier Act, 2014. The National Centre for Vocational and Education Research (NCVER) is the custodian of the VET data standard (AVETMISS) and is responsible for the collection of data provided by Registered Training Organisations (RTOs) for the National VET administrative collections, and for supporting RTOs to meet their AVETMISS reporting obligations.

   NCVER provides the AVETMISS data for the USI transcripts which is generated by linking the USI to the VET training activity held in the national VET database.

   As the training data is reported directly to NCVER by an RTO, the OSIR cannot comment on the modules that appear on a VET transcript, we can only verify that the training information we have provided to you previously was obtained directly from NCVER in the form of a VET transcript.

   If you agree, we would be happy to pass your request on to NCVER (along with our responses to you) so that they can provide you with further information relating to your enquiry. Please confirm if this is something that you would like us to do.

5. The Tribunal requested that an approach be made to NCVER. On 1 August 2022 the office of the Student Identifiers Registrar advised that NCVER advised that they are unable to assist with the enquiry.

6. Thus, the Tribunal is left with the authenticated transcript which supports statements made in the applicant’s student visa application as to his completing as claimed the Diploma of Business. The authenticated transcript is undermining of claims that the Certificate of Completion is bogus.

7. Despite enquiries by the Tribunal, neither the Student Identifiers Registrar nor NCVER have provided any information to the Tribunal that would suggest that processes may be flawed resulting in an incorrect authentication of the transcript and evidence of the course passed.

8. On the other hand, there is probative information from government authorities set out in the s 107 notice that indicates that the Diploma of Business could not have been successfully completed leading to the suspicion that the Certificate of Completion is bogus.

9. In light of conflicting probative information by different government authorities in this matter, the Tribunal considers that it needs to favour government information which supports the applicant’s claims.

10. In light of Unique Student Identifier authentication as to the completion of the Diploma of Business and the passing of relevant units, despite remaining suspicions on the Tribunal’s behalf it cannot be satisfied that the applicant has provided the incorrect information as alleged in the s 107 notice.

11. Similarly, although the Tribunal has a suspicion that the Certificate of Completion is bogus, the Tribunal does not consider that it can determine that the suspicion is reasonable in light of the information authenticated by the Unique Student Identifier that the applicant completed his Diploma of Business and passed relevant units as set out in the authenticated transcript.

12. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

13. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    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.

    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.