Mughal (Migration)

[2019] AATA 6590

Mughal (Migration) [2019] AATA 6590 (14 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Irfan Sharif Mughal

CASE NUMBER:  1823827

DIBP REFERENCE(S):  BCC2017/3737660

MEMBER:Karen Synon

DATE:14 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 14 May 2019 at 1:59pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) – Subclass 187 - Regional Sponsored Migration Scheme – bogus document/incorrect information – Intermediate Examination Results Card – incorrect answer in student application form – breakdown in relationship with father – allegations lodged by father – successful study record in Australia – verification of English and employment records – prevalence of corruption and ability to bribe and influence outcomes in Pakistan – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 109(1)

Migration Regulations 1994 (Cth)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was granted a RSMS Direct Entry visa on 17 May 2016.

3. The delegate cancelled the visa on the basis that the applicant had provided a bogus document being an Intermediate Examination Results Card dated 15 August 2007 and had also provided an incorrect answer in his student application form.  The issue in the present case is whether either of the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 7 May 2019 to give evidence and present arguments.  The Tribunal also received oral evidence from the applicant’s younger brother.  The Tribunal was assisted by an interpreter is the Urdu and English languages when taking evidence from the witness.

5. The applicant was represented in relation to the review by his registered migration agent who was present throughout the 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, 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 section 101 – visa applications to be correct - in the following respects:

    Section 101 – Visa applications to be correct

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

    …(b) no incorrect answers are given.

11. The further non-compliance identified and particularised in the s.107 notice was non-compliance with section 103 – visa applications to be correct - in the following respects:

    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.

    * 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).

12. The section 107 notice is dated 23 July 2018 and relevantly set out:

    Information held by the Department

    On 9 August 2010 you submitted an application for a Student (subclass 572) visa.

    On the 157A form - Application for a Student Visa, you provided the following information:

    ·    At question 31 in response to the question “Provide details of your highest qualification obtained outside Australia, as well as all other studies and training obtained outside Australia”, you provided the following information:

    Highest qualification  Intermediate
    Name of education provider or training body         Board of Intermediate & Secondary Education
    Address of education provider or training body      Islamabad - Pakistan
    Commencement date  11-Apr-2015
    Finish date  07-Jul-2007

    ·   At question 76 you signed a declaration, dated 30 July 2010 declaring:

    “I certify the information supplied on or with this form is correct“

    And

    “I am aware that I must immediately advise the department if I become aware that any information provided in this form is incorrect or if there is a change my circumstances are relevant to this application at any time “

    In support of your Student (subclass 572) visa application you also provided an Intermediate Examination Results Card, dated 15 August 2017 that was issued from the Board of Intermediate and Secondary Education, Rawalpindi.  This document stated that you had taken your intermediate examinations during April – July 2007 and that you attended Government Gordon College, Rawalpindi.  It also listed the registration number as 06054829546.

    On the basis of this information, meeting all other relevant criteria, you were granted a Student (subclass 572) visa on 6 May 2011.

    The Department undertook Integrity checks regarding your Intermediate Examination Results Card, dated 15 August 2017 which you provided in support of your Student (subclass 572) visa application.

    A verification of your details on Government Gordon College, Rawalpindi’s database found no record of you attending the college.

    On the basis of the information provided by the integrity check, it appears that you have provided the department with incorrect information regarding your educational qualification and have provided a bogus document to facilitate the grant of your Student (subclass 572) visa.

    It appears that you did not attend Government Gordon College, Rawalpindi as the college has no record of you attending as a student there and as such the Intermediate Examination Results Card you have provided is a bogus document as it purports to have been, but was not, issued in respect of you….

    I consider that the information you provided regarding your educational qualifications as well as the award certificate you provided in support of your visa application was material to the grant of your Student (subclass 572) visa.  If the department had been aware that you had not completed this qualification, or that you had provided a bogus document, your Student (subclass 572) visa would not have been granted.

    If you failed to comply the requirements of sections 103 and/or 101(b) of the Migration Act, as detailed above, your RSMS (subclass 187) visa may be cancelled under section 109 of the Migration Act.

13. The applicant was invited to respond and address any matters he thought relevant within 14 calendar days of the Section 107 Notice.  The following statement was received in response:

    …I would like to explain my circumstances to consider not to cancel my permanent visa.

    I have contacted my college after getting this NOICC to get my record.  I told the principal of the college that the DHA has found no records against my studies.  I been told by the college that it’s an old and manual record as we don’t have online system yet, we have to go through in details.  Firstly I have to bring my college certificate along with my identity than (sic) they also notified me that your record could have been affected by the flood in Rawalpindi in July 2010.  So, I have no choice other than to present myself in person to get the records from the college.

    I have been living in Australia for seven years.  I have studied in my first five years in Australia and started working full time in last two years as a motor mechanic to explore and start a new and successful like in Australia till now.  I am a law abiding person and while going through my permanent residency in Australia and as a motor mechanic profession (sic) I gain my permanent residency in Australia.  I planned my life accordingly after getting my permanent residency.  After getting married, I am going through a lot of stress.

    I already have a lot of family problems and after getting the NOICC, I am in a situation of no where (sic) of my life.  This decision of NOICC can destroy my life as well as my upcoming new born and my partner as she is 5 months pregnancy.  I request you to consider my circumstances which I have been going  through an don’t cancel my visa as I have no options left to go back to my country and face the consequences and life threats for [deleted].

14. The delegate considered the response provided and decided to cancel the applicant's Subclass 187 visa on the basis that he had provided incorrect information in his visa application and a bogus document.  In doing so the delegate noted that according to department records, the applicant’s wife was then currently residing in Rawat, Pakistan and could therefore have provided assistance to the visa holder in attempting to obtain his school records.

15. On 18 March 2019 the Tribunal received a legal submission which relevantly contended:

    [The applicant] was initially granted a student visa on 06 May 2011 and as a result of his studies, he completed and obtained the following courses:

    ·Certificate III in Automotive Mechanical Technology

    ·Certificate IV in Automotive Technology

    ·Diploma of Automotive Technology

    ·Certificate IV in Business

    ·Diploma of Management

    On 17 May 2016, his Class RN - Subclass 187 was granted through the employer nomination and sponsorship of Auspak Enterprises Pty Ltd, trading as Fortune Auto Repairs.  He worked as a motor mechanic in 2016 with Auspak Enterprises Pty Ltd and ceased employment when his visa was cancelled.

    He lives in Australia for almost eight years since 2011. The Class RN - Subclass 187 visa was cancelled on 18 August 2018, under Section 109 of the Migration Act 1958.

    [The applicant denies the non-compliance as set out in the s.107 notice…the correct information is that [the applicant’s] highest qualification is intermediate and that he studied at Government Gordon College in Islamabad - Pakistan….[The applicant]  attempted to obtain evidence of his qualification from the Government Gordon College, Rawalpindi but for unknown reasons, the school is unable to locate his records…In his letter reply dated 06 August 2018 to the Department of Home Affairs, he stated that he contacted the college after receiving NOICC and provided the following information.

    •     Records are manual and have not been uploaded.

    •     School staff advised him to provide his college certificate and identity in person in order to locate his results card

    •     School records may have been affected by the July 2010 flood in Rawalpindi.

    •     He does not know why his college cannot find his records.

    •     His parents in Pakistan are not providing him with assistance as they have disinherited him.

    [The applicant] strongly believes that it was his father's influence and product of bitterness that resulted to the removal/deletion of his school records from the Government Gordon College.  He claimed that he was subject to adverse deceptive and cruel actions on the part of his father who opposed him bringing his wife in Australia…all copies of his school records are in the possession of his father.  [The applicant] completed his intermediate qualification in Pakistan when he was only 17 years old.  Given that he is not yet of legal age, the exercise of parental responsibility still lies with his parents; [[his father]  It is also our submission that Pakistani culture is moulded by Islamic culture and religious writings emphasise the responsibilities of parents.

    …It is submitted that [the applicant] complied with the Act, the class TU visa had been granted. This is a strong factor in favour of the visa not being cancelled….Subclauses 572.21 and 572.22 do not specify the requirements of high school qualifications to satisfy the visa criteria.  At time of the visa application, [the applicant] could have studied under Subclass 571 - Schools Sector as his main intention is to apply and be granted a student visa if he did not complete his intermediate studies. The Class TU visa application was made on 30 July 2010, and the educational qualification was relied upon… [The applicant] has considered that his father could have bribed the school to completely remove his school records with whom he has a complex relationship.  He mentioned that his father has a strong connection with the authorities being described as very influential in the society. [The applicant] has maintained his claim that he did not provide incorrect information and a bogus document regarding overseas qualification to facilitate the grant of his Subclass 572 student visa…It was his father's deceptive actions to punish his children's migration in Australia and in England.  His father sent a dobbed-in (sic) letter to the Australian Embassy - Islamabad and stated that

    In  fact, both the sons of the undersigned went to Australia on the basis of fake and forged documents which were they prepared in connivance with some concerned officials before 7/8 years in order to get Australian visas...

    [The applicant] mentioned that it is a culture in Pakistan for parents to dominate and dictate their terms to their married children.  He narrated that his father is domineering and authoritarian.  As he disobeyed his father's decision to divorce his wife and not to bring her to Australia, he then make (sic) a move to dobbed (sic) him in to the Australian Embassy in Islamabad.  [The applicant] has lived in Australia for almost 8 years. He is currently unemployed since the cancelation of his Class RN - Subclass 187. He started looking for work as he was just granted work rights…it is extremely hard for him to return to Pakistan as he has a complex relationship with his father who disinherited him and his other siblings.  [The applicant] has a significant loan to repay…he also purchased a vacant land….He is worried that if he will be forced to return to Pakistan he will not be able to support his wife and child.  He has gone through financial difficulty and has suffered some degree of hardship. [The applicant] has two brothers in Australia…

    [The applicant’s] wife partner visa application has been lodged on 08 January 2017 and had been withdrawn after his visa was cancelled.  They have a 3 month old child.  They are currently in Pakistan.  His wife visited him twice in Australia on a tourist visa….the cancellation of the permanent residence visa…created significant hardship not only financially but emotionally.  [The applicant’s] wife's partner visa application had been withdrawn from the Department of Home Affairs because of the visa cancellation….If he is required to return to Pakistan, his life would be in danger [deleted].  There is nothing for him in Pakistan to start a new life as he was already disinherited by his father. He would not have the support of his family [and] was disowned by his father as evidenced by the disinheritance document executed in Pakistan.  He had become alienated from his father because of the latter's harsh behaviour.  He is afraid of the risk that if (sic) return to Pakistan his father will harm him to death.  While his wife and child are still in Pakistan but they are also under the threat of his father.  He expressed concern for his safety.…

    [The applicant] has cooperated with the Department of Home Affairs and the Minister..[His] breach of condition 8202 was caused by the education provider.  He was provided with a wrong course which resulted in him having multiple confirmation of enrolment.  The application for Class TU was initially granted on 06 May 2011…He was also granted with Class RN - Subclass 187 Direct Entry.  Eight years has passed since [his] student visa has been granted. [He] claims to have no criminal record, and there is no evidence that he has been charged with, or convicted of, any offences. [He] has been a good citizen in the community of Greenvale, Victoria.  He had been waiting for his wife and child's approval of the partner visa application which was lodged on 08 January 2017 so they can live together peacefully in Australia.  However, the partner visa application has been withdrawn after his permanent visa was cancelled. This ordeal caused [the applicant]…pain and intense fear about his family's future. He is an experienced tradesman possessing skills of a motor mechanic.  He commenced this occupation after acquiring necessary skills and qualifications in Australia…However his life is now devastated due to the ordeal his father caused him.  He has been going through tremendous mental stress and is attending a counselling session with his psychologist to help him through with this terrible ordeal in his life…his purpose in coming to and staying in Australia was to study business and automotive technology.  This would ultimately enable him to realise his dream of working in a job that is his passion….he was granted a Regional Sponsored Migration Scheme (RSMS) Subclass 187 - Direct Entry on the basis of his Australian qualification as a motor mechanic.

16. The following submissions and statements were provided to the Tribunal:

    From the applicant:

    …I contacted my College after getting NOICC from Department of Home Affairs to get the records and i been told that they can’t find the records over the phone as its 14 years old record and we don't have online records and our some records misplaced due to flood. So I have to bring all my supporting documents along my ID.  So, I explained the same thing to the Department of Home Affairs in my submission and i got my visa cancelled that response.  After my visa got cancelled i became depressed and as the time passes and came into my knowledge with the help of my younger brother as well as he found a complained letter from my fathers belonging stating that I went to Australia on a bogus document which clearly demonstrate that my father trapped me to go through hardships just because of his ego and a family disputes between me and my father.  My father has a politician friends as well as he is wealthy person who holds a harsh reputation in the society.  He is holding all my school supporting documents.  As our corrupt system in Pakistan my father has bribed the school officials to wipe off my records of which my younger brother…is a witness.  My father has openly threatened and challenged me that he will destroy me and my family in Pakistan and he is currently torturing my wife back in Pakistan.  My father doesn’t like me [deleted].  Furthermore, family issues got worse after my marriage.

    From the applicant’s brother

    My father…has a very bad reputation in the society and relatives because of his company with gangsters and political parties and he has a lot of enemies due to property disputes and domestic violence.

    I am very ashamed of my father and i am eye witness of that he bribed the officials to trap my brother…because of his wife issues with my family because my brother…has different thoughts from my father which my father couldn't digest.  He always been head of the family and has very harsh decisions on my mother and my brothers and their families.  His thought is live my way or use high way and due to my brother…who has been living in Australia from 8 years has different mindset and life style according to Australia culture which he adopted in Australia because he came here in a young age and he don't want to be bounded by my fathers slave mind set.

    He always treat my brother’s wife Hira…like a slave and try to poison her twice which she luckily survived as well as he tried to brain wash my brother to divorced her which my brother go against this stupid requirement from my father.  So, my father and my sisters directly and openly threatened my sister in law and my brother that they make sure they will bring my brother…onto the streets as a begger.

    So they started with disinheriting him and then planned with the help of corrupt lawyers and officials how to trap my brother to destroy his life and bring him back to Pakistan so he can't do anything in Pakistan as he has nothing in Pakistan beside this fraudulent father and life threats.  At the moment my sister in law is hiding herself from my father on shelter homes and some time at her relatives due to life threats and kidnapping threats of her new born.

    My father bribed the school officials to wipe the records as well as from board of intermediate and made a false complaint to the high commission of Australia in Islamabad Pakistan that my (sic) son went to Australia on a fraudulent documents and requested the high commission to take possible action and send  him back to Pakistan i.  So he can destroy his family and him with no option left.

    Furthermore, my [older] brother Muhammad…recently went to Pakistan to settle the family issues and was assaulted and brutally attacked by my father gang to make sure that he also couldn't travel back to Australia to rejoin his family.  He was in hospital for 2 days however he smartly managed to escape by agreeing to their conditions and flew back to Australia.  Him and his family also have life threats from my father and his enemies of property disputes who thoroughly try and waiting to target my brothers whenever they come back to Pakistan.

    From the applicant’s father-in-law:

    I request you to consider my application…[my daughter] who married [the applicant] who is currently residing in Melbourne Australia.  His father is Muhammad…has some family and domestic issues with his sons namely [the applicant and his 2 brothers].

    My daughter Hira…is married to [the applicant] approached me on 3/12/2018 due to domestic conflicts and threatening warnings, verbal assaults, mental and physical torture from [the applicant’s father] and her sisters in law.  [The applicant’s father] has often abused my family and also give (sic) me and my family life threats by approaching me with gangs holding guns in their hands.  The whole situation was witnessed… I have been mentally tortured and been warned since my daughter got married to [the applicant].  Now I can’t tolerate any more mental torture and life threats to me and my family.  So, if anything happens to me or my family, the responsible person will be [the applicant’s father].  I request SHO please provide a protection and take legal action against [the applicant’s father].

1. Throughout the course of the review the applicant also provided:

   ·A copy of a letter dated 25 June 2015 titled Letter of Engagement issued to the applicant by Fortune Auto Repairs.

   ·A Police Character Certificate issued in respect of the applicant dated 21 December 2107.

   ·Copies of academic transcripts related to a: Certificate IV in Business; Certificate III in Automotive Mechanical Technology; Certificate IV in Automotive Technology; and Diploma of Automotive Technology.

   ·A letter dated 7 March 2019 from Aslilan Tokgoz, Clinical Psychologist who states the applicant consulted him on 4 occasions after being referred from his doctor for treatment of anxiety.  Mr Tokgoz writes of the applicant’s circumstances as reported to him by the applicant.

   ·A translation of a document titled “Disinherited”, purportedly signed by the applicant’s father and mother, which states “we disinherited our three sons namely….from moveable and immovable properties.  We heave neither any concern whatsoever with the said persons nor will take any responsibility in future.

   ·Particulars of Sale documents in relation to a property at Lot 1503, Thornhill Park, 3335 which appears to have been purchased by Jayeshkumar Rameshbhai and Paragbhai Harshadbhai Patel on 19 February 2018.  The applicant is named as the nominee.

   ·Copies of the applicant’s Taxation Notice of Assessment for the years ending 30 June 2017 and 30 June 2018.

   ·Copies of withholding tax from AUSPAK ENTERPRISES PTY LTD in respect of the applicant for the years ending 30 June 2017 and 30 June 2018.

   ·A copy of a car loan finance agreement which lists the applicant as the borrower.

   ·An untranslated Marriage Registration Certificate recording the marriage of the applicant and his wife on 17 August 2016.

   ·An acknowledgement from the Department of the lodgement of a Partner (Provisional) (class US) (subclass 309) /Partner (Migrant) (class BC) (subclass 100) visa for the applicant’s wife lodged on 8 January 2017.

   ·A letter of support from a former colleague, Rao Waseem Akbar.

   ·A letter of support from a friend and neighbour, Mubeen Shafquat, who attests to the applicant’s honesty, loyalty and good moral character.  Mr Shafquat states that his wife knows the applicant’s wife.

   ·An untranslated Birth Registration Certificate which lists the applicant as the father of a female child born on 30 November 2018 in the district of Rawalpindi.

   ·A copy of the applicant’s Pakistani passport valid until 8 November 2025.

   ·A copy of the applicant’s birth certificate recording he was born on 27 July 1990 in Rawalpindi.

   ·A copy of the applicant’s notification of grant of his 187 visa on 17 May 2016.

   ·A video of a man (unidentified) who appears to have suffered an injury to his right eye.  It appears the video was taken while this man was in an ambulance.  Two other men are present (one is recording) although any injuries to men are difficult to ascertain from the video.

2. In reaching a decision as to whether there was non-compliance in the way described in the 107 notice, the primary issue before the Tribunal is whether the applicant provided a bogus document in the form of his Intermediate Certificate from Government Gordon College.  If this document is bogus, it follows that the applicant did not provide a correct visa application when he stated that he had completed an Intermediate qualification.  The Tribunal records that the applicant applied for the student visa in 2010 and that the authenticity of his academic qualifications has not been in dispute for a period of over seven years until the applicant’s father made an accusation to the Department that the applicant and his brother’s academic transcripts, English and employment were fraudulent.  This is not withstanding that it was the applicant’s father who provided financial support for the applicant throughout his study in Australia as clearly documented on the department file via the provision of the applicant’s father’s bank details.

3. The report to the Department is summarised in a ‘Job Details Report’ which is not subject to a certificate and has significant aspects redacted.  However the applicant has provided to the Tribunal a copy of the letter his father sent to the Australian Embassy in Istanbul.  This letter states the addresses of his two sons living in Australia and relevantly states:

   In fact, both sons of undersigned went to Australia on the basis of fake and forged documents which were (sic) they prepared in connivance with some concerned officials before 7/8 years in order to get Australian visas and show showed Auto workshop for only visa purpose which is totally fake.  This fact came into knowledge of undersigned a few days back.  The undersigned, as a law-abiding and respectable citizenship citizen of Pakistan wants to bring to your kind notice regarding the forgery of his aforementioned sons to refrain from any further complication.

4. This letter was acquired by the applicant from his younger brother, then still living in Pakistan, who looked through his father’s briefcase and sent copies of documents to the applicant and his brother via ‘What’s App’.

5. As a result of this letter it appears that the department instigated an investigation into the applicant (although it is not evident whether it has likewise instigated an investigation into the applicant’s brother also living in Australia as a permanent resident and about whom the same allegations were made).  In particular it undertook investigations about his claimed regional employment, his English-language results and his Pakistani academic transcripts.  The department file reveals that in fact the applicant’s PTE English scores are as claimed and that after requesting information about the applicant’s two years employment in a regional area the department appears satisfied on these matters (although the applicant concedes that for some of this period he lived in an outer Melbourne suburb on the weekend and commuted to his regional employment during the week).  The department initiated a check of the applicant’s Intermediate qualification with advice received on 19 July 2018 that “the record of the college has been checked and found that the above named person has never been a student of this college”.

6. The applicant advanced three explanations for why the college may have no record of him having studied there namely that: the records were 14 years old and manual and may have been lost through time; there was a flood and number of records may have been destroyed; and his father who is a powerful businessman, was able to exert some leverage to have the applicant’s name removed from the college’s records.

7. In relation to the view expressed in the cancellation decision that the applicant’s wife, then living in Pakistan, could have provided assistance to the applicant in obtaining his school records, the applicant told the Tribunal she had attempted to do but was informed that she needed to provide all of his documents which were and are currently held by his father.

8. The applicant consistently and emphatically stated that he completed two years study leading to an Intermediate certificate in Computer Science at the Government Gordon Institute.  The applicant said he commenced school at age 4 or 5 at the village primary school which he completed in year five and then attended the Leaps International Montessori School where he completed his middle school education finishing in 2003.  In years 9 and 10 he studied matriculation with a private coach and sat the Board examinations at the end of each year.  After this he attended the Government Gordon Institute where he gained his Intermediate Certificate in Computer Science studying: Computer Science, Statistics, Urdu, English, Pakistan studies and Islamic studies.  This was the two-year course and his strongest subject was, he believes, Mathematics.  He said he scored 800 or so marks out of 1100.  Following his Intermediate Certificate he did 2 six-month courses at a local centre called the Computer College being a Diploma in computer software and hardware.  He was then employed for 18 months at Auto Vision.

9. The applicant attributes his father’s changed attitude to him and his brother to a dispute regarding his wife and in particular that serious family problems emerged after the applicant married and wanted to bring his wife to Australia to live with him.  His father was implacably opposed to this and demanded that his wife stay in Pakistan to care for him and his wife including cleaning and cooking for them.  The applicant’s father told the applicant that under his religion he could marry two girls and so could marry one in Australia and not tell the Australian government about his wife in Pakistan.  In this way his Pakistani wife would be able to stay and care for his father and mother.  However his wife did not want to do this and nor did the applicant saying it was not fair.  For this reason he did not tell his father he had applied for a partner visa for his wife.  Throughout the period of their marriage his wife has been mentally depressed because his father has been torturing her and threatening her and her parents and told her she should not be talking to the applicant as often and that once week was sufficient.  He demanded that she work for them cooking and cleaning.  It was around June 2017 that the applicant’s relationship with his father dramatically deteriorated and at this point his wife went from his father’s house to her parents’ house.  The applicant’s sisters sided with their father and tried to stop his wife leaving.  The applicant said his sister took a gun to his wife’s parent’s house and threatened her.  His sister phoned the applicant and told him that his father would make sure that his sons came home and would do something to make sure the applicant’s wife goes back to their home.  It was at this stage that the applicant and two of his brothers (the brother living in the United Kingdom and Australia) were disinherited.  The applicant’s younger brother (who at the time was living with his parents and was not disinherited) was able to send copies of correspondence his father sent to the Department and also the disinherited certificate via What’s App.  It was then that the applicant realised the seriousness of the situation.  His wife now lives in different cities sometimes with an uncle or an aunty but not with her parents due to the threats the applicant’s father and sister made against her and because her family lives in the same city as his parents.  As the applicant was only granted work rights again last month his wife is financially supported by her relatives and her father.

10. The applicant’s younger brother, who arrived in Australia on a visitor’s visa, has [deleted] his father’s threats and his business connections and/ or capacity to buy silence from corrupt associates.  In giving witness evidence he supported the applicant’s assertions about his father’s behaviour towards the applicant and his wife.  He gave evidence that he was a witness to the whole process whereby his father met with lawyers and principals to discuss how they could bring the applicant back to Australia.  He said these people are corrupt and the issue arose because they wanted the applicant’s wife to stay because his father had an old-fashioned mindset of the son’s wife looking after the son’s parents.  The applicant’s younger brother said his father would be defaced (which the Tribunal interpreted as losing face or being humiliated) if the applicant’s wife leaves.  He said there were 1 or 2 occasions when his father tried to poison and torture the applicant’s wife and she was threatened with a gun.  His father beat him with a rod when he found out he had told the applicant about what was happening.  The witness said the applicant’s wife expressed many times that she wanted to join her husband in Australia and everything that had happened to his brother had been orchestrated by their father who threatened his life and that he would “bring him down to his real level - like that of a beggar”.

11. By way of background the applicant is one of seven children, five of which are full siblings.  His father is a businessman with agricultural and urban property and his mother is a housewife.  His eldest half-brother, aged 37 went to England in 1997 or 1998 and is now a resident there.  His two sisters are both married and living in Pakistan while his oldest full brother is aged 30 and lives in Melbourne.  He also came here on a student visa and works full-time.  He married a Pakistani woman and has three children.  This brother also studied at the Government Gordon Institute.  The applicant’s marriage was arranged by his parents and his wife’s parents and he first met his wife about six days before their engagement.  They were engaged for a year and married approximately 2 ½ years ago.  All his and his wife’s family attended the wedding except his eldest half-brother living in the United Kingdom.

12. In arriving at its decision the Tribunal has it, on the one hand, definitive advice from Government Gordon College in Pakistan that the applicant “had never been a student of this college”.  However the applicant has claimed that this father has, in some way, manipulated or influenced the College via his political or business connections to alter its records which may also have been manual and therefore inaccurate or lost and/or affected by flood waters in July 2010.

13. On the other hand, and in the applicant’s favour, the Tribunal notes that the 2 allegations made against him by his father for which Australian records could be validated appear to have been vexatious.  Also weighting in favour of the applicant is the fact that that after arriving in Australia he successfully completed 4 courses being a Diploma of Management; a Certificate III, Certificate IV and Diploma in Automotive Technology and a Certificate IV in Business.  There is no suggestion that the applicant failed any of his subjects or courses or had any significant study caps.

14. The Tribunal also notes that whether or not the applicant completed an intermediate certificate in Pakistan would not necessary have been determinative in the grant of his student visa in 2010 and therefore if he had not completed this qualification it would not have precluded him from entering Australia as a temporary visa holder.

15. Therefore on balance, and despite giving significant weight to the advice received from the Government Gordon College, the serious allegations made by both the applicant and his brother about their father’s capacity to influence, manipulate and bribe local officials (which accords with country information about Pakistan that corruption is widespread and systemic),[1] raise significant doubts in the Tribunal’s mind about whether it can be sufficiently satisfied that the Intermediate Certificate provided by the applicant is a bogus document as defined in subsection 5(1) of the Migration Act. The fact that the informer to the department alleging bogus documents were provided in support of the applicant’s student visa application was the applicant’s father, the person who had previously financially supported the applicant throughout his studies in Australia, supports the evidence to the Tribunal that there was a major family breakdown in relations over the issue of whether the applicant’s wife would join the applicant in Australia or stay in Pakistan to look after his parents.

    [1] Department of Foreign Affairs and Trade – DFAT Country Information Report – Pakistan – 20 February 2019 - < accessed 10 May 2019.

16. Given the place of women in Pakistani society, the Tribunal accepts as reasonable, the claim that the applicant’s father wanted his wife to stay in Pakistan to care for him and his wife (in the absent of any of his daughters or daughters-in law-living with them) and the applicant’s lodgement of a partner visa for her, as the factor which precipitated the applicant’s father’s determination to find a way to bring the applicant back to Pakistan.

17. When weighting the circumstances in the applicant’s favour, including his successful study record in Australia and the verification of both his English and employment records, with the applicant’s father’s letter to the department and prevalence of corruption and the ability to bribe and influence outcomes in Pakistan, the Tribunal is not satisfied that the applicant did provide a bogus document in the form of his Intermediate Certificate to the department.  For this reason the Tribunal Is not satisfied that there has been a breach of condition 103 of the Act in the form of the intermediate Certificate.

18. It follows therefore that the applicant’s student visa application lodged on 30 July 2010 was correct and that there was also no breach of section 101.

19. 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

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

    Karen Synon
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    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.