Risteski (Migration)

Risteski (Migration) [2018] AATA 4112 (27 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Blazhe Risteski
CASE NUMBER:  1811935
DIBP REFERENCE(S):  BCC2017/2134858
MEMBER:R. Skaros
DATE:27 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 27 August 2018 at 3:17pm

CATCHWORDS
Migration – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – employment reference and qualifications not genuine – incorrect information about employment and qualifications – qualifications not claimed in previous visa applications – employment reference from another business – employer’s difficulty recruiting suitably qualified bricklayers – decision under review affirmed
LEGISLATION
Migration Act 1958, ss5, 97-105, 107-109, 111
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant applied for the Subclass 457 visa on 18 April 2017 on the basis of a nomination by B&B Pty Ltd in the occupation of Bricklayer (331111). When applying for the visa, the applicant indicated, in the visa application form, that he worked for Beton AD Skopje Macedonia (Beton AD) between 3 November 2004 and 12 January 2007 as a bricklayer. The applicant provided an employment reference dated 19 October 2016 in relation to his claimed employment at Beton AD and a Diploma certificate dated 20 June 2005 indicating that the applicant, in the school year 2004/2005, attended and completed the course in Construction Workers’ Training – Knowledge and Skills in Masonry Specialties at the Workers’ University “Koco Racin” Skopje.
Information on the Department’s file indicates that the Department had concerns about applications lodged with the assistance of a particular agent, of which this application was one, and this led the Department to undertake background checks to verify the information and documents provided by the applicant regarding his qualifications and work experience in Macedonia.
The Department received information which suggested that the applicant did not work for Beton AD as claimed and that the employment reference from Beton AD and Diploma certificate are not genuine documents.
On 8 March 2018, the Department issued a Notice of Intention to Consider Cancellation (the notice) under s.109 of the Act in which the delegate set out the particulars of the possible non-compliance with s.101(b) and s.103 of the Act.
On 20 March 2018, the applicant responded to the notice and provided a letter of support from his nominating employer, Mr Goce Pavlevski of B&B Pty Ltd.
After considering the applicant’s response, the delegate found that the applicant did not comply with s.101(b) and s.103 of the Act and decided to cancel the visa.
The applicant provided a copy of the delegate’s decision record with his application for review. Prior to the hearing, the Tribunal received submissions from the representative and supporting documents, including a letter of support from Mr Pavlevski, a statement from the applicant, an employment reference from Ms Milka Ingilizova regarding the applicant’s claimed employment in Macedonia, a letter of support from Mr Borce Nikolovski, a reference from the Australian Macedonian Humanitarian Association and information from the internet about corruption in Macedonia.
Immediately prior to the hearing, the Tribunal also received a reference from Mr Aboud of Multi Res Constructions Pty Ltd. The applicant appeared before the Tribunal on 7 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mr Goce Pavlevski, by telephone. An interpreter in the Macedonian and English languages was arranged for the duration of the hearing however the applicant preferred to give his evidence in English. The applicant demonstrated a good command of the English language and had no difficulty understanding and responding to the Tribunal’s queries.
The Tribunal also made a number of attempts to call Ms Milka Ingilizova, who provided a reference claiming that the applicant worked for her company as a bricklayer in Macedonia. However, the number indicated on the reference was diverted to a messaging service. The applicant explained that it was very early in Macedonia, about 5.00am, and that Ms Ingilizova may not yet be in the office. The applicant informed the Tribunal that Ms Ingilizova was not aware of the hearing time and he had not requested her to give oral evidence.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.
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.
The Tribunal has had regard to the copy of the notice dated 8 March 2018 that is on the Department’s file. The notice informed the applicant that his visa may be cancelled under s.109 on the basis that he appears to have not complied with s.101(b) and s.103 of the Act. The notice set out the particulars of the possible non-compliance and advised the applicant to respond in writing within a specified period. The notice also set out the effect of various sections of the Act, the applicant’s continued obligations under the Act and requested the applicant to keep the Minister informed of his address.
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.101(b) (visa applications to be correct) and s.103 (bogus documents not to be given) as follows:
With the assistance of an agent you submitted an application for a Temporary Work (Skilled) (Subclass 457) visa.
The following information was provided in the electronic application form:
Give past employment details:
Employer: Beton AD, Skopje, Macedonia
Position: Bricklayer
Date from: 3 November 2004
Date to: 12 January 2007
Duties of the position: carefully study plans and specifications to determine materials required, dimensions and installation procedure. Laying bricks in rows, designs and shapes, and spreading water between joints. Making sure precisely check vertical and horizontal assignment and finally insuring to repair and maintain bricks, cement blocks and related structures.
In response to “the information you provided in this form is complete, correct and up-to-date” you answered yes.
In support of your application, you submitted a document named “Employment reference letter” – Beton AD Skopje.
In support of your application, you submitted a document named, “Diploma – Bricklayer – Masonry Specialist”
On 16 May 2017 your Temporary Skilled Subclass 457 visa was granted on the basis of this information and meeting all the other relevant criteria.
Since the grant of your temporary work (skilled) (Subclass 457) Visa, the following information has come to the attention of the Department:
Integrity checks were conducted by an officer working in the Department’s overseas post in Serbia. An email copy of the document named “Employment reference letter – BETON AD Skopje” was sighted by a representative from Beton AD Skopje, and verified that they never provided the letter. They also confirmed that the letterhead appearing on the letter does not belong to their company.
Integrity checks were conducted by an officer working in the Department’s overseas post in Serbia. An email copy of the document named “Diploma – Bricklayer – Masonry Specialist” was sighted by an administrator at the FYR Macedonia and Workers University “Koco Racin” Skopje. It was confirmed that there is no record of the diploma in their database and the registration number listed on the diploma was not a valid registration in the school year of 2004 or 2005. Furthermore, the University confirmed that their Diplomas were handwritten in 2005.
After considering the information received during the integrity checks, the delegate considered that the applicant had not complied with s.101(b) by providing incorrect information about his employment with Beton AD Skopje in Macedonia. The delegate also considered that the applicant had not complied with s.103 of the Act because the delegate found that the employment reference letter and Diploma certificate provided by the applicant in support of his Subclass 457 visa were bogus documents within s.5(1)(b) of the Act.
In determining whether there was non-compliance as described in the notice, the Tribunal has had regard to the relevant evidence before it as follows.
In his written response to the notice, the applicant stated that he was shocked when he received the notice. He stated that at the time he was granted the 457 visa, on 16 May 2017, he had been working part time as a bricklayer for his sponsor, B&B Pty Ltd, for about one year. He stated that the information he provided with his application is correct and that the documents were issued to him.
In relation to the employment reference from Beton AD, he claimed as follows. That he worked for a company as a bricklayer and was told that the company was taking contracts on behalf of Beton AD. He was paid monthly in cash. He was young and inexperienced. He was happy to get the job at the time. He was happy to learn the trade and worked hard. He even attended a course and in a few days got a Diploma. The job did not last long as his boss lost connection with Beton and lost the contracts. The applicant claimed that when it was time to ask for a reference, he contacted the boss of the company who told him that he was taking contracts from Beton and would take care of the document. He was then given the employment reference that was submitted with the application. He stated that he never questioned the genuineness of the document and believed it was a real document.
The applicant went on to state that he is not responsible for a corrupt system and society and that after undertaking his own investigations he found out that he was not employed for Beton but worked for a bricklayer that had some connection with the company and was getting subcontracting work for three years. He stated that he was devastated by this and realised that he was a victim of the situation and that this could affect his life and career.
In relation to the Diploma certificate, the applicant stated that he got his Diploma from Workers’ University after attending the course in June 2005. He stated that after finishing the course, which cost him MKD 8,000 cash (AUD 200), he provided all his information and was told that they will issue the Diploma in a few days and he got the document which he submitted with the visa application. He referred to the information in the notice indicating that his details were not in the university’s database and that the document is bogus and stated that he could not believe that this had happened to him. He claimed that the situation relating to his employment and qualifications happened at the same time and that during that time the system changed from socialism to capitalism and the society was unstable, corrupt and politically oriented. He stated that regarding the Diploma certificate, he assumes that a certain group of people collected the money and spent it for their own purposes and never gave his information to the right place, otherwise they would have had to report taking the money from students. He stated that he was given the document and never doubted its genuineness.
In submissions to the Tribunal, the representative contended that the applicant had never intended to mislead the Department or provide incorrect information or bogus documents. It was submitted that the applicant did not question the genuineness of the employment reference and that a new employment reference had now been obtained from the Director of ZDG “Nova Gradba” Dooel Prilep, Milka Ingilizova, which confirms the applicant’s claims that he was subcontracting to Beton AD. It was submitted that this new reference proves that the applicant never submitted the bogus document or had any intention to mislead the Department as he was subcontracting for two years.
In relation to the Diploma certificate, the representative submitted that the applicant did not suspect that the diploma document was not genuine as he had attended the course and provided his information. It was submitted that the applicant passed the exam and deserved the diploma in any case. The representative went on to submit that the applicant is a credible person and that he was a victim of a corrupt system. Information from the internet, including a country profile and Wikipedia extract about corruption in Macedonia was provided.
The Tribunal also had regard to the reference letter from Milka Ingilizova stating that she is the owner of ZDG “Nova Gradba” Dooel Prilep, and that her company undertook bricklaying work for Beton AD in Prilep. It stated that the applicant was not a direct employee of Beton but had worked for her company “Nova Gradba” and that after the contract with Beton expired she fired the workers of which the applicant was one.
At the hearing, the Tribunal asked the applicant about his education history, employment history, his initial visa application to Australia and how he obtained the Beton employment reference and Diploma certificate documents. A summary of the applicant’s evidence, the Tribunal’s concerns, as discussed with the applicant at the hearing and the Tribunal’s consideration of the evidence follows.
The applicant gave evidence that he finished high school in Prilep in August 2004 after which he commenced working as a bricklayer with a company. He was told the company was called Beton. He worked with the company until 2007. He worked about 5 or 6 days a week and was paid cash MKD 7,000–8,000 monthly. He stated that his salary was given to him by Romeo Poleski, whom he regarded as his boss. He stated that Mr Poleski was the person who knew about the projects and what they needed to do. The applicant indicated that he did not know if Mr Poleski was also an owner of the company and that he just regarded him as the boss.
When asked about the Diploma course, the applicant stated that he decided to do the course to improve his job prospects and his wages. The Tribunal asked the applicant about how he enrolled in the course, its duration and the subjects undertaken. In response, he stated that he and a number of other people, about 10–12, went to the capital Skopje to do the course. He stated that they attended a building site where they had to demonstrate their skills by setting up different profiles and laying bricks. He stated that he paid about MKD 8,000 to a person for the course. He indicated that he did not attend any classes at the university and did not have any contact with the university’s administration. He claimed that the course was conducted on a building site. He paid the course fees with about 10 or 12 other people and thought there was nothing to worry about.
When asked for further details, he stated that he applied for the course in September 2004 and that this was the first time he went to Skopje for the course. He claimed to have met with two people, to whom he gave money and signed some papers. He stated that the first time he attended the course, in September 2004, he was in Skopje for two days and that after two months he returned there for one day. He stated that there was a gap because of the cold weather and they next met in March 2005 for another two days and the last time he went there was in June 2005. He stated that while they were there they learned about projects, looked at the plans and learned how to do things better. He stated that they never entered a classroom and that all of the instruction was done on a construction site. He said he thought that this was how things worked and did not suspect that the Diploma certificate was not genuine. When asked if he was required to undertake any specific subjects or tests for the diploma and whether he obtained an academic transcript, he stated no they just learned practical skills and they showed them how to perform the tasks of the job better.
The Tribunal brought to the applicant’s attention that in his response to the Department, he stated that he got his diploma from the university after attending the course in June 2005 for a few days. The Tribunal raised the concern that this appears inconsistent with his evidence that he attended the course several times in Skopje between September 2004 and June 2005. In response, the applicant stated that when responding to the notice he just referred to when the course finished.
The Tribunal provided details of the information obtained by the overseas post from the administrator of the Workers’ University in Macedonia which indicated that the Diploma certificate he provided was not issued by the university and explained that the Tribunal may rely on that information to conclude that he had provided a counterfeit or bogus document.
In response, the applicant stated that he was shocked when he found out that the document was not genuine. He stated that he did the course and never believed this occurred. He stated that it is difficult to find out now who did this because they paid in cash and cannot blame anyone. He stated that he knows he attended the course.
The Tribunal informed the applicant that it found it somewhat difficult to comprehend that a group of people would take money from him, provide instructions over the duration of a whole year and then decide to issue a fake Diploma certificate. In response, the applicant stated that they must have thought that no one will ask about the genuineness of the diploma. He stated that they would have collected the money for the course and decided not to put his information in the database so that they could keep the money for themselves.
The Tribunal asked the applicant about his first visa application to Australia. In response, the applicant gave evidence that he applied for a student visa to come to Australia in 2012. He stated that he was living in Prilep at the time and made the application through an agent. When asked if he had declared his Diploma qualification in construction/masonry in that student visa application, the applicant stated he had not. He stated that the highest qualification he declared in that application was the higher school certificate and that he had not declared any other qualification. When asked if he had declared his work experience in Macedonia as a bricklayer, he gave evidence that he had not. In further explaining why he had not declared his Diploma qualification in construction/masonry or work experience as a bricklayer, he stated that he wanted to put this information behind him and to try something else.

The Tribunal put to the applicant that the fact that he did not declare that he had obtained a diploma-level qualification or his claimed work experience as a bricklayer in his initial student visa application, may lead the Tribunal to conclude that he had not genuinely obtained a Diploma qualification in construction/masonry or that he worked as a bricklayer in Macedonia for the period claimed. In response, the applicant stated that at the time he did not think he would be working as a bricklayer. He stated that after he started working in construction and was getting paid well he could see himself working as a bricklayer again.
The Tribunal discussed with the applicant the information obtained from Beton AD during the integrity checks regarding the employment reference and showed the applicant a copy of the blank letterhead and company stamp provided by Beton AD to the overseas post. In response, the applicant stated that he just provided the letter that was given to him when he requested an employment reference. He stated that he did not question the genuineness of the letter. The Tribunal expressed to the applicant its concern with his claim that he worked for a company called Novo Gradba for a period of over two years and did not realise that it was called Novo Gradba and thought it was Beton AD. In response, the applicant stated that when he was working there he was paid cash. He did not care that they were subcontracting to another company and he never asked about the name of the company and that things were different in those days. He stated that it was a long time ago. The Tribunal noted that the reference was obtained quite recently, in October 2016.
The Tribunal asked the applicant why he had obtained the reference letter in October 2016. In response, the applicant stated that he needed it for the 457 visa. The Tribunal put to the applicant the concern that he may have knowingly obtained the contrived documents in order to establish that he had the skills and relevant experience to perform the tasks of the occupation of bricklayer. In explaining this further, the Tribunal referred to the skills and qualifications required for the position as set out in ANZSCO for the occupation of Bricklayer (331111), which it noted would have been considered by the delegate when determining whether he had the skills and qualifications necessary to perform the tasks of the occupation. The Tribunal noted that he would have had to demonstrate that he had either a Certificate III, including two years of relevant experience, or a Certificate IV or at least three years of relevant work experience.
The Tribunal noted that on his evidence, he had been working in Australia as a bricklayer since May 2016 and that at the time of the visa application, in April 2017, he only had about 11 months experience, and so he would have been about two years and one month short of having the required three years of relevant experience. The Tribunal asked the applicant if he obtained the contrived employment reference indicating that he had two years and two months of work experience as a bricklayer with Beton AD in Macedonia so as to meet the skills requirement for the grant of the visa. In response, the applicant stated that he could have waited until he completed three years of work experience with his Australian employer then applied for the visa.
The Tribunal discussed with the applicant his response to the notice in which he stated that he had contacted his boss and that the boss said to him that he has a contact in Beton AD and could get a reference. The Tribunal noted that this appears to suggest that he was aware that the company he claims to have actually worked for was not called Beton AD and that the reference was obtained through a contact. In response, the applicant stated that he relied on his boss and thought he was a responsible person who knew what he was doing.
The Tribunal asked the applicant about the reference from Ms Milka Ingilizova, the owner of Nova Gradba, and raised the concern that she had never been mentioned as being his employer prior to the review. In response, the applicant stated that she is the Director of the company and that when he made enquiries about the reference they told him to go to the owner of the company and this was the additional document they gave to him. The Tribunal expressed its concern that the document may have also been contrived and noted that it may not give it much weight in its considerations.
When asked if he wanted to say anything further regarding whether he has provided incorrect information and bogus documents, the applicant stated that he provided everything that he knows and he stands behind all the information he has given. He stated that he was shocked when he found out what happened.
The Tribunal explained to the applicant that for the purposes of determining whether there has been a breach with s.101 and s.103, as described in the s.107 notice, s.111 of the Act provides that it does not matter if the breach was deliberate or inadvertent and that if the Tribunal concludes that he did provide incorrect information or a bogus document then he will be found to have breached s.101 and/or s.103. The applicant stated that he has no control over what happened to him.
The Tribunal now turns to consider the evidence before it as follows.
It is not clear from the written material or the applicant’s oral evidence whether he accepts that he has provided incorrect information and bogus documents or whether he is claiming that the information he provided is correct and the documents were not bogus because he either believed them to be genuine or because they were issued to him by persons whom he believed were authorised to issue the documents. The Tribunal has nevertheless assessed the evidence, as detailed above, when determining whether there was non-compliance as described in the notice and further below when considering the correct information and the circumstances of the non-compliance.
For the reasons that follow, the Tribunal has concluded that the applicant has provided incorrect information in the 457 visa application form and that he has provided bogus documents in support of that application.
Section 101(b) of the Act requires visa application forms to be completed in such a way that no incorrect answers are given or provided and s.103 requires that bogus documents are not to be given. The applicant indicated on the application form that he worked for Beton AD as a Bricklayer between November 2004 and January 2007 and provided a letter purporting to be from Beton AD in support of this claimed work experience. Integrity checks revealed that Beton AD did not issue the employment reference to the applicant and that the letterhead and company stamp shown on the reference does not belong to Beton AD. The applicant claimed that he was shocked by this information as he thought the company he worked for as a bricklayer in Macedonia was called Beton AD and that he has since found out that this company was just undertaking subcontracting work for Beton AD. Although in his response to the Department the applicant did not provide the name of the company he claimed to have worked for as a bricklayer in Macedonia, on review, he provided a letter from Ms Ingilizova stating that the applicant worked for her company “Nova Gradba” in Prilep as a bricklayer between November 2004 and January 2007.
The Tribunal assessed the credibility of the applicant’s claims about his employment in Macedonia later in the decision, however, for the purposes of establishing whether there was non-compliance as described in the notice, the Tribunal is satisfied on the evidence before it, including the information obtained by the Department’s overseas post and the evidence provided to the Tribunal, that the applicant was not employed in Macedonia by Beton AD. It follows that the applicant has provided incorrect information regarding his past employment in the visa application form. The Tribunal accordingly finds that the applicant has not complied with s.101(b) of the Act.
The applicant claims that he obtained the Beton AD employment reference from his boss in Macedonia who told him that he was taking contracts from Beton and would take care of the document. The applicant has not provided any substantive evidence to demonstrate that his boss in Macedonia is a person authorised to issue employment references on behalf of Beton AD. Furthermore, during the integrity checks, Beton AD confirmed that the letterhead and company stamp used for the reference did not belong to them and was not issued by them. On the basis of this evidence, the Tribunal considers that the employment reference provided with the 457 visa application purporting to be from Beton AD is a bogus document within the meaning of s.5(1)(b) of the Act because the Tribunal reasonably suspects that the employment reference is counterfeit or has been altered by a person who does not have the authority to do so. The Tribunal accordingly finds that the applicant has provided a bogus document with his visa application. He has therefore not complied with s.103 of the Act.
The evidence in relation to the Diploma in Construction Workers’ Training purporting to be from the Workers’ University “Koco Racin” in Skopje, Macedonia, also suggests that the diploma document is counterfeit. Although the applicant claims to have attended the course for which he was issued the Diploma certificate, the information obtained during the integrity checks, which the Tribunal prefers, and which it considers to be credible and reliable, reveals that the Diploma certificate is not recorded in the University’s database and that the registration number noted on the certificate is not valid. On this basis, the Tribunal finds that the Diploma in Construction certificate provided by the applicant with his 457 visa application is also a bogus document because the Tribunal reasonably suspects that the document is counterfeit or has been altered by a person who does not have the authority to do so. The Tribunal accordingly finds that the applicant has not complied with s.103 of the Act.
For the above reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 and have been considered by the Tribunal as follows.
The correct information
The Tribunal considers that the correct information is that the applicant did not work for Beton AD as a bricklayer between November 2004 and January 2007 as claimed in the application. When asked if he wanted to comment on this, the applicant stated that he was working in Prilep and he was told that they were taking contracts but was not sure of the company structure.
The Tribunal expressed to the applicant its concern about the credibility of his claim and asked the applicant why, if he had genuinely worked for a construction company in Prilep named Nova Gradba, would his employer go through the effort of contriving a letterhead in the name of one of the companies they undertook contract work for. In response, the applicant stated that maybe they tried to help but it did not work out that way. He stated that he asked for a reference to show his employment and that was the reference they gave him.
The Tribunal has considered the applicant’s response, but does not accept that the incorrect information was only in relation to the name of the company he had worked for and that this may have been due to him not understanding the company structure. The Tribunal considers that if the applicant had genuinely worked as a bricklayer in Macedonia between November 2004 and January 2007 for Novo Gradba, as he now claims, then he would have known the name of the company that employed him for over two years. The Tribunal also considers it significant that the applicant did not declare his employment as a bricklayer in his initial student visa application in 2012. The Tribunal has had regard to the applicant’s explanation that he did not declare his work experience as a bricklayer because he wanted to put this information behind him and try something new and did not think he would be working as a bricklayer, but did not consider this explanation to be credible. The Tribunal considers that if the applicant had worked as a bricklayer in Macedonia for over two years as claimed then he would have made some mention of this in his 2012 student visa application. The fact that he has not done so strongly suggests that the applicant did not work as a bricklayer for any company in Macedonia.
The Tribunal is not satisfied that the letter provided on review from Ms Milka Ingilizova of Nova Gradba overcomes the concerns of the Tribunal regarding the applicant’s claimed employment as a bricklayer in Macedonia. Also, the applicant made no mention of Ms Ingilizova or Nova Gradba in his initial response to the notice. The Tribunal has formed the view that this reference has been contrived for the purpose of the review and gives it no weight.
The Tribunal considers that the applicant has knowingly provided incorrect information about his employment as a bricklayer in Macedonia so as to satisfy the skills and experience requirement for the 457 visa.
The Tribunal also considers that the correct information is that the applicant did not obtain a Diploma qualification in construction/masonry from the Workers’ University in Macedonia. When invited to comment on this, the applicant stated that he was with the wrong people at the wrong time. He stated that he finished the course and paid for it. He stated that there was a lot of corruption at the time and because he paid for the course in cash, and could not prove that payment, he was then taken advantage of. The Tribunal acknowledged that the applicant had provided information about corruption in Macedonia but noted that the evidence indicates that the corruption was in relation to business dealings and political interference and that there was nothing to suggest that the education system in Macedonia was corrupt. In response, the applicant indicated that for example if the University was to issue 50 diplomas, they might not issue the diplomas in respect of 10 people and instead keep the money in respect of those 10.
The Tribunal has considered the applicant’s response but did not find the explanations to be convincing. There is limited evidence before the Tribunal which suggests that the education sector in Macedonia is corrupt in the way that the applicant has described. Furthermore, the Tribunal considered the applicant’s evidence regarding his attendance and completion of the course to be inconsistent and lacking in credibility. In his response to the notice, he claimed that he attended a course and in a few days got a Diploma. He also stated that he got the Diploma certificate from the University after attending the course in June 2005. The representative submitted that the applicant attended the course, passed the exams and deserved the Diploma. However, at the hearing the applicant claimed that he enrolled in the course in September 2004 and attended a construction site in Skopje on four occasions between September 2004 and June 2005 after which he was issued the certificate by some people, whom he now believes have defrauded him and taken his course money. The applicant gave evidence that he did not attend the University’s campus or deal with the University’s administration when enrolling for the course and that it was all undertaken on a construction site in Skopje and that the certificate was then given to him in June 2005. Notwithstanding the applicant’s explanation that he was only referring to when he received the certificate when he mentioned that he undertook the course in June, the Tribunal considers that the applicant has provided inconsistent information about his enrolment in the course. Furthermore, the Tribunal does not find credible that the applicant was defrauded by some people who nevertheless provided classes over the duration of an academic year.
The Tribunal also considers it significant that the applicant did not declare his diploma-level qualification when he applied for a student visa to Australia in 2012. In his oral evidence, the applicant indicated that in his 2012 student visa application he indicated his higher school certificate as his highest qualification achieved. The Tribunal considers that if the applicant had genuinely enrolled in and completed a diploma-level qualification in 2005 as claimed then he would have made some mention of this in his application for a student visa in 2012.
The Tribunal has formed the view that the applicant has knowingly provided incorrect information indicating he obtained a Diploma qualification in construction/masonry from the Workers’ University in Macedonia so as to satisfy the skills and experience requirement for the 457 visa.
The Tribunal gives weight to the above considerations in favour of cancelling the visa.
The content of the genuine document (if any)
During its integrity checks, the Department was provided with a copy of the genuine letterhead and company stamp that is used by Beton AD. Even though the Department referred to this evidence in the notice and decision record in some detail, the Tribunal also had the opportunity to show the sample letter to the applicant at the hearing. The applicant acknowledged that the reference letter he provided is noticeably different from the company’s actual letterhead.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant applied for the Temporary Work (Skilled) visa, Subclass 457, so he could work in the nominated occupation of Bricklayer (331111). The applicant’s qualifications, skills and experience would have been relevant to the delegate’s consideration of whether the applicant had the skills necessary to perform the nominated occupation.
The Tribunal accordingly considers that the decision to grant the applicant a Subclass 457 visa was partly based on information and documents relating to the applicant’s claimed work experience at Beton AD as a bricklayer and claimed Diploma qualification in construction/masonry. The Tribunal gives weight to this consideration in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The Tribunal considers that the non-compliance occurred when the applicant provided to the Department, as part of his 457 visa application, incorrect information and bogus documents about his work experience and Diploma qualification.
The applicant claims that he was not aware that the company he worked for was not named Beton AD. He also claims that he was not aware that the employment reference given to him was not a genuine document and that it was given to him by his employer who used to undertake contract work for Beton AD. He also claims that he was not aware that the Diploma certificate was not genuine and that he had completed the requirements for the course. He claims to have paid for the qualification but believes that some people took his cash payment for their own purposes rather than record his details in the University’s database as they would have had to declare the monies received for the diploma.

The Tribunal does not accept that the applicant had no knowledge that the company he worked for in Macedonia between 2004 and 2007 was not named Beton AD. The Tribunal considers that if the applicant worked as a bricklayer for a company for over two years in Macedonia he would have known the name of his employer, even if he was being paid in cash and was not a registered employee. As found above, the Tribunal considers that the applicant knowingly provided the incorrect information so as to meet the skills and work experience requirement for the Subclass 457 visa.
The Tribunal also does not accept that the applicant believed that the employment reference purporting to be from Beton AD was a genuine document. Even if the applicant believed that Mr Romeo Poleski had obtained a document that was genuinely issued by Beton AD, he would have at least known that the information contained in that document about him having worked for Beton AD as a bricklayer was not true. The Tribunal considers that the applicant knowingly provided an employment reference with his application which contained untruthful information about him having been employed as a bricklayer in Macedonia for over two years, as this would have enhanced his eligibility for the 457 visa, which for the occupation of Bricklayer would have required the applicant to demonstrate that he had at least three years of relevant work experience in place of a trade certificate.
The Tribunal also does not accept that the applicant did not know that the Diploma certificate was not genuine at the time he provided it. The applicant claims to have obtained the Diploma certificate in June 2005 however he did not declare that he had a diploma-level qualification in his application for a student visa in 2012. In seeking to explain this, the applicant claimed that he wanted to put this information behind him and try something else. The Tribunal is not satisfied with the applicant’s response and considers that if the applicant had genuinely attended the course during 2004/2005 and completed a diploma-level qualification, he would have made mention of this in his student visa application in 2012. The Tribunal considers that the applicant knowingly provided a bogus Diploma certificate in construction/masonry so as to enhance his eligibility for the 457 visa.
For the above reasons, the Tribunal does not accept the submission and claim that the non-compliance was unintentional or that the applicant did not intend to mislead the Department. The Tribunal does not accept that the non-compliance was due to corruption in Macedonia or that the applicant was a victim of a corrupt system. The Tribunal also does not accept the representative’s submission that the non-compliance was due to factors outside the applicant’s control. The Tribunal considers that the applicant knowingly provided incorrect information and bogus documents with his visa application so as to enhance his eligibility for the grant of a temporary work visa.
The Tribunal considers that the circumstances of the non-compliance weigh in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant has resided in Australia since February 2013, which is a period of over five and a half years. In his written response, the applicant stated that he has proven his skills as a bricklayer through his employment with B&B Pty Ltd. He stated that he is building his career in Australia and intends to get a bricklaying licence. He stated that he is in a relationship.
At the hearing, the applicant stated that he would like to remain in Australia where he has good career prospects. In relation to his current employment, he stated that they have a good team and he can progress in his career. He would like to become a project manager in one or two years. When asked about his relationship, he stated that he has been in a serious relationship with someone for about a year. He gave evidence that the person he is in a relationship with is not an Australian citizen or permanent resident. He stated that the person is a national of Macedonia and is currently in Australia on their own temporary visa.
The applicant referred to the letter from his employer and letters of support regarding his employment to which the Tribunal has had regard. Mr Pavlevski provided employment references and gave oral evidence at the hearing. In summary, he indicated that the applicant has been employed full time with his company, B&B Pty Ltd, since May 2017 as the holder of a 457 visa. The applicant has also worked part time for the company since May 2016. Mr Pavlevski indicated that the applicant is a hardworking, reliable and highly skilled bricklayer. He indicated that the applicant is a great asset to the business due to his technical skills, ability to speak several languages from the Balkan region and his communication skills. He indicated that the company has had difficulty recruiting suitably qualified bricklayers in Australia. He provided details of the business’ current projects, its recent growth and indicated it was important for the company to maintain the employment of the applicant.
The Tribunal has also had regard to the declaration from Mr Nikolovski, who has known the applicant for two years through employment at B&B Pty Ltd, in which he stated that the applicant is a skilled, reliable and helpful bricklayer. Mr Aboud, in his letter of support for the applicant, states that he has known the applicant for two years and that B&B Pty Ltd have provided bricklaying services on several of his projects. He considers the applicant to be of good character and has a good work ethic.
The Tribunal accepts that the applicant has been in Australia for over five and a half years. While this may be a long period of time, the Tribunal notes that the applicant’s residence in Australia has only ever been on a temporary basis for the purpose of study and work.
The Tribunal accepts that the applicant is in a relationship, which he indicated has been serious for about one year. There is very limited evidence before the Tribunal about the person that the applicant claims to be in a relationship with. At the hearing, the applicant appeared somewhat guarded about providing details, though he did indicate that the person he is seeing is not an Australian citizen or permanent resident and is a Macedonian citizen. In these circumstances, the Tribunal considers it open to the applicant to pursue that relationship in Macedonia given they are both citizens of Macedonia.
In respect of the applicant’s employment, the Tribunal accepts that the applicant’s career prospects and working conditions are more favourable in Australia than they would be in Macedonia. The Tribunal also accepts that the applicant is highly valued by his employer, who would like to maintain the applicant’s employment, and that the sponsoring business may experience difficulty recruiting skilled bricklayers.
The Tribunal gives some weight to the applicant’s present circumstances in favour of not cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal discussed with the applicant at the hearing his ongoing obligation under s.105 of the Act to correct any incorrect information provided in his visa application form, particularly in relation to his claimed employment with Beton AD. In response, the applicant stated that when he provided the information he thought that it was the correct information. For the reasons given above, the Tribunal does not accept that the applicant believes that he had given the correct information. The Tribunal considers that the applicant was aware that he had provided incorrect information about his claimed employment with Beton AD in his application and that when he was confronted with the information obtained during the integrity checks indicating that he had not worked for that company, he chose to contrive further information about having worked for a subcontractor of Beton AD and not knowing that his employer was not Beton AD, rather than correcting the incorrect information he had provided with his application.
The applicant’s subsequent conduct reflects poorly on him and weighs in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is not aware of any other instances of non-compliance.
The time that has elapsed since the non-compliance
Two years and four months have passed since the non-compliance with s.101 and s.103.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any breaches of the law since the non-compliance.
Any contribution made by the holder to the community
The applicant has provided a letter from the Australian Macedonian Humanitarian Association indicating that he is an active member of the Association in Sydney. The Tribunal has also had regard to the references provided regarding the applicant’s employment in Australia and accepts that the applicant has also contributed to the Australian community through his employment as a bricklayer.
Other considerations
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
In relation to the mandatory legal consequences of cancellation, the Tribunal explained to the applicant that if his visa is cancelled and he is not granted another visa to remain in Australia before his associated bridging visa ceases, or he does not depart Australia, he could become an unlawful non-citizen and may be detained and ultimately removed from Australia. The Tribunal also noted that the cancellation may affect his eligibility to return to Australia on a temporary visa, such as a student visa or 457 visa, for a period of three years. The applicant indicated that he understood. The Tribunal considers the mandatory consequences of cancellation to be an intended consequence of the legislation and gives it limited favourable weight in the exercise of its discretion.
Consequential cancellation under s.140 is not relevant in the circumstances of this case.
In relation to his circumstances in Macedonia, the applicant stated that he is concerned about the direction in which the country is going and the political situation there. He stated that he believes that it will be more of a struggle for him there. The Tribunal acknowledges that the applicant is concerned about the political circumstances in Macedonia and would prefer to remain in Australia where he is gainfully employed. The applicant’s evidence does not appear to raise any issues relating to Australia’s international obligations.
Overall considerations
The Tribunal has considered the evidence before it and has weighed up all of the relevant circumstances in this case. The Tribunal gives some weight to the current circumstances of the applicant and the hardship that may be experienced by the applicant and his employer if the applicant is unable to remain in Australia to work as a bricklayer. The Tribunal also gives some weight to the applicant’s contribution to the community through his employment as a bricklayer, which the employer indicated is currently a difficult position to fill in Australia. Against these circumstances however is the fact that the applicant, as found above, has knowingly provided incorrect information and documents in support of his temporary work visa. The Tribunal considers the provision of incorrect information and bogus documents to be significant, particularly in the circumstances of this case, where the information and documents resulted in the applicant being granted a visa for which he otherwise would not have been granted. The Tribunal considers the factors in favour of cancelling the visa outweigh those against cancellation of the visa.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
R. Skaros
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.

[2018] AATA 4112

27 August 2018

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Immigration

Administrative Law

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Procedural Fairness

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