Shah (Migration)
[2021] AATA 1079
•15 March 2021
Shah (Migration) [2021] AATA 1079 (15 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Asad Niaz Shah
CASE NUMBER: 1835252
HOME AFFAIRS REFERENCE(S): BCC2017/3153901
MEMBER:Justin Owen
DATE:15 March 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 15 March 2021 at 10:46am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – primary applicant wife provided bogus documents and incorrect information in previous visa application – study and work experience – verification checks – credibility – attempts to establish genuineness of study, work and documents – institution since deregistered, employer is associated with wife’s family – vague evidence – wife’s other, genuine qualification not listed in application – husband’s qualifications and work experience also found to be non-genuine – discretion to cancel visa – wife genuinely qualified in another subject area and working professionally in Australia – long residence and integration into community – children’s education and future plans – best interests of children – country information – status of young, educated, Westernised women in home country –decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 101(b), 103, 107, 107A, 109(1), 359A
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cls 175.211(a), 175.221, Schedule 4, criterion 4020(1), (5)CASES
MIAC v Khadgi (2010) 190 FCR 248
Trivedi v MIBP [2014] FCAFC 42
Wan v MIMA (2001) 107 FCR 133statement of decision and reasons
application for review
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 and s.103 of the Act in relation to a previous visa he had held, namely a subclass (175) Skilled visa that she had been granted on 7 November 2011. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant Mr Asad Niaz Shah had entered Australia on 11 November 2011 as a dependent visa holder on the Skilled – Independent (subclass 175) visa held by his wife, Dr Sophia Umer.
The applicant’s wife Dr Umer (the primary applicant) had lodged an application for a Skilled – Independent (subclass 175) visa on 27 January 2009, nominating the occupation “Computing Professionals – Software designer” which was at the time included on the Skilled Occupation List. The applicant and Dr Umer’s daughters Miss Marwa Asad Shah (born 18 March 2003) and Miss Safa Asad Shah (born 13 February 2005) were also included on their mother’s application as dependent applicants.
The delegate considered that there was non-compliance by the primary applicant in relation to s.101(b) that requires visa applications are to be correct, noting that a non-citizen must fill-in or complete his or her firm in such a way that no incorrect answers are given or provided. The delegate also considered the primary applicant had not complied with s.103 of the Act that is, bogus documents are not to be given. Bogus documents relevantly include a document the Minister reasonably suspects are counterfeit or has been altered by a person who does not have authority to do so. As this was the case, the primary applicant’s visa was liable for cancellation under s.109 of the Act. The delegate, after subsequently considering the applicant’s response and having regard to any prescribed circumstances, cancelled her subclass (155) Resident Return visa on 29 November 2018.
The applicant, Mr Asad Niaz Shah’s, visa as a dependent visa applicant of his wife’s former Skilled- Independent (subclass 175) was also cancelled on 29 November 2018. The Tribunal notes his two daughters’ visas were also cancelled as dependent visa applicants of the primary applicant Dr Umer on that same date.
On 30 November 2018 the applicant applied to the Tribunal for review of the delegate’s decision to cancel his visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal via videoconference on 21 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister-in-law Ms Maria Umer, and Mr Muhammad Nawaz from the American International College in Lahore.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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
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.
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.
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 and s.103 of the Act.
Was there non-compliance as described in the s.107 notice?
Particulars
On 27 September 2018 the Minister’s delegate invited Dr Sophia Umer (the ‘primary applicant’) to comment on the delegate’s intention to consider cancellation of her subclass (155) (Five Year Resident Return) visa. The primary applicant had been granted a subclass 155 (Resident Return) visa on 31 July 2017.
The Minister’s delegate also invited the applicant Mr Asad Niaz Shah to comment on the delegate’s intention to consider cancellation of his own subclass (155) (Five Year Resident Return) visa on 2 October 2018.
A response on behalf of both the primary applicant and the applicant’s two daughters was made on 23 October 2018. On 5 November 2018 the applicant’s representative requested that the applicant treat this response as also the formal response of the applicant Mr Shah.
On 29 November 2018 the Minister’s delegate, having taken into account the applicant’s response, decided to exercise discretion under s.109 of the Act to cancel the applicant’s visa having decided that the applicant did not comply with s.101(b) and s.103 of the Act. In that decision, the Minister’s delegate concluded the reasons for not cancelling the applicant’s visa did not outweigh the non-compliance.
Section 101 of the Act states: “A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.
Section 103 of the Act states: “A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a Tribunal performing a function or purpose under this Act, a bogus document, or cause such a document to be so given, presented or provided”.
The Tribunal notes that the claimed non-compliance relates to a visa that the applicant has previously held. At the time of the cancellation of the visa, the applicant was no longer the holder of the subclass (175) Skilled visa he previously held as a dependent visa holder. s.107A of the Act states that possible non-compliances in connection with a previously held visa may be grounds for the cancellation of a visa holder’s current visa. In this case, the applicant’s claimed non-compliance relates to his previously held subclass (175) Skilled visa. The applicant was granted a subclass 155 (Resident Return) visa on 24 August 2017.
Claimed non-compliance
The particulars of the information from the delegate’s decision record of 29 November 2018 are that in association with the primary applicant Dr Umer’s application for her subclass 175 (Skilled visa) application, the primary applicant completed and submitted the `General Skilled Migration Applicant Form' and provided other documentation that did not comply with s.101(b) and s.103 of the Act.
This application form contained, in part, the following questions and answers provided by the primary applicant Dr Umer. These were summarised in the delegate’s decision record and put to the applicant under s.359A on 22 July 2020, having been previously put to Dr Umer in her own review on 20 March 2020:
On page 1 under `Work experience or two year study', it asked the primary applicant to `select the condition that applies to you'. The selected option of the primary applicant was: "You have worked in an occupation on the Skilled Occupations List (SOL) for 12 out of the 24 months immediately before lodging this application."
On page 11 under `Applicant skills assessment', this question was answered by the primary applicant, in part, as follows:
`Nominated Occupation': "Computing Professionals - Software Designer"
`Name of assessing authority': "Australian Computer Society"
`Date of Skills Assessment': "8 DEC 2008"
'Reference/Receipt number': "336961"
`Have you been employed in this occupation or a closely related occupation for 12 out of the 48 months immediately before lodging this application?' "Yes"
On page 12 under `Applicant educational qualifications', it is stated, `Please provide details of Australian and/or overseas post-secondary qualifications.' The primary applicant answered the question, in part, as follows:
`Overseas qualifications':
`Qualification': "Masters Degree"
`Course name': "Masters in Computer Sciences"
`Institution name': "American International College"
`City': "Lahore"
`Country': "PAKISTAN"
`Date from': "4 JUN 1988"
`Date to': "27 SEP 2000"
On page 13 under `Applicant past employment', it was stated, `List your employment for the last four years. Only past employment in occupations on the Skilled Occupations List is relevant.' The primary applicant answered the question as follows:
`Position': "Computing Professionals — Software Designer"
`Employer name': "LYCETECH"
`Country': "PAKISTAN"
`Date from': "1 FEB 1998"
`Date to': "4 JAN 2009"
`Description of duties': "I am responsible to desgin (sic) and development software application for our corporate clients as assigned by the management. I am also responsible (sic) to coordinate with the clients and provide them technical support of continuous basis. To ensure the successful deployment of the application ontime (sic) is also the part of my duties"
`Applicant current occupation and duties':
`Describe your current occupation and duties in detail for inclusion on the Skill Matching Database:' "I am currently employed in Lycetech from February (sic) 1998 to date as software engineer and now the senior software engineer. I have strong skills in client server application development using various platforms like Visual basic, Oracle developer using DBMS system like MS SQL Server and Oracle database."
On page 16 under `Declaration for all applicants', it is stated `Warning: Under the Migration Act 1958, there are penalties for deliberately giving false or misleading information'. This statement was acknowledged by the primary applicant Dr Umer answering "Yes".
The Tribunal notes from the Departmental file and the delegate’s decision record that the primary applicant submitted to the delegate a range of evidence and information pertaining to her educational qualifications and work experience for the nominated occupation `Computer Professional — Software Designer'. These included:
·Employment reference letter from the Project Manager of Lycetech, Mr Asim Imran, attesting to the primary applicant’s position of Software Engineer within the company from February 1998 and her subsequent promotion to Senior Software Engineer from October 2000, dated 16 September 2008; and
·Certificate of qualification from the American International College for a Master of Computer Sciences from 1998 to 2000.
·On page 5 of the primary applicant’s Form 80 — `Personal particulars for character assessment', the applicant provided the following information concerning her previous employment and educational qualifications - namely in the answers to question numbers 22, 23 and 24:
The Tribunal notes that the primary applicant - and the applicant as a dependent applicant - were granted Skilled (Subclass 175) visas on 7 November 2011 on the basis of the aforementioned information, as well as meeting all the relevant criteria, including the criteria found at paragraphs 175.211 and 175.221 of the Migration Regulations 1994 (`the Regulations') which state, in part:
Regulation 175.211
(a) the applicant has been employed in a skilled occupation for at least 12 months in the period of 24 months ending immediately before the day on which the application was made...
`skilled occupation' is defined in Part 1, Division 1.2 of the Regulations and states:
`skilled occupation' means an occupation that is specified by the Minister in an instrument in writing for this definition as a skilled occupation for which a number of points specified in that instrument are available
Regulation 175.221
The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.
Note That Subdivision of the Act provides in sections 92 to 96 for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark.
The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6B of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument (Act, section 96).
As outlined in the delegate’s decision record, at the time the primary applicant lodged her submissions and evidence for the Skilled (Subclass 175) visa, some 120 points were required to meet the criteria under Regulation 175.221. The delegate noted that the primary applicant had accumulated points for the information she had provided about her occupation (60 points) and specific work experience (10 points). These points, the delegate asserted, were necessary to enable the primary applicant to meet the criteria for the grant of the visa.
The Tribunal put this information to the applicant under s.359A on 22 July 2020. The Tribunal furthermore in its correspondence asked the applicant to comment on or respond to the following findings of the delegate in her decision record:
·Subsequent to the grant of this visa, the Department received information that the primary applicant had provided incorrect information in support of the application which included fraudulent documents in relation to the primary applicant’s claims for the nominated occupation.
·The Department conducted verification checks of the documents submitted in relation to the primary applicant’s claims to the nominated occupation for the visa, including the additional letter from New Garden Town campus of the American International College provided in response to the allegation. The verification checks revealed that the employment reference letter dated 16 September 2008 from `Lycetech' attesting to the primary applicant’s position as a Software Engineer within the company from February 1998 is fraudulent. Furthermore the certificate indicating the qualification for the Master of Computer Sciences from the American International College is also fraudulent.
·Specifically, it has been revealed that the American International College campus at `New Garden Town' has been closed since five years ago and it is not possible that a letter would have been issued by them on 4 April 2016 verifying her qualification.
·It has also been revealed that the company name ‘Lycetech' for a software technology company does not exist in Lahore, Pakistan and the contact number on the employment reference letter is registered to `The Lyceum School' who have held this contact number for 15 years and have never heard of the company name Lycetech'. Perusal of the company website also reveals that while it is active, it is for sale.
·Based on the Department's findings, it was considered the documents provided in support of the nominated occupation `Computing Professionals — Software Designer', an occupation listed in the instrument specified by the Minister for the Skilled — Independent (subclass 175) visa, are either counterfeit or have been altered by a person who does not have authority to do so. It appears that these documents have been fabricated for the purpose of meeting the criteria for the approval of the Skilled — Independent (subclass 175) visa which indicates that the primary applicant was not qualified as a Computing Professional — Software Designer and she did not work in this occupation as claimed.
·Consequently, it appears that incorrect answers have been provided to the questions in the application forms and bogus documents have been submitted in support of the nominated occupation for the Skilled — Independent (subclass 175) visa, in which the applicant was included as a dependent applicant.
·Specifically, on pages 1, 11, 12 and 13 of the `General Skilled Migration Applicant Form' and page 5 of Form 80 — `Personal particulars for character assessment', when the questions were answered in relation to the primary applicant’s past employment and educational qualifications, by stating the primary applicant had obtained a Master in Computer Sciences qualification from the American International College in 2000 and that she had worked as a Software Engineer and Senior Software Engineer for the company, Lycetech' from February 1998 to January 2009.
·As it appears the primary applicant was not qualified in the nominated occupation `Computing Professional — Software Designer' and she had not worked in this occupation with ‘Lycetech' as claimed in the visa application, it is considered that there has been non-compliance by the primary applicant with section 101(b) of the Act because in support of the application, the above incorrect answers were provided on the associated application forms.
·Further, on page 16 of the `General Skilled Migration Applicant Form', under `Declaration for all applicants' where it is stated `Warning: Under the Migration Act 1958, there are penalties for deliberately giving false or misleading information', this statement was acknowledged by selecting "Yes". By answering "Yes" to the above declaration, the primary applicant agreed to provide correct, accurate and up-to-date information in the visa application, but it appears you have failed to do so.
·It is also considered that there has been non-compliance with section 103 of the Act because in support of the application, it appears the following bogus documents were submitted by the primary applicant:
Employment reference letter from Project Manager of Lycetech, Asim Imran, attesting to your position of Software Engineer within the company from February 1998 and subsequent promotion to Senior Software Engineer from October 2000, dated 16 September 2008; and
Certificate of qualification from the American International College for your Master of Computer Sciences from 1998 to 2000.
·It appears that the above documents are bogus documents within the meaning provided by paragraph (b) of section 5(1) of the Act — `is counterfeit or has been altered by a person who does not have authority to do so' because the Department completed an integrity check which revealed that these documents are fraudulent.That the primary applicant obtained her Bachelor of Medicine and Surgery qualification from the Allama Iqbal Medical College in 2000: meaning that she would have been studying both unrelated courses simultaneously whilst still working as a Software Engineer for Lycetech.
·That the claim Lycetech has split into two separate companies – ‘The Lyceum’ and ‘The Lahore Lyceum’ is false and perusal of the website for “The Lyceum School’ shows whilst it provides detailed information of the history of the school, there is no mention of its affiliation with Lycetech, The Lyceum or any sister company in the IT/software area.
·That a google search of ‘The Lyceum’ and ‘Lycetech’ brought up a website for ‘Lycetech Education Services’ and whilst the website is copyright from 2009, the website was created on 11 February 2018 and does not appear to be genuinely active and that the Director of the ‘Lycetech’ company is the primary applicant’s sister Maria Umer.
On 3 August 2020 the applicant’s representative responded, stating he relied on the submissions, responses and comments made by his wife the primary applicant and himself in this matter. The Tribunal therefore notes on 31 March 2020 the primary applicant responded to the Tribunal’s similar s.359A invitation she received. The primary applicant through her representative stated that her response and supporting documentation provided to the delegate in her response to the 27 September 2018 Notice of Intention to Consider Cancellation should be incorporated by the Tribunal as her response to the Tribunal. Further commentary was also provided in relation to the claimed AIC qualification; the existence of Lycetech; a “dob-in” concerning the applicant; and the Tribunal’s potential exercise of its discretion. The Tribunal has therefore incorporated the response of the primary applicant Dr Umer as the response of the applicant Mr Asad Niaz Shah.
The Tribunal has noted the response of the primary applicant to the NOICC dated 23 October 2018. This response was provided also on behalf of the applicant. The primary applicant disputed the allegation there was non-compliance as set out in the Notices. The primary applicant provided a statutory declaration where she set out the circumstances in which she claimed to have completed her studies and worked as a Software Engineer and subsequently a Senior Software Engineer. The primary applicant claimed the issues concerning the validation of her Masters degree from the American International College were explained by the institution utilising old stationary.
The primary applicant made further written submissions in relation to a number of matters that had been put to them under s.359A in her response to the Tribunal of 31 March 2020. The primary applicant denied her claimed qualification from the American International College was fraudulent. The primary applicant asserted that the delegate’s decision to dismiss the document as both “fraudulent” and “could not be verified” was contradictory, unreasonable and claimed the inability of the delegate to verify a document did not make the document necessarily false. The genuineness of the qualification was claimed due to the promotion of the primary applicant by the company Lycetech in 2000 on the basis of such a qualification; and the fact that verbal confirmation of her attendance at the course could be obtained, it was claimed from her former teacher whose phone number had been provided but he had never been contacted. The primary applicant also disputed the finding by the delegate that it was not possible that a letter would have been issued by the American International College on 4 April 2016 verifying her Master of Computer Sciences qualification given the American International College campus at `New Garden Town' has been closed some years earlier, stating that the affidavit of Mr Tahir Mahmood of 15 October 2018 stated he had in fact obtained the verification at the Faisal Town branch (that is, not the New Garden Town branch) . The primary applicant claimed these explanations were disregarded and evidence such as the affidavit of Mr Tahir Mahmood and the evidence that may have been able to be supplied by the applicant’s former teacher, were all disregarded.
The primary applicant disputed the findings of the delegate in relation to Lycetech and the delegate’s efforts in verifying the company’s existence were “logically flimsy”. The primary applicant has stated that the delegate provided no records as to whom the Department spoke to at Lycetech in their integrity checks. The primary applicant claimed furthermore that it was not even clear the Department had contacted the correct institution given the original Lycetech institution split, it is claimed into two in 2010.
The primary applicant through her representative asserted that the claim Lycetech did not exist was contrary to the findings of the overseas post that Lycetech had instead split into two entities, The Lahore Lyceum and The Lyceum: and The Lyceum was linked to Lycetech. The primary applicant claimed that the post had received confirmation that The Lyceum existed and the company’s tax records – which the delegate did accept were legitimate - that were submitted illustrated the company was genuine and active. The primary applicant complained that the delegate had selectively relied upon evidence before her and it was indicative, she had a predetermined view of this case.
At the primary applicant’s own hearing of 10 December 2020, the primary applicant provided oral testimony to the Tribunal consistent with her written submissions. The Tribunal has included her relevant testimony due to the applicant’s stated reliance on the primary applicant’s submissions and evidence in his own individual matter.
The primary applicant stated at her own hearing on 10 December 2020 that she had attempted to get her qualifications of a Bachelor degree from Punjab University as well as her American International College (AIC) qualifications verified as part of the process to acquire Australian Citizenship. She stated that the Punjab University qualifications had been verified but the AIC qualifications were not. The primary applicant stated that efforts had then been undertaken in 2016 to contact the AIC again to verify the documentation pertaining to her previous studies and qualifications by a friend of her husband who resided in Pakistan.
The Tribunal noted at the 10 December 2020 hearing that a ‘verification letter’ purportedly from the AIC dated 4 April 2016 from the American International College stating the primary applicant had completed a Master of Computer Sciences in 2000, as well as an affidavit dated 15 October 2018 from Mr Tamir Mehmood stating he presented at the AIC on 1 April 2016 to obtain the letter had been asserted as evidence of the primary applicant’s studies. The Tribunal noted that this ‘verification letter’ said it was from the New Garden Town Campus, despite the fact the Department’s verification checks stated the campus had been closed for over five years by the time of the ‘verification letter’. The primary applicant agreed that in 2016 there was no New Garden Town Campus. Dr Umer stated that Mr Mehmood had gone and acquired the letter from another AIC campus. The Tribunal asked the primary applicant why the AIC would issue Mr Mehmood with a letter and enquired as to any existence of correspondence from the primary applicant giving Mr Mehmood authority to acquire the letter. The primary applicant maintained a verbal request had been sufficient. The primary applicant also stated that she had never studied at the AIC campus but instead had attended the Faisaltown campus.
At the applicant’s own hearing on 21 January 2021, the applicant stated that he wished to rely on the same submissions that had been made by the primary applicant Dr Umer in relation to these matters. He has asserted that the primary applicant’s claims concerning her previous employment at Lycetech and her AIC studies and qualifications are genuine.
The Tribunal has considered the evidence before it but is not satisfied that the claimed Master of Computer Sciences from the American International College in the name of the primary applicant is genuine. The Tribunal considers the ‘verification letter’ dated 4 April 2016 that was purportedly issued by the ‘New Garden Town Campus’ is a bogus document. The Tribunal notes that it is not disputed that the ‘New Garden Town Campus’ of the AIC closed some years prior to the date of the verification letter. The Tribunal does not accept the primary applicant’s claims that the qualification is explained by the AIC possibly utilising old stationary and considers the claim implausible. Similarly, the Tribunal gives the affidavit of Mr Mehmood dated 15 October 2018 claiming he visited the AIC offices no positive weight and considers it has been contrived to support the primary applicant’s claims pertaining to her alleged Master of Computer Sciences qualification.
The primary applicant claims to have been promoted Software Engineer to Senior Software Engineer in October 2000 based upon the successful completion of the Master of Computer Sciences at the AIC. The primary applicant has drawn the Tribunal’s attention to correspondence from the Manager of Lycetech, Mr Ghulum Abbas, dated 17 October 2018 which asserts that the primary applicant was promoted specifically after she completed her Masters studies at AIC. Mr Abbas has stated the qualification is genuine. The Tribunal notes that the primary applicant’s family has extensive links with the Lycetech company and accepts that the primary applicant had some involvement with the company whilst she was in Pakistan. The Tribunal does not however give the correspondence from Mr Abbas any positive weight. The Tribunal’s significant doubts as to the genuineness of the claimed AIC qualification extend to any document subsequently produced purportedly supporting the existence of such a qualification. The Tribunal considers the claim that the use of AIC ‘New Garden Town Campus’ letterhead was still being utilised over five years after the college closed is quite frankly implausible. The credibility of such a claim was stretched when also considering the claimed AIC qualifications of the applicant Mr Shah. Whilst the Tribunal recognised Mr Shah’s application is a separate and independent case for review, and the grounds for the cancellation of the applicant’s visa relate to the primary applicant’s own claimed AIC qualifications and previous employment experience, at the applicant’s hearing the Tribunal noted that Mr Shah’s own AIC qualifications of a Bachelor of Business and a Master of Business Administration were each misspelt – each testamur referring to BUSSINESS – despite there being a gap of some years between each qualification allegedly being acquired. The applicant continues to insist the qualifications and the documentation are genuine. The errors arising in the official documentation of what is purported to be a legitimate higher educational institution are almost comical and, in the Tribunal’s opinion, speak to the authenticity of the primary applicant’s qualification.
On 1 March 2021 the primary applicant through her representative wrote to the Tribunal. In relation to the claimed AIC qualifications of the primary applicant and the applicant Mr Shah, it was noted that whilst some of the documentary evidence of their studies “may give rise to some questions about genuineness”, that the Tribunal take into account the following information:
a) Pakistani documentation in general does not conform to the standards that are generally expected of Australian documents or those of other developed countries.
b) The AIC was a private college which operated over time from several different locations in Lahore. The explanation that letterhead from one location might have continued to be used after the college had moved premises is not implausible in this context.
c) The deregistration of the college several years after they claim to have studied there is irrelevant.
d) In Dr Umer's (the primary applicant’s) case, leaving aside the genuineness of the documents, the Australian Computer Society accepted that a qualification from the AIC at the time she studied there was sufficient to qualify her as an IT professional at the time of her application.
These submissions do not satisfy the Tribunal as to the considerable doubts it holds to the genuineness of the AIC qualifications of the primary applicant. Whilst the Tribunal accepts that Pakistani documentation may not always have the same quality – and ease of verification- as many Australian documents, in the Tribunal’s opinion the documentation (and the supporting statements) purporting to be evidence of the primary applicant’s AIC qualification is entirely unsatisfactory. The Tribunal simply does not accept the explanations pertaining to letterhead and considers the assertions of the primary applicant and the applicant Mr Shah as witnesses implausible.
In relation to the decision of the Australian Computer Society to accept the claimed qualification from the AIC as genuine, the Tribunal recognises this assessment that was undertaken on 8 December 2008. The Tribunal nevertheless notes it has had access to extensive documentation -arguably considerably more extensive than that of the ACS – pertaining to the AIC via the primary applicant’s visa application and supporting submissions. The Tribunal recognises the ACS decision but, in the context of the Tribunal’s much broader concerns and evidence before it concerning the AIC claimed qualifications, gives the recognition little positive weight.
The Tribunal notes the claim that the deregistration of the AIC several years after the primary applicant and the applicant ceased studying is irrelevant. The Tribunal notes this refers to the AIC being blacklisted on 28 March 2006 and added top the list of illegal and fake institutions in the Punjab region. The Tribunal does not consider this an irrelevant matter. Whilst the AIC may only have been deregistered from this specific date, the Tribunal considers the deregistration speaks to the genuineness of the institution and its courses prior to the date of deregistration. Given the extensive and serious concerns expressed by the Tribunal in this decision record – from incorrect letterhead to misspelt testamurs – the Tribunal has grave and significant doubts as to the genuineness of any claim that the primary applicant studied for and completed a Masters of Computer Sciences at the AIC between 1998 and 2000, as asserted at the hearing and to the Department previously. The Tribunal retains those same doubts as to the subsequent ‘corroborative’ evidence that has been submitted from individuals such as the friend of the applicant Mr Shah that claims to have attended the AIC to obtain verification of the studies or the claim by the Lycetech employee that the primary applicant was promoted on the basis of her qualification in 2000.
The Tribunal has also considered the primary applicant’s evidence in relation to the Lycetech company she claims to have worked as a Senior Software Engineer for almost a decade prior to travelling to Australia. The Tribunal acknowledges the difficulties in navigating the evidence presented from all parties pertaining to the Lycetech company and the primary applicant’s previous involvement with such an organisation from the perspective as a Software Engineer.
At the 10 December 2020 hearing the Tribunal discussed the primary applicant’s claims concerning Lycetech and the assertion it was split between The Lyceum and the Lahore Lyceum after she departed the company. The primary applicant claims that Lycetech and its facilities were moved to The Lyceum at this time. The Tribunal has considered the claims made in the delegate’s decision record, the Tribunal’s s.359A invitations and the primary applicant’s response both in submissions and in oral testimony as to the existence of Lycetech.
The Tribunal’s principal area of focus concerning the Lyceum pertains to whether the company existed at between 1998 and 2009 and whether the primary applicant was working for this company initially as a Software Engineer and subsequently as a Senior Software Engineer as she claimed. Integrity checks in recent years have focused upon the challenges in obtaining evidence pertaining to the company at the present day, and those challenges have undoubtedly played an important role in generating significant doubts as to whether the company existed – and the primary applicant was in the roles she has claimed – between 1998 and 2009.
The Tribunal considers the evidence that has been submitted pertaining to the existence of Lycetech is sparse. Given the primary applicant claims to have worked for almost a decade for Lycetech, the Tribunal is surprised at the lack of evidence that has been submitted which would enable it to be satisfied of the veracity of the primary applicant’s claims. The Tribunal accepts that the primary applicant has provided a tax return for Lycetech in 2018 and its tax status is active. The Tribunal gives this some positive weight. The Tribunal notes the involvement of the primary applicant’s family, in particular her father, in the Lycetech company both in Pakistan and previously in the Australian operations. The Tribunal ultimately on the evidence is prepared to accept that there was a company called Lycetech that operated in Pakistan during the time the primary applicant claimed to be working for the business. The Tribunal does not however accept that the primary applicant was working as a Software Engineer, and subsequently as a Senior Software Engineer, for Lycetech between 1998 and 2009. The fact that her family may have established and operated a company does not subsequently make any claim that that company was actively involved in the computer software area and the primary applicant was working in a senior engineering role genuine.
The Tribunal notes that between 1994 and 1999 the primary applicant was at medical school, studying to complete a Bachelor of Medicine and Surgery qualification at the Allama Iqbal Medical College. The primary applicant was successful and the Tribunal accepts qualified as a medical doctor – a role she very actively holds today. At the hearing of 10 December 2020, the Tribunal asked the primary applicant whether she was studying medicine, studying for a Master of Computer Sciences at the AIC and working as a Software Engineer for Lycetech in 1998 and 1999. She said she was and stated that she was able to do so via evening classes and timetabling. The Tribunal considers the primary applicant to be a very learned, motivated and educated individual but on the evidence before it considers the primary applicant’s explanation to be implausible. The primary applicant’s oral testimony on this matter was supported by that of her husband Mr Shah, but, given the Tribunal holds very significant doubts as to the genuineness of both of their claimed academic qualifications from the AIC, the Tribunal similarly harbours significant doubts and concerns as to whether the primary applicant was working in the software engineer sector as claimed for almost a decade. The absence of any evidence of her work as a Software Engineer before the Tribunal – despite being employed for almost a decade – beyond supportive correspondence drafted for the purpose of this application and review causes the Tribunal to hold grave doubts as to the genuineness of her claim, and the authenticity of the supportive evidence that has been submitted as “evidence” that the primary applicant was working for Lycetech as claimed. The Tribunal asked the primary applicant about her work for Lycetech over 9 years in the computer programming areas. The Tribunal discussed her role in enterprise business planning and spoke of the company doing work with the Punjab Bank but generally, the Tribunal found her oral testimony on this matter to be tenuous and vague, particularly given the length of employment claimed. The Tribunal notes furthermore that the primary applicant was unable to obtain any employment whatsoever in the software engineering space after being granted her visa, despite her claimed qualifications and experience. The Tribunal accepts that obtaining employment in a new country can be a challenge and notes her claim that she attempted to procure employment. No evidence of these attempts is before the Tribunal. The Tribunal nevertheless notes that the primary applicant instead pursued undertaking various medicine based studies to ensure her Pakistani qualifications were eligible so she could work as a doctor in Australia.
The Tribunal discussed the investigations undertaken by the Department and the findings by the Post with the primary applicant on 10 December 2020. The Tribunal acknowledges that there was an acknowledgement that Lycetech had split into two entities at some point but making further contact to verify some of the claims made was problematic. A range of other circumstances such as the lack of a website address on the company letterhead has been held up as evidence that confirms the broader claim as to the existence of Lycetech. The Tribunal, despite the vague and tenuous evidence before it is prepared to accept that Lycetech the company did exist and, given the involvement of the primary applicant’s family in the company, the primary applicant was involved in some way in the company between 1998 and 2009. The Tribunal does not however on the evidence before it, consider that this involvement was as how the primary applicant and her husband, the applicant has claimed: that she was working as a Software Engineer and a Senior Software Engineer between 1998 and 2009. The Tribunal considers the letter purportedly from Lycetech claiming the primary applicant worked in such a role for almost a decade is fraudulent and the information, even accepting Lycetech was a genuine corporate entity, is false. The Tribunal considers the more likely situation is that the company has been utilised to make a claim that the primary applicant was working as a software engineer, in order to enable the applicant to meet the various criteria for an occupation that was on the Skilled Occupation List (SOL) for a Skilled – Independent (subclass 175) visa at that time. The Tribunal notes that the profession of a medical doctor was not on the SOL at the time the primary applicant lodged her visa application.
Based on all the evidence before the Tribunal, the Tribunal finds that there was non-compliance with s.101(b) and s.103 by the primary applicant in the way described in the s.107 notice.
The Tribunal is satisfied that there was non-compliance in the primary applicant’s application with s.101(b). The Tribunal is satisfied that the primary applicant provided incorrect responses in relation to her educational qualifications and workplace experience on pages 1, 11, 12 and 13 of the ‘General Skilled Migration Application Form’ she completed as part of her Skilled (Subclass 175) visa application. The Tribunal furthermore is satisfied that the primary applicant provided an incorrect response on page 5 of the Form 80 she submitted as part of her application “Personal particulars for character assessment’ when she submitted that she studied and successfully completed a Master in Computer Sciences at the American International College between 1998 and her graduation in 2000. The Tribunal is furthermore satisfied that the primary applicant provided an incorrect response on page 5 of the Form 80 where she submitted, she worked as a Software Engineer from February 1998 and subsequently as a Senior Software Engineer for the company Lycetech between 2000 and 2009.
The Tribunal is satisfied that there was also non-compliance by the application with s.103. The Tribunal is satisfied that the primary applicant provided bogus documents as part of her Skilled (Subclass 175) visa application. The Tribunal considers the documents to be ‘counterfeit’ as defined by s.5(1)(b) of the Act. These documents include the Certificate of Qualification from the American International College for the primary applicant’s Master of Computer Sciences (D1, Folio. 18) studies between 1998 and 2000. The Tribunal considers this document to be bogus and counterfeit, as it is not satisfied the primary applicant has genuinely studied and completed a Master of Computer Sciences between 1998 and 2000 as claimed. Furthermore, the Tribunal is not satisfied that the AIC genuinely existed as an educational institution as claimed.
The Tribunal also considers there was non-compliance in the application with s.103 in relation to the correspondence from Mr Asdim Imran claiming that the primary applicant worked for Lycetech as a Software Engineer from February 1998 before being promoted to the position of Senior Software Engineer, a position he claims that she held from 2000 till 2009. Whilst the Tribunal accepts that the company Lycetech may have existed, the Tribunal does not accept on the evidence before that it was a software company where the primary applicant worked for nearly ten years as a Software Engineer as claimed in the correspondence.
The Tribunal considers that other ‘counterfeit’ documents have been submitted in support of the primary visa applicant’s application for the purpose of supporting the false assertions pertaining to the primary applicant’s qualifications and employment history. The Tribunal is satisfied that these documents are non-compliant with s.103, including:
·the correspondence from the Manager of Lycetech Mr Ghulam Abbas dated 17 October 2018 stating the applicant worked as a Software Engineer from 1998 and was promoted to Senior Software Engineer in 2000 after successfully completing her Master in Computer Sciences at the American International College in Lahore;
·The “verification letter” from the American International College’s New Garden Town campus dated 4 April 2016; and
·Mr Tahir Mehmood’s statement dated 15 October 2018 attesting to his attendance at the American International College on 1 April 2016 to have the applicant’s documentation verified as authentic on her behalf.
For these 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 Regulations. Briefly, they are:
·the correct information
·the content of the genuine document (if any)
·whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·the circumstances in which the non-compliance occurred
·the present circumstances of the visa holder
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·any other instances of non-compliance by the visa holder known to the Minister
·the time that has elapsed since the non-compliance
·any breaches of the law since the non-compliance and the seriousness of those breaches
·any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
the correct information
On the evidence before the Tribunal, the correct information is that the primary applicant did not study for and successfully complete a Master of Computer Sciences at the American International College in Lahore between 1998 and 2000 as she has claimed. The correct information furthermore is that the primary applicant did not work as a Software Engineer and then as a Senior Software Engineer for Lycetech between 1998 and 2009 as she has claimed.
The Tribunal is of the firm opinion that the primary applicant’s Computer Sciences qualifications and her employment for nine years have each been fabricated in order to meet the requirements at the time for the grant of a Skilled (subclass 175) Visa on 7 November 2011. The Tribunal notes that the occupation “Computing Professionals – Software Designer” was listed at the time of application on the Skilled Occupation List for a Skilled (subclass 175 visa). The Tribunal notes that the primary applicant’s occupation as a medical doctor and as a “General Practitioner” was not on the approved SOL at the time of application (only being added subsequently).
The Tribunal also, as discussed at the hearing of 10 December 2020, considered it curious that the primary applicant failed to include her medical qualifications on her application forms at the time of application. The Tribunal is satisfied that the primary applicant is a fully qualified and skilled medical practitioner and finds it concerning that the qualifications were not conceded on her application. The Tribunal considers the failure to include such information speaks to an attempt to mislead the delegate as to the primary applicant’s genuine educational and occupational background.
The Tribunal is of the view that the provision of the correct and genuine information in relation to the primary applicant’s educational qualifications and past employment background is critical in the assessment of a visa application. The Tribunal considers the primary applicant was granted her Skilled (subclass 175) visa on the provision of a wide range of incorrect information and bogus documentation. The grant of this visa allowed the applicant to be granted her own visa as a dependent applicant. The Tribunal furthermore considers the provision of such false information and documentation impacts adversely upon the credibility of the primary applicant. The applicant was granted his Skilled (subclass 175) visa as a dependent on the basis of this false information and documentation. The Tribunal weights this consideration in favour of cancelling the applicant’s visa.
the content of the genuine document (if any)
On the evidence before the Tribunal, the primary applicant in her Skilled (subclass 175) visa application submitted a number of documents, that the Tribunal is satisfied, are bogus documents within the meaning of s.5(1)(b) of the Act.
The Tribunal considers the documentation submitted by the primary applicant purportedly from the American International College of a Master of Computer Sciences degree in her name is false or a counterfeit document, as is the ‘verification letter’ of the qualification from the ‘New Garden Town’ campus of the American International College dated 4 April 2016.
The Tribunal, whilst accepting the company Lycetech did exist in some fashion, considers the correspondence that has been submitted from Lycetech officers claiming the primary applicant worked as a Software Engineer from 1998 and then in 2000, after graduating with the Master of Computer Sciences degree at the AIC, was promoted to Senior Software Engineer is a deliberate falsity.
The Tribunal considers the affidavit of Mr Tahir Mehmood dated 15 October 2018 claiming to have visited the AIC to have the primary applicant’s qualification verified on 1 April 2016 is a further bogus document.
The Tribunal has considered the primary applicant’s explanation concerning the discrepancies in the relevant documentation submitted by the primary applicant as summarised elsewhere in this decision record, but is not satisfied these explanations adequately explain what the Tribunal considers are significant falsities in the documents submitted as part of the explanation and subsequently as part of the review process. The Tribunal has also taken into account the pronouncements concerning Lycetech by the applicant as well as the applicant’s sister in law Ms Umer at the hearing of 21 January 2021.
The Tribunal is of the firm opinion that the primary applicant was granted the Skilled (subclass 175) visa based on the bogus documents that were submitted as part of the application, in particular the Master of Computer Science degree from the AIC and the Lycetech correspondence that claims the primary applicant worked for the company for almost as a decade as a Software Engineer and as a Senior Software Engineer.
The Tribunal considers the primary applicant was granted her Skilled (subclass 175) visa after the provision of a wide range of bogus documentation. The Tribunal furthermore considers the provision of such false information and documentation impacts adversely upon the credibility of the primary applicant.
The applicant was granted his Skilled (subclass 175) visa as a dependent on the basis of this false information and documentation. The Tribunal weights this consideration in favour of cancelling the applicant’s visa.
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 Tribunal notes that the grant of a Skilled (subclass 175) visa is reliant upon the primary applicant satisfying a range of criteria pertaining to both their previous employment in a “skilled occupation” (as defined in Part 1, Division 1.2 of the Regulations) and their ability to meet a qualifying score whereby an applicant is assessed and provided a score based on points for particular attributes. These attributes include relevant academic qualifications and work experience.
The Tribunal notes that Regulation 175.211(a) states that an applicant must have been employed in a skilled occupation ‘for at least 12 months in the period of 24 months ending immediately before the application was made’ whilst Regulation 175.221 requires that the applicant has a qualifying score ‘based on the prescribed number of points for particular attributes’.
The Tribunal is satisfied that as part of her application, the primary applicant Dr Umer provided a range of incorrect information and bogus documentation that was directly relevant to the criteria for the grant of the Skilled (subclass 175) visa. The claimed Master of Computer Sciences qualification from the AIC as well as the claimed nine years of experience working as a Software Engineer and Senior Software Engineer in the Lycetech correspondence was of direct relevance to the grant of the Skilled (subclass 175) visa and the primary applicant meeting the relevant criteria, including the points required to meet the relevant qualifying score.
The Tribunal is satisfied that the provision of both incorrect information and bogus documentation pertaining to the primary applicant’s educational qualifications and work experience as previously summarised directly led to the applicant being granted a Skilled (subclass 175) visa. The Tribunal is satisfied that failing to provide this information and documentation would have precipitated a situation whereby the primary applicant did not meet the qualifying scores and subsequently did not meet the criteria for the grant of the visa. The evidence before the Tribunal suggests that without the submission of this incorrect information and bogus documentation, the Tribunal would not have met Regulations 175.211 and 175.221 and their application would have been refused by the delegate. The applicant was granted his Skilled (subclass 175) visa as a dependent on the basis of this incorrect information and bogus documentation. The Tribunal weights this consideration in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
The primary applicant on 10 December 2020 discussed the circumstances of lodging her Skilled (subclass 175) visa application on 27 January 2009. She stated that she and her family initially arrived in Australia in fact on a subclass 457 visa in October 2011. She stated that she and her family could have remained on a 457 visa. The primary applicant maintained that all the documentation she submitted as part of her Skilled (subclass 175) visa was correct and the verification conclusions reached by the delegate were incorrect.
The primary applicant has continued to maintain that all the information she submitted as part of her Skilled (subclass 175) visa application: including her claimed qualifications of a Master of Computer Sciences at AIC and almost a decade working as a software engineer are entirely correct. The applicant at his own hearing of 21 January 2021 similarly asserted that all documentation and information that had been provided as part of the Skilled (subclass 175) visa application by his wife, the primary applicant was correct. The primary applicant maintains the documentation subsequently provided to the delegate and the Tribunal verifying such documentation is similarly correct and genuine. The Tribunal recognises the firm advocacy of the primary applicant and the applicant on this matter. Nevertheless, the Tribunal does not agree and is not satisfied that the information the primary applicant provided was correct. The Tribunal is of the opinion that bogus documentation has been submitted as part of the application and review process. The Tribunal is of the opinion that false information and bogus documentation was supplied by the primary applicant to the Department in order to meet the requirements for a “Computing Professionals – Software Designer” occupation that was on the Skilled Occupation List at the time of application. At the hearing of 10 December 2020 the Tribunal noted that the primary applicant had failed to include her medical qualifications on her application. She replied that she did not consider such information to be relevant. The Tribunal is not satisfied with this answer and considers the more likely explanation for the omission of such information was to not draw the delegate’s attention to the primary applicant’s significant qualifications – and the likelihood she would pursue employment opportunities in other areas of employ that were not included on the Skilled Occupation List.
The Tribunal furthermore notes that the primary applicant has not worked in the occupation of a “Computing Professional – Software Designer” at any time since arriving in Australia. At the hearing of 10 December 2020 the primary applicant claimed this was because she was rejected for having no local experience and her only possible option was to then pursue registration in Australia as a medical practitioner in order to earn an income and survive. Whilst the Tribunal accepts that obtaining employment in her nominated occupation may have been at least initially a challenge, the lack of any evidence of genuine efforts that were undertaken to acquire employment locally in this field speaks to the Tribunal’s concerns as to the authenticity of the primary applicant’s claimed Masters-level qualification and her extensive claimed experience.
The Tribunal finds that the circumstances in which the primary applicant was granted her visa was through the provision of both incorrect information and bogus documentation, provision of such information that provided the grounds for the cancellation of the applicant’s visa. The applicant was granted his Skilled (subclass 175) visa as a dependent on the basis of this incorrect information and bogus documentation. The Tribunal weights this consideration in favour of cancelling the applicant’s visa.
The present circumstances of the visa holder
At the time of decision the applicant and his family have been living in Australia for a decade. The applicant and his family reside on the Central Coast. The applicant’s two daughters have studied together at Central Coast Adventist School since arriving in Australia, with the younger Miss Safa in Year 11 and the older Miss Marwa having successfully completed the HSC and having gained enrolment in a Bachelor degree course at the University of Newcastle. The applicant and his wife own their own home and are heavily involved in their local community. The applicant’s wife, the primary applicant, is a well-respected local General Practitioner working in a medical centre in a low-income area of significant need.
The Tribunal recognises the applicant has made regular charity donations and appears to have a genuine interest in his local community.
In response to the Tribunal’s questions at his hearing, the applicant stated since 2018 he was looking after the management and accounts of his wife Dr Umer’s medical practice whilst also spending considerable time caring for their two daughters. He said he had ceased working for Lycetech’s Australian operations – which owned and operated several Seven Eleven stores – in 2013 so his wife could focus on her career as a doctor. He said he took on some part-time work in the evening in order to allow himself to be free during the day to care for his daughters.
The applicant stated he and the family had discussed cancellation of their visas and the potential of the family returning to Pakistan. He discussed his concerns for his daughters who he viewed would find it difficult to deal with the ways females can be treated there. The Tribunal accepts that the applicant plays an active and significant role in caring for his two daughters, particularly given the long hours of their mother, the primary visa applicant as a full-time medical practitioner in regional NSW which is facing significant shortages and hardship when it comes to the availability of medical professionals.
The Tribunal notes the needs of the applicant’s two daughters who provided oral testimony at their own hearings. The evidence suggests the applicant’s daughters are well integrated into Australian culture and each is at an important point of their lives as they make her way through her penultimate year of secondary schooling and the first year of university respectively. The applicant’s daughters have a clear dependency on their parents, including the applicant who is home with their daughters regularly and in some ways appears to have primary responsibility for maintaining the family household. The Tribunal has considered the applicant’s employment, family and social ties in Australia and her present circumstances. The Tribunal weighs this consideration heavily against cancelling the visa.
The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act
After receiving the NOICC, the Tribunal notes that the primary applicant provided further documentary evidence from the Manager of Lycetech Mr Ghulum Abbas and an affidavit from Mr Tamir Mehmood attesting to the genuineness of the primary applicant’s claims to have worked in the software engineer sector for almost a decade as well as successfully completed a Master of Computer Sciences at AIC. The Tribunal considers these documents contain further false or incorrect information, merely attempting to confirm the authenticity of evidence the Tribunal firmly considers to be non-genuine. The primary applicant and the applicant have continued to claim at the hearing and in writing the genuineness of the applicant’s claims in relation to this information that was found to be false and the documentation found to be bogus.
The Tribunal is disappointed this is the case. The Tribunal is satisfied that the relevant documentation and evidence that was submitted by the primary applicant in relation to her qualifications and employment is demonstrably false. The Tribunal considers the primary applicant’s - and the applicant’s - continued assertion of the genuineness of this information – and submitting further ‘evidence’ in support of this information – demonstrates a level of disdain and disregard towards Australia’s migration law. The Tribunal therefore finds the applicant and the primary applicant’s continued willingness to claim the genuineness of such information which the Tribunal considers to be clearly incorrect or bogus, of significant concern.
Given these circumstances, the Tribunal weights this consideration in favour of cancelling the applicant’s visa.
Any other instances of non-compliance by the visa holder known to the Minister
On the evidence before the Tribunal, the primary applicant has provided false and misleading information as part of her visa application through the documentation and responses pertaining to her claimed qualifications and employment experience. The Tribunal considers this evidence is relevant to its assessment whether there was an element of fraud or deception by the applicant which has attracted the operation of PIC4020(1): Trivedi v MIBP [2014] FCAFC 42. The Tribunal considers the provision of false and misleading information to the Department in the primary applicant’s Skilled (subclass 175) visa involved an element of fraud or deception on the part of the primary applicant.
The Tribunal’s findings and reasons about whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority of a Medical Officer of the Commonwealth therefore are as follows. The Tribunal relevantly notes Schedule 4 of Public Interest Criteria 4020, which in part highlights:
·A ‘bogus document’, as defined in s.5(1), i.e. a document that the Tribunal reasonably suspects is a document that:
·purports to have been, but was not, issued in respect of the person, or
·is counterfeit or has been altered by a person who does not have authority to do so, or was obtained because of a false or misleading statement, whether or not made knowingly.
And/or
·‘information that is false or misleading in a material particular; as defined in PIC 4020(5), i.e. information that is:
·false or misleading at the time it is given, and
·relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
·in relation to the visa application or a visa held in the 12 months before the visa application was made.
There is evidence before the Tribunal that the primary applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’ as defined in s.5(1)(b) and/or information that is false or misleading in a material particular’ as defined in PIC 4020(5). This evidence includes:
·The Certificate of Qualification from the American International College for the applicant’s Master of Computer Sciences (D1, Folio. 18) studies between 1998 and 2000.
·The correspondence from Mr Asdim Imran claiming that the applicant worked for Lycetech as a Software Engineer from February 1998 before being promoted to the position of Senior Software Engineer, a position he claims that she held from 2000 till 2009.
There is evidence before the Tribunal that the primary applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth information that is false or misleading in a material particular’ as defined in PIC 4020(5). The Tribunal thus finds that the primary applicant thus gave ‘information that is false or misleading in a material particular’ to the Department as defined in PIC4020(5). This information, the Tribunal considers, is false or misleading in a material particular because this information – which claims the primary applicant holds a Master of Computer Sciences qualification and worked as a software design engineer for almost a decade – is central in the assessment of the claim of the primary applicant that they met the criteria for qualifications and employment experience for the grant of a Skilled (Subclass 175) visa as required by the Regulations. The information pertaining to the primary applicant’s qualifications and experience would have been relevant to the assessment of whether the primary applicant does in fact meet the criteria for the grant of the visa as required by the Regulations. Therefore, the visa applicant does not meet PIC 4020(1).
The Tribunal furthermore notes the primary applicant’s attempts to continue to maintain the false information through the subsequent submission of further evidence the Tribunal considers false such as:
·the correspondence from the Manager of Lycetech Mr Ghulam Abbas dated 17 October 2018 stating the applicant worked as a Software Engineer from 1998 and was promoted to Senior Software Engineer in 2000 after successfully completing her Master in Computer Sciences at the American International College in Lahore;
·The “verification letter” from the American International College’s New Garden Town campus dated 4 April 2016; and
·Mr Tahir Mehmood’s statement dated 15 October 2018 attesting to his attendance at the American International College on 1 April 2016 to have the applicant’s documentation verified as authentic on her behalf.
100. The Tribunal considers this information to be incorrect and this documentation to be bogus. The applicant was granted his Skilled (subclass 175) visa as a dependent on the basis of this false information and documentation. The Tribunal weights this consideration in favour of cancelling the applicant’s visa.
101. The Tribunal furthermore notes that further information pertaining to the applicant himself was discussed with the applicant at his hearing of 21 January 2021. This information had been put to him by the Tribunal under s.359A on 11 December 2020. This information pertained to the following particulars from his Departmental file:
·Fraudulent information pertaining to Lycetech Australia, the business of his wife’s family, was brought to the attention of the Department who barred Lycetech Australia for 12 months from August 2016 for failing to comply with their sponsorship obligations pursuant to Regulation 2.86, in relation to another 457 visa holder (also a family member) who was found not to be working in the nominated occupation for which the visa was granted.
·His qualifications from the American International College of a Bachelor of Business Administration and a Master of Business Administration are bogus documents and qualifications.
·The American International College was blacklisted on 28 March 2006 and added to the list of illegal/fake institutions in the Punjab.
·That his claimed employment as Managing Director of Saudi Energies from 2007 is false as Departmental investigations discovered there was no MD, the business had 80 staff. The HR Manager had allegedly never heard of the applicant before stating that the applicant was a friend of the CEO’s but never have worked there.
·That the applicant’s claimed employment at Shah Farms was false and departmental integrity checks found that the Shah Farms they were able to contact had never heard of him.
·That his claim and supporting documentation that you were appointed Managing Director of Lycetech on 4 May 2011 and the responsibilities he purported to undertake may be false.
102. The applicant responded in writing on 21 December 2020 noting the concerns expressed by the Tribunal and confirming that all information and documents that he had provided in the visa applications are correct and genuine to the best of his knowledge and belief. He stated he would endeavour to provide further supportive evidence.
103. At the hearing of 21 January 2021 the applicant stated in relation to the Lycetech information, that he had worked as Managing Director between 2011 and 2013 in Australia. He stated he had been involved in looking after the company’s administration, financial statements and company planning, a time Lycetech owned and managed three separate Seven Eleven stores with between 25 and 35 employees. He stated salaries and payroll were managed centrally by Seven-Eleven. His work for Lycetech was supported by his sister in law, Ms Maria Umer, who until recently was a long-time director of the company. The Tribunal accepts that the applicant worked for Lycetech in some capacity between 2011 and 2013. In relation to the barring of Lycetech from sponsoring for 12 months in 2016 for someone not working in their nominated occupation, this matter was conceded at the hearing. The claim was made that Lycetech had no further adverse interactions with the Department. There is no evidence to suggest that this is not the case.
104. In relation to the applicant’s claimed AIC qualifications of a Bachelor and Master of Business Administration, the Tribunal does not accept the claim that these are genuine qualifications, as asserted by the applicant and witnesses. The applicant at the hearing spoke o the establishment in Pakistan of a Higher Education Commission that led to a crackdown on false and/or illegal education institutions with reportedly over 100 being closed down. The applicant stated he had no evidence of his qualifications beyond the misspelt certificates submitted to the Tribunal. The Tribunal is not satisfied with this explanation. The Tribunal is of the firm view that being granted a misspelt Bachelor of BUSSINESS (sic) followed by some years later a similarly misspelt Masters of BUSSINESS (sic) indicates the testamurs were in all likelihood produced at the same time. The Tribunal considers the evidence firmly illustrates the lack of genuineness in the applicant’s claimed Bachelor and Masters-level higher education qualifications from AIC.
105. In relation to the applicant’s alleged previous employment as Managing Director of Saudi Energies and at Shah Farms, the Tribunal accepts that attempts to verify the latter were not optimal, and there remains challenges to verify or disprove any of the claims in relation to the applicant’s claimed employment at Shah Farms. In relation to Saudi Energies, the applicant stated that when he was at the business it was a start-up with only ten to twelve employees. The applicant pointed out documentation from the Securities and Exchange Commission of Pakistan that confirms the applicant was a Director of the business during the time claimed. The Tribunal notes the vehement claims of the applicant concerning his previous employment at Saudi Energies but considers the lack of any further corroborative evidence concerning. The Tribunal notes that the HR Manager at Saudi Energies had never heard of the applicant before contacting his superior who stated the applicant was the CEO’s friend but had never worked there. The Tribunal has noted the applicant’s claims concerning the significant change in personnel and ownership since his claimed time at Saudi Energies, nevertheless it considers the role of a former ‘Managing Director’ would have been a high-profile and well recognised role by, at the very least, the Human Resources Manager. The Tribunal retains considerable doubts as to the veracity of the claims of the applicant pertaining his claimed employment at Saudi Energies and cannot on the evidence before it accept the genuineness of those claims. The Tribunal considers the supply of documentation pertaining to Saudi Energies as well as the applicant’s documentary evidence presented to the delegate in relation to his Bachelor and Masters qualifications from AIC suggest further instances of non-compliance on the part of the applicant.
106. The Tribunal has considered any other instances of non-compliance by the visa holder know to the Minister. The Tribunal weighs the matter in favour of cancelling the visa.
The time that has elapsed since the non-compliance
107. The instances of non-compliance occurred on 27 January 2009, over a dozen years ago The applicant and his family have resided in Australia since 1 October 2011 and over a decade have understandably developed considerable ties to Australia on a social, familial and economic basis. The applicant on the evidence before the Tribunal is well integrated into local life as is his wife and daughters. Given these factors, the Tribunal weighs this consideration against cancelling the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
108. At the hearing the applicant said he had not been in breach of the law since the non-compliance. There is no evidence before the Tribunal to the contrary. Given this, the Tribunal weighs this consideration against cancelling the applicant’s visa.
Any contribution made by the holder to the community
109. The Tribunal notes that the applicant has been both in employment as well as raising two young daughters whilst his wife, the primary applicant, built her career as a medical practitioner in an area of significant need. The applicant also, from the evidence before the Tribunal, contributes to local charity. The Tribunal weighs this consideration concerning the contribution of the applicant to the community against cancelling the visa.
Whether there would be consequential cancellations under s.140
110. The primary applicant confirmed at her own hearing there were no dependent visa holders as part of her visa. The applicant, his wife the primary applicant and their two daughters each held individual s.155 visas in their own right. The Tribunal therefore finds that there will be no consequential cancellations under s. 140 if the visa is cancelled. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
111. The applicant has not applied for refugee status or invoked Australia’s protection obligations.
112. The primary applicant in her submissions both oral and written (which the Tribunal has taken as submissions on behalf of the applicant Mr Shah) however raised a range of concerns pertaining to their two daughters who are 17 and 16 years of age at the time of decision. The best interests of the primary applicant’s two daughters as children has been a consideration of the Tribunal.
113. The Tribunal notes there is considerable conjecture about best interests of the child (BIOC) and whether it is a primary consideration in visa cancellations. Ministerial Direction No 63, which applies to cancellation of Bridging E Visas where the grounds in r. 2.43(1)(p) or (q) (which include criminal charges), directs decision-makers to treat BIOC as a primary consideration. For other Part 5 and 7 cancellations, there is no such Direction in force, but the Department’s Visa Cancellation Instructions instruct delegates to treat BIOC as a primary consideration.
114. It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28]
115. At the hearing the Tribunal put the applicant on notice that it would be treating the best interests of the child as a primary consideration in its deliberations in this review. The Tribunal acknowledges the integrity of the family unit is an important consideration in any cancellation of a permanent visa.
116. The applicant discussed his concerns about any possibility of his daughters returning to Pakistan after such an extended period of time. He stated that in their whole lives they had never been apart from himself and their mother Dr Umer, the primary applicant, for more than three or four days. He stated that their daughters had a strong dependence on him and his wife.
117. The Tribunal notes the concerns expressed by the primary applicant Dr Umer in her own hearing in December 2020 where she discussed her concerns for their daughters if they returned to Pakistan. She stated her ongoing priority was the safety of her daughters including the applicant. She expressed considerable concern about their potential return to Pakistan after spending most of their lives in Australia where they had been educated, had their friends, and were entirely assimilated into everyday Australian society. She spoke about a brief visit the family made to Pakistan in 2016 where the girls were shocked and confronted by the expectations they faced as young women and the pressure they received concerning matters such as their Western-style of dress.
118. The Tribunal notes the applicant’s two daughters are children who have spent most of their lives in Australia, have been educated in Australia, and both claim they want to contribute to the nation in their future lives, the younger Miss Safa as a veterinary surgeon and Miss Marwa as a doctor. The evidence suggests both are excellent students and the applicant’s sister Miss Marwa has been offered a range of tertiary placements at Australian universities in 2021.
119. The Tribunal considers there would be considerable hardship upon the applicant’s two daughters applicant, either if his visa was cancelled and they remained in Australia whilst he departed for Pakistan; or if his visa was cancelled and the girls returned with him and the primary applicant Dr Shah to Pakistan after many years away. If his visa is cancelled and his daughters return to Pakistan, they will be compelled to walk away from their education in Australia at a critical time. The applicant’s daughters furthermore will have to reintegrate into Pakistani culture and society at a challenging time. They are entirely integrated into local Australian culture and society, having spent her formative years living on the Central Coast and for a year in Queensland whilst her mother the primary applicant was completing a medical internship. The Tribunal is satisfied that reintegration into Pakistani society, as a young educated women who has spent most of her life in a Western liberal culture, may cause the applicant a significant degree of dislocation and hardship.
120. The Tribunal furthermore notes country information sourced from the DFAT Country Information Report, Pakistan, 20 February 2019, that states that women and girls in Pakistan are subject to rights based violations such as, but not limited to, gender based violence including (so called) honour killings and acid attacks, cruel, inhumane and degrading treatment by traditional justice systems called jirgas….forced marriage, kidnapping and bonded labour. DFAT also assesses that women and girls in Pakistan face a high risk of societal discrimination and violence particularly domestic violence, because of their sex. Women who are economically disadvantaged, culturally or geographically isolated are particularly vulnerable, and lack access to support services.
121. The Tribunal has placed significant weight on the future of the applicant’s daughters if they were to return to Pakistan, where educational opportunities would be limited and they may face, as articulated by Dr Umer in her own testimony at her daughter’s hearings in February 2021, the risk of increased danger and violence. The Tribunal accepts the applicant’s submission that removal of the applicant to Pakistan would be devastating for the girls developmentally, culturally and personally.
122. The Tribunal has considered the best interests of the applicant’s two daughters as a primary consideration. The Tribunal weighs this factor heavily against cancelling the applicant’s visa.
Mandatory legal consequences of a decision to cancel the visa
123. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Act if she does not voluntarily depart Australia. The Tribunal has considered that indefinite detention is a possibility if his visa was to be cancelled. The applicant will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. The applicant may also be precluded from working or studying and he may be removed to Immigration Detention upon cancellation unless granted another visa.
124. The Tribunal considers these outcomes are part of the process of events when a visa is cancelled. The Tribunal does not consider such consequences to be either unreasonable or unusual. Such processes are part of ensuring the ongoing integrity of the Australian migration system. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa
Conclusion
125. The Tribunal considers on the evidence that the grounds clearly exist to cancel the applicant’s visa: the Tribunal considers there has been clear non-compliance by the primary applicant with s.101 and s.103 of the Act. A range of false information and bogus documentation were supplied by the primary applicant as part of the application and, regrettably, subsequently. The Tribunal notes that the primary applicant continues to deny these documents and this information is false and claims the genuineness of her Master of Computer Sciences qualification, her studies at the AIC, as well as work as a software engineer for almost a decade. The Tribunal has considered the evidence and submissions made but remains entirely unsatisfied as to the authenticity of these claims and this documentation. The Tribunal is disappointed that the primary applicant, a well-respected and admired medical practitioner in her local community, has continued to make these assertions. The primary applicant’s non-compliance obviously impacts adversely upon her dependent applicants such as her husband, the applicant Mr Shah.
126. The Tribunal furthermore does not consider the applicant Mr Shah to be a reliable witness. His submission that evidence pertaining to his own education and previous employment record in Pakistan – particularly his misspelt Bachelor and Master of BUSSINESS (sic) qualifications from the AIC is correct and genuine causes the Tribunal to question the credibility of his evidence. The Tribunal considered his explanations as to his previous claimed employment at Saudi Energies to be vague and disingenuous. The evidence of his holding such a senior role, admittedly some years ago, is tenuous. The Tribunal is concerned that the applicant and the primary applicant have, in its opinion, been economical with the truth in a wide range of their testimony pertaining to their studies, qualifications and previous employment in Pakistan.
127. The Tribunal nevertheless considers that, in its totality, the weighing up of the various considerations means that the applicant’s visa should nevertheless not be cancelled. The Tribunal considers the primary applicant’s provision of false information and bogus documentation as part of her application over 12 years ago – and the applicant’s own dubious academic and employment claims – are ultimately outweighed by the considerations before the Tribunal, in particular, the best interests of the child that the Tribunal has treated as a primary consideration.
128. The Tribunal notes that the applicant has two daughters that are minors. They were five and eight years old respectively when they arrived in Australia. As discussed previously, both have spent most of their lives in Australia, were educated here at the Central Coast Adventist College, and are entirely integrated into everyday Australian society. Both are at an important, formative point of their lives: the Tribunal sees little purpose or utility in uprooting them from their lives in Australia. They have always lived with their parents and there is clearly a strong dependency relationship between the parties.
129. At the hearing on 24 February 2021 for the two girls, the primary applicant Dr Umer spoke of her grave concerns for the daughters of the applicant and herself if they were to return to Pakistan. She spoke of the psychological impact of leaving their Australian lifestyle and education for Pakistan. Dr Umer said their eldest daughter Miss Marwa, a high achiever in education and learning, had struggled with the constant threat of being returned offshore after spending most of her life in Australia. Dr Umer particularly impressed upon the Tribunal her concerns for the safety of the applicant and her sister in Pakistan, particularly as young women who had spent the bulk of their lives in a Western liberal culture where safety and security were part of everyday life.
130. The Tribunal accepts that cancellation of the primary applicant’s visa would have a detrimental impact upon the best interests of the applicant, as obviously would the cancellation of his own visa. The Tribunal accepts it is in the best interests of the applicant’s family to remain together. Given the circumstances of the applicant’s current situation, the Tribunal does not consider the best interests of the applicant’s two daughters will be served by Miss Safa, Miss Marwa and their parents being returned to Pakistan. The Tribunal has treated the best interests of the child as a primary consideration and has given this consideration considerable and forceful weight in deciding the visa should not be cancelled.
131. The Tribunal furthermore notes that over 12 years have now elapsed since the application for a Skilled (subclass 175) visa was lodged by the primary applicant who had girls aged five and eight-years of age at the time. In the intervening period the older daughter has been educated in Australia, integrated into local culture and is about to commence her first year at university. The younger is in Year 11, has strong ambitions to be a veterinary surgeon and is playing softball for the local community and involved in animal welfare. Neither reads nor writes Urdu. The Tribunal asks the question, what good purpose would be served uprooting contributing members of the community (noting furthermore the applicant’s wife, Dr Umer is a well-respected local medical practitioner) who have lived here for such a significant period and returning them to Pakistan at this point in their lives. The Tribunal recognises the provision of incorrect information and bogus documentation by the primary applicant but, on balance, especially given the best interests of the child being weighed as a primary consideration, the Tribunal considers the applicant’s visa should not in such circumstances be cancelled.
132. 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 not be cancelled. Having said this, it goes without saying that any future applications made by the family in the future should and will come under greater and significant scrutiny.
decision
133. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Justin Owen
Senior MemberATTACHMENT – 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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