Shaukat (Migration)

[2020] AATA 6116

Shaukat (Migration) [2020] AATA 6116 (5 August 2020)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sarika Shaukat

CASE NUMBER:  1930595

DIBP REFERENCE(S):  BCC2019/3975585

MEMBER:John Cipolla

DATE OF DECISION:  5 August 2020

DATE CORRIGENDUM

SIGNED:17 November 2020

PLACE OF DECISION:  

AMENDMENT:  The following corrections are made to the decision:

On the cover page of the decision the ‘Date’ should read ‘5 August 2020’ and not ‘6 August 2020’.

John Cipolla
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sarika Shaukat

CASE NUMBER:  1930595

DIBP REFERENCE(S):  BCC2019/3975585

MEMBER:John Cipolla

DATE:6 August 2020  

PLACE OF DECISION:  Sydney 

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 5 August 2020 at 4:37pm

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 Skilled – Regional (Provisional) – incorrect answers and bogus document with visa application – details of relevant work experience in Pakistan – applicant’s partner has current visa application – former employer’s website inactive – duties of Dairy Technician – dairy farming practices in Pakistan – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109
Migration Regulations 1994, Schedule 2, cl 489.224

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The visa holder (hereinafter referred to as the applicant) applied for a Subclass 489 - Skilled - Regional (Provisional) visa on 21 February 2018 and the visa was granted on 4 September 2018. The delegate cancelled the visa on the basis that based on integrity checks undertaken by the Department the delegate formed the view that the applicant had provided incorrect answers on a visa application form and had thus not complied with s.101(b) of the Migration Act (‘the Act’), and that the applicant had provided bogus documents to an officer of the Department of Home Affairs and had not complied with s.103 of the Act.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. On 11 September 2019 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC). The delegate noted that as a result of integrity checks, the Departmental information suggested the applicant resided in Lahore prior to arriving in Australia. The evidence before the delegate indicated that supporting documentation submitted by the applicant in support of her meeting the relevant points test requirements, relevant to the grant of the visa were bogus, and the applicant had provided incorrect information to the Department. The delegate noted that the integrity checks indicated that the letters provided to the Department from the applicant as a part of their claims against 489.224, namely that she had worked at Pure Dairies in Lahore as a Dairy Technician and later as a Senior Dairy Technician were bogus. The delegate noted, from open source information, that the address on the letterhead of Pure Dairies indicated that the work site was located in a medium to high density population area and not on land that would allow for dairy production, as required in support of the applicant’s employment history. The delegate noted that the nearest Pure Dairies site which, based on open source information, would allow for small scale agricultural production was approximately 1250km from the Lahore office in Karachi, a 17 hour drive from Lahore. The delegate indicated that the Department had also performed checks on the employer contact information provided by the applicant and discovered that the claimed employer website does not exist and has never been valid, and that the employer phone number provided was actually the applicant’s personal mobile number as given in her regional sponsored visa application. This information was put to the applicant for comment in the NOICC, and the applicant was invited to comment on whether she agreed the ground for the cancellation of her visa existed, and whether or not her visa should be cancelled.

5. The applicant responded to the NOICC on 24 September 2019. The applicant clarified the address provided on the Pure Dairies letterhead and stated that the dairy site was actually situated in a nearby town, Khokar Pind, and that it is common practice in Asia to ‘round up’ lesser known addresses to those of larger settlements. She claimed that Khokar Pind is semi-rural and well suited to agriculture. Furthermore, the applicant claimed that she was unaware that the company website was not operational, and that after calling an old operations contact within the company the website is now online (which lists the companies physical address as Khokar Pind). The applicant apologised for providing the company contact phone number on her visa application, which she stated was an oversight, and suggested that dairy operations could be and were carried out in higher density areas of Pakistan, and provided a number of screenshots of dairy farms in Lahore and some agricultural test papers from the Pure Dairies site.

6. On 24 October 2019 the delegate assessed the information provided in response to the NOICC. They considered that no alternate letterheads had been provided to corroborate the different address but accepted that the claim of dairy operations centred in Khokar Pind could be considered plausible. The delegate stated that following a search of domain name registrations, it could be determined that the website was only created following the dispatch of the NOICC and that the website was most likely fabricated in response to the NOICC. The applicant’s claims concerning her mobile number were considered plausible by the delegate, however it was determined that the claim was somewhat undermined by the fact that this purported mistake was duplicated on the ‘Form 80’ provided to the Department. Lastly, having assessed claims that the dairy site in Lahore was situated in a semi-rural setting, the delegate discounted pictures on the basis that their authenticity could not be corroborated via document properties, and the site tests on the basis that document properties suggested that they were created following and in response to the dispatch of the NOICC and not in 2016 and 2017 as alleged. The delegate deemed that grounds for cancellation existed and proceeded to look at the discretionary factors pending a possible cancellation under s109 of the Act.

7. When looking at whether the correct information was proved to the Department, the delegate determined that Pure Dairies was not a legitimate company as claimed and that the applicant was therefore not employed as a Dairy Technician and/or Senior Dairy Technician and that significant weight must be given to this consideration in favour of cancellation of the visa.

8. The delegate indicated that as the employer and associated role did not exist, a number of documents provided to the department to support the visa application were clearly bogus and thus significant weight was given to this consideration in favour of cancellation.

9. When looking at whether the decision to grant the visa was based on incorrect information, the delegate referred to the bogus documents (including employment contract, promotion letter, experience certificate etc), and also the incorrect answers provided on the Subclass 489 visa application and found that if the correct information had been known at the time of decision the visa would not have been granted, therefore lending additional significant weight to this consideration in favour of cancellation of the visa.

10. With regard to the circumstances in which the noncompliance occurred, the delegate referred to the range of identified bogus documents provided to the Department and an absence of extenuating circumstances to explain the provision of these bogus documents, and placed significant weight on this consideration in favour of cancelling the applicant’s visa.

11. With regard the present circumstances of the applicant, the delegate noted that the applicant and her partner had married and that the applicant’s partner had a pending review before the Tribunal.  The delegate noted that they were both only temporary visa holders and both Pakistani nationals and it was unclear whether the applicant was complying with their requirement to work in a regional area. Despite this, the delegate took into consideration the financial and personal sacrifice made by the applicant, and ultimately some weight to this consideration against cancelling the visa. With regard to the subsequent behaviour of the applicant the delegate deemed it had been cooperative, no additional instances of non-compliance were known to the Department and some was given to these considerations in favour of the applicant. The delegate noted that 18 months had passed since the original non-compliance, and that no breaches of the law appear to have been committed by the applicant and some weight was given to the applicant with regard to these considerations in favour of not cancelling the visa.

12. With regard to any contribution made by the applicant to the community the delegate noted that it was not clear whether the applicant was employed or volunteered in any regional area and gave no weight to this consideration in favour of cancelling the visa. The delegate determined that there were no persons whose visas would be cancelled consequently, should cancellation occur, and that there were no international obligations that would be affected. Consequently, no weight was given to these considerations against cancellation.

13. In assessing mandatory legal consequences, the delegate noted the s189 detention and removal possibilities, and the application of s48 of the Migration Act and PIC 4013 which affecting the applicant and gave this consideration a little weight against cancelling the visa.

14. With regard to any other relevant matters, the delegate noted that the applicant’s partner presently had a case before the Tribunal to determine whether or not he was a valid secondary applicant on her 489 application, and that any cancellation would have a downstream effect on this review application and the cessation date of his Bridging A visa. Some weight was given to this consideration in favour of the applicant due to this factor. Ultimately it was determined that factors weighing in favour of the cancellation outweighed those against cancellation, and the visa was cancelled accordingly in a decision made on 24 October 2019.

15. The applicant appeared before the Tribunal via teleconferencing facilities on 29 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Omer Sharif the applicant’s husband.

16. At the outset of the review hearing the Tribunal explained that it was conducting a review of a decision of the Department to cancel the applicant’s Subclass 489 visa. 

17. The Tribunal noted that the applicant applied for a Subclass 489 skilled visa on 21 February 2018, a visa that was granted to her on 4 September 2018. 

18. The Tribunal noted that the applicant was sent a NOICC on 11 September 2019, identifying two grounds to cancel the applicant’s visa. The first identified ground was a breach of s.101 of the Migration Act due to the provision of incorrect information provided by the applicant in her visa application. The second was a breach of s.103 of the Migration Act due to the provision of bogus documents in support of the visa application. The Tribunal noted that in support of the application, the applicant needed to provide evidence that she met the points test for a skilled visa. In terms of points pertaining to the applicant’s relevant work experience the applicant advised that between October 2014 and December 2017 she worked for Pure Dairies in Pakistan as a Dairy Technician and from 1 January 2018 as a Senior Dairy Technician. The Tribunal noted that the applicant was awarded points based on this stated work experience.

19. The Department noted that a Departmental open investigation brought into question whether the applicant had in fact worked in those roles for this company. The investigation revealed that the letterhead provided by the applicant from Pure Dairies indicated the business was located at Old Bund Road Shahdara Town Lahore Pakistan, which was a high density residential area, not conducive to agricultural enterprise. The investigation also revealed a second address for Pure Dairies of Plot 364, UC Pipri, Muree Goth Bin Qasim Town, Karachi, Karachi City, Sindh Pakistan. The Departmental investigation indicated that this area also appeared to be a high density commercial/residential area not conducive to agricultural enterprise. The applicant’s personal address provided in the visa application was an address in Lahore, and the Department determined that it appeared implausible that the role claimed to be undertaken by the applicant at Pure Dairies would take place in Lahore. Further to this that it appeared implausible that the applicant would travel between Lahore and Karachi, a distance of 1250 km, or 17 hours by car. The Tribunal noted that the delegate concluded that the applicant’s employment letter of offer, her employment contracts, a letter pertaining to promotion, and a letter confirming the applicant’s employment and job responsibilities along with an experience certificate and payslips were all counterfeit, hence bogus documents. The Departmental delegate determined that the applicant had provided incorrect information as she had never worked at Pure Dairies in Pakistan.

20. The Tribunal noted that the applicant had provided evidence to the Department to refute the Departmental findings and provided evidence to the Tribunal at review to support the contention that she had in fact worked in these roles for Pure Dairies.

21. The applicant provided a statement to the Tribunal pertaining to the grounds in which her visa was cancelled and the unreliability of the evidence the Department relied upon.  The applicant noted as follows:

    In addressing the decision to cancel my visa the case officer relied on the letterhead of my former employer as highly subjective evidence, questioning the existence of the business. I have explained below further details in relation to this:-

    -The employer’s letterhead states an address of ‘Old Bund road, near Shahdara Town Lahore, Pakistan’. The notice to consider cancelation states this address is located in a built-up area and is the companies head office.

    -A basic site inspection could have confirmed that Old Bund Road is a major highway, several dairy farms populate the road as it travels through both built up and semi-rural settings.

    - The companies website states the business address as ‘Khokhar Pind’, Old Bund road, near Shahdara Town Lahore, Pakistan. ‘Khokhar Pind’ is a minor village several kilometres from Old Bund Road; as is common practice in Pakistan and throughout Asia, small villages are omitted from addresses in favour of better known or larger townships.

    - I declare that my former employers farm is in fact located at ‘Khokhar Pind’, Old Bund road, near Shahdara Town Lahore, Pakistan. I completed several years of employment at the above stated address.  The area is well suited to agriculture and is not overly built up, as a site inspection or search of Google satellite would support.

    -I declare the business is a well-established and legitimate business which independent enquires would support. I believe the case officer and Department failed to make independent enquires, including visiting the company website at clearly see the companies physical address as pinpointed on the satellite image of the site .

    -I reiterate again the letterhead/letter presented in support of my visa application was in no way bogus nor did it support the position that the business itself was bogus. I strongly refute the assertion that the Department made in relying on the letterhead as evidence the business was not genuine.

    The Departmental decision to cancel my visa also relied on the fact that my former employers website was inactive for period of time, to which I add:-

    During the course of my employment at Pure Diaries, I had little to no reason to visit the company’s website at url such I was not aware the website was nonoperational until I received a notice to consider cancelation of my visa.

    After receiving this information, I contacted a former colleague who is currently the farm coordinator of the business, he verified the original domain name purchase for the site. I understand the site may have been unresponsive at the time of the Departments investigations, however was ‘live’ shortly thereafter and continues to be so now. It is my sincere request that the Honourable Member is able to visit the site and make a determination on the legitimacy of the site and business. The site showcases the business profile, business address (where I was employed) and other elements of the business to support the business’s legitimacy.

    I also enclose herein as an annexure to this declaration a copy of the above referred domain name purchase and transcript between former employer and myself requesting these items. 

    The Departmental decision also raised questions regarding my former employers contact details to which I add:-

    During the completion of my visa application form I noted my former employers contact number as that of my own, which I declared was an oversight.

    I declared my contact number at the time during which I was employed by Pure Dairies was [phone].

    Further, it is my hope the Honourable Member does not make the assumption that because I provided my own number, the business does not exists; rather I request the member to either make independent enquiries to verify the companies contact number as can be found on the company’s website to support the legitimacy of the business’s operations.

    I finally wish to add some comments in relation to the practice of Dairy farming within Pakistan. I believe the case officer in the Departmental decision made incorrect and uninformed assumptions in relation to the practice of dairy farming; I believe they had no expert opinion or firsthand account of the size, structure or operation of the industry to have made such determinations. As a highly experienced and qualified diary technician I also refute the assessing officers’ claims that it is improbable to operate a dairy business in a semi-rural or built up area.

    Whilst my former employers address is in fact located in a semi-rural setting, I enclose in the annexure of this declaration a number of dairy farms which are located within built up areas in Pakistan. This supports my view that the case officer has drawn unreasonable conclusions and relied on assumptions.

    Unlike countries such as Australia, where dairy farming is carried out on broadscale acreages, throughout Asia or other land scarce parts of the world, dairy faming is carried out intensively in built up areas. Cattle are kept in feed lots and a mix of organic and other food is brought to such sites from external regions and fed to the cattle intensively illuminating the need for broadscale acreages.

    I have included in the annexure of this statement, several photographs of the farm at which I worked, illustrating the above described and contradicting the conclusion made by the case officer in the decision to cancel my visa. 

    I declare that I in no way provided false, bogus or misleading documentation or information in support of my visa application. I also do not believe an address on my employers’ letterhead should allow such an inference to be made. I am of strong character, am honest and hardworking. I believe a physical inspection of my former employers’ website and actual place of business would have confirmed the legitimacy of the evidence I relied upon in my visa application and should have removed nay doubt to the legitimacy of my claims and subsequent visa approval.

1. The applicant also provided a soil test report conducted by her on 22 January 2016. The applicant also provided a milk test reports undertaken by her on the 25 and 27 of March 2017. The applicant also provided copies of Google maps pertaining to dairy farms in which the applicant worked whilst employed by Pure Dairies. The applicant also provided website links pertaining to Pure Dairies.

2. At the review hearing the applicant advised that she was born in Pakistan on 17 February 1988. The applicant advised that she completed high school and went on to complete tertiary studies namely a Bachelor of Humanities majoring in gender studies, a 4 year degree. The Tribunal questioned the applicant about her work history upon completion of her studies and she advised that she worked for six months as a Technical Officer at a dairy called Rehina Dairy in Rawal Pindi.

3. The Tribunal asked the applicant whether it was common for a woman to work in a dairy in the agricultural industry in Pakistan. The applicant advised that it was common for women to be involved in agriculture in Pakistan and she advised that there was an agricultural university located in Rawal Pindi.

4. The Tribunal asked the applicant why she had worked as a Dairy Technician, given that she had undertaken gender studies at university. The applicant stated that her father had worked for the United Nations and that she had maintained aspirations to work at the United Nations with her father.

5. The applicant stated that prior to this goal being realised, her father suffered a stroke when she was in her first semester of university, she advised that without a contact it was difficult to obtain positions in the United Nations and that she began to look at other options. The applicant stated whilst she was at university she saw an advertised position for a Technical Officer in a dairy and she applied for the position and was successful in her application. The applicant stated that this job provided a source of supplementary income to her family, after her father had suffered a stroke and was unable to work.  The applicant advised that it was this related work experience that enabled her to obtain the position of Dairy Technician with Pure Dairies.

6. The Tribunal asked the applicant to outline what she did in the role of Dairy Technician.

7. The applicant stated that she was involved in a range of agricultural work, such as working with livestock, advice around farming practices, reseeding crops, testing of soil, testing of livestock food, how to increase productivity yield, how to improve the quality of milk and the quality of livestock. The applicant stated that she also had to become adept at advising about fertilisers and food products for animals.

8. The Tribunal asked the applicant when she arrived in Australia and the applicant advised on 25 October 2018. The Tribunal noted that the Skilled visa had been granted to the applicant to work in Australia in a regional location as an Agricultural Technician. The Tribunal asked the applicant what work she undertook. The applicant stated that she and her now husband, who was a long-term friend from Pakistan, moved to South Australia to look for work. The applicant stated that she made a substantial effort to find work in South Australia as an Agricultural Technician without success. The applicant advised that she was told that if she could not find work in this field, she could obtain work in another field as long as she undertook work in regional Australia. The applicant advised that she had never worked as an Agricultural Technician in Australia.

9. The Tribunal asked the applicant about the development of her relationship with her now husband in Australia. The applicant stated that when she arrived in Australia her husband had been in Australia for about four years, as the holder of a Student visa. She advised that her husband had worked within the parameters of his Student visa in a number of petrol stations. The applicant stated that after rekindling a relationship with her husband in Australia, that he proposed to her in late 2018 and they were married in early 2019.

10. The Tribunal asked the applicant what her understanding was of a Subclass 489 visa.  The applicant advised that the visa required the holder to work in a regional area of Australia. The applicant stated that she had only lived in regional areas, first in South Australia, and now in Queensland, and that she was currently residing in Hervey Bay in Queensland, the postcode of which, constitutes a regional area. The applicant advised that she had not been able to obtain work as an Agricultural Technician. The Tribunal asked the applicant what she did to attempt to find such work, and the applicant stated that she accessed online advertisements, newspapers, and that she lodged applications, but did not obtain an interview for a position.

11. The Tribunal asked the applicant when she commenced working for Pure Dairies in Pakistan.  The applicant stated on 1 September 2012 and that she ceased working for them in May 2018. The Tribunal made reference to the anomalies in the business letterhead for Pure Dairies indicating that the business appeared to be located in an urban area, not conducive to agricultural pursuits. The applicant explained that the Old Bund Road was a major highway in Pakistan. She advised there were several farms located along this highway. The applicant stated that the concept of farming in Pakistan is different to that experienced in Australia. She advised that because of conditions in Pakistan that cattle were kept on small leases and that Pure Dairies operated a number of farms. The Tribunal asked the applicant whether she paid tax in Pakistan while she worked for Pure Dairies.  The applicant confirmed that she did pay tax. The Tribunal asked if it was to make enquiries of the relevant authorities in Pakistan, pertaining to the applicant’s payment of income tax, whether this would be confirmed, and the applicant advised that it would confirm her employment at Pure Dairies.

12. The Tribunal asked the applicant what evidence she wished to rely upon to corroborate the fact that she worked at Pure Dairies.  The applicant stated that she was relying on submissions made to the Department and submissions provided to the Tribunal at review. The applicant advised the Tribunal that it could check the businesses website and also evidence pertaining to the existence of the business on Google Maps and Google Earth images.

13. The Tribunal noted that the applicant and her husband married in January 2019 and the applicant confirmed this. The Tribunal asked the applicant how she and her husband were surviving financially in Australia. The applicant advised that she was granted work rights on 17 February 2020 and that she currently worked as a manager for a petrol station in Hervey Bay.  The applicant advised that her husband managed another petrol station in Hervey Bay. She advised that both petrol stations were owned by the same proprietor.

14. The Tribunal took evidence from the applicant’s husband Mr Omer Sharif.  The witness advised that he first came to Australia on 30 January 2014 as the holder of a Student visa. The witness stated that he commenced a Master of Business Administration in Sydney, but he only completed one semester of this course. The witness then transferred to Queensland where he completed courses in business administration, accounting and a Certificate III in Automotive Engineering.  The applicant stated that his Student visa came to an end on 18 March 2019. He advised that he and the applicant married on 3 January 2019. The witness advised that he had known the applicant since 2009 and had been in regular contact with her prior to her arrival in Australia. He advised that a relationship recommenced with the applicant in Australia. The witness stated that all the documents provided by the applicant in support of her Skilled visa application were genuine. The witness stated that he gave the applicant an idea of applying for a Skilled visa during their communications when he was in Australia on a Student visa. The witness advised that the applicant had made significant efforts to obtain work as an Agricultural Technician, but, had not been able to secure work in that field.

15. The witness stated that he and the applicant relocated to Queensland in November 2019 from South Australia and both had obtained work as managers of petrol stations in Hervey Bay. The witness stated that the only work that his wife and undertaken in Australia had been in regional areas.

16. The witness advised the Tribunal that he and his wife had good jobs in Queensland and were seen by their employer to be good employees, making a contribution to the local community.

17. The Tribunal asked the applicant what hardship she would experience if her visa was cancelled. She advised that if she was forced to separate from her husband this would cause her severe stress and hardship. She advised that it would be difficult to re-establish her life in Pakistan. She advised that as a result of COVID-19 that it would be difficult to travel back to Pakistan because of the flight situation and it would be difficult to obtain work because of the economic circumstances.

18. 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

19. 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.

20. 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.

21. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

22. 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 Migration Act for the reasons that have been referred to extensively above.

23. Evidence relied upon by the Department to ground the cancellation of the applicant’s visa was based on an open source check of documents provided by the applicant, in support of her meeting the points test employment requirements, for the grant of a Subclass 489 visa.

24. Open source intelligence is data collected from publicly available sources to be used in an intelligence context. In the intelligence community, the term “open” refers to own ‘publicly available sources (as opposed to covert or clandestine sources). In this case the Department undertook internet searches pertaining to the applicant’s claimed place of employment in Pakistan, Pure Dairies, which purportedly had offices in both Lahore and Karachi.

25. As a consequence of open source intelligence checks, the Department determined that letters provided from Pure Dairies indicated that the address for the businesses head office was located in a commercial/residential area, not conducive to farming operations. The Department determined that both locations for the business in Lahore and Karachi were located in commercial/residential areas, not conducive to farming operations. The Department noted that the applicant lived in Lahore and determined that her duties would require the applicant to travel to Karachi, with the delegate finding that this was implausible, as it was a 1250 km journey, and 17 hours by motor vehicle one way. The open source checks by the Department also indicated that the website for the company at the time the NOICC was served on the applicant was not valid, and, had never been valid. In addition to this the applicant provided her own mobile phone number as the work contact number in both the visa application and in the form 80 character assessment and not that of the business, Pure Dairies.  The cumulative effect of this evidence led the Department to find that the applicant’s employment contract, promotion letter, statement of duties, experience certificate, and monthly salary statements were either counterfeit or had been altered by a person without the authority to do so in order to establish that the applicant had worked as a Dairy Technician and Senior Dairy Technician at Pure Dairies. The Department determined that the documents had been fabricated for the purpose of meeting the criteria for approval of a Subclass 489 visa, and that the applicant had not been employed in these roles in Pakistan. The Department determined that the applicant had provided bogus documents in support of her visa application along with incorrect information in support of her visa application.

26. The applicant provided a number of documents and submissions rebutting the findings of the Department.  The applicant advised that the addresses provided in support of the application for Pure Dairies in Lahore and Karachi were the head offices for the business. The applicant advised that the Old Bund Road is a major highway and that there are small agricultural holdings along the road, which is a common farming practice in Pakistan due to a combination of access to land and economic factors. The applicant pointed out that her employment contract required travel between respective dairy sites of the business.

27. The applicant advised that a search of the company website indicates an address at Khokhar Pind Old Bund Road near Shahdara Town Lahore. The applicant advised that Khokhar Pind was well suited to agricultural pursuits. The applicant provided links to both Google Maps and Google satellite which indicated the existence of a Pure Dairies site at Khokhar Pind on the Old Bund Road, an area which appeared to be agricultural and conducive to dairy farming. Independent searches conducted by the Tribunal of this address confirmed this. The evidence before the Tribunal indicates that this worksite was located 17 km from Lahore about a 40 minute drive.

28. The applicant advised in response to the Departmental NOICC and to the Tribunal under oath at hearing that the provision of her mobile phone number in the visa application and in the form 80 pertaining to a work contact was inadvertent and was not deliberate.

29. The Tribunal undertook internet searches pertaining to dairy farming practices in Pakistan in order to assess the veracity of the applicant’s evidence pertaining to her work history. These searches confirmed the applicants evidence pertaining to the location and nature of dairy farming practices in Pakistan. These searches indicated that dairy farming is practised mainly by the private sector in Pakistan on various scales in both an urban and rural setting. The information provided indicated that the sector was characterised as fragmented and subsistence. The searches indicated that most dairy farming is practised in a mixed crop-livestock system (see The evidence of the applicant to the Department in the visa application and to the Tribunal at review indicated that her role traversed both technical advice, with regard to both crop and livestock management.

30. The Tribunal has had regard to the descriptors found in the ANZSCO pertaining to an Agricultural Technician. The applicant gave evidence pertaining to her experience and background that traversed many of the characteristics of this position found in the ANZSCO. The applicant’s evidence at hearing as has been noted indicated that her duties included assessing agricultural operations to increase crop yield and to increase milk production. The role also required advising about agricultural products, re-seeding of paddocks and testing of soil, testing of food, testing milk and livestock to ensure quality assurance and improve the quality of the end produce.

31. The Department expressed concerns about the company’s website being inactive at the time the NOICC was served and at the time of Departmental decision. Searches undertaken by the Tribunal at the time of the review indicate that the website is accessible and operational.  Indeed, as has been noted when the Tribunal undertook a search for Pure Dairies on both Google Earth and Google Satellite, the sites in which the business operated were pinpointed on the map. By way of explanation for this anomaly the applicant advised that “during the course of my employment at Pure Diaries, I had little to no reason to visit the company’s website at url As such I was not aware the website was nonoperational until I received a notice to consider cancelation of my visa. After receiving this information, I contacted a former colleague who is currently the farm coordinator of the business, he verified the original domain name purchase for the site. I understand the site may have been unresponsive at the time of the Departments investigations, however was ‘live’ shortly thereafter and continues to be so now. …The site showcases the business profile, business address (where I was employed) and other elements of the business to support the business’s legitimacy.” The Tribunal is satisfied on the basis of the evidence before it that Pure Dairies has an operational website, and as noted, the location of the business is able to be pinpointed on both Google Earth and Google Maps.

32. The Tribunal has had regard to the evidence before it, and when this evidence is cumulatively considered, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    John Cipolla
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.