SINGH (Migration)

[2019] AATA 975

SINGH (Migration) [2019] AATA 975 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nirmal Singh
Mrs Sarabjit Kaur
Miss Navneet Kaur Kajal

CASE NUMBER:  1730745

DIBP REFERENCE(S):  BCC2016/3761147

MEMBER:Wan Shum

DATE:3 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 03 January 2019 at 4:44pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination Scheme visa– Subclass 186 – declined hearing invitation – breach of s101 and s103 –applicant deliberately provided incorrect information concerning English language ability – bogus document in the form of educational documents – consequential cancellations – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 37, 47, 101, 102, 103, 104, 105, 107, 109, 140, 359A, 375A, 376
Migration Regulations 1994, rr 1.15, 2.41
Freedom of Information Act 1982
Acts Interpretation Act 1901

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
MIAC v Khadgi (2010) 190 FCR 248

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 first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached s.101(b) by giving an incorrect answer on his visa application form and s.103 by providing a bogus document. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

5. The applicant had applied for a Subclass 186 visa granted on 19 November 2015. He nominated the occupation of Mechanical Engineering Technician. To apply for the visa, the applicant completed and submitted the form ‘Application for Permanent Employer Sponsored or Nominated Visa’ and provided a number of supporting documents, which included an IELTS test report form dated 5 December 2014 and a copy of a certificate dated 18 July 2000 and memorandum of marks for a Diploma in Mechanical Engineering purportedly issued by State Board of Technical Education and Training, Andra Pradesh, Hyderabad, India, 4 pages in total.

6. The delegate considered that, when completing the visa application form, the applicant had breached s.101(b) as he responded positively to the questions indicating that he had undertaken an English language test and had achieved the required level of English for the grant of the visa. In addition, the delegate considered that the applicant had provided bogus documents in respect of the criterion that he had the qualifications, experience and other attributes that are suitable for the position.

7. The delegate sent the applicant a notice of intention to consider cancellation (NOICC) of his visa on 2 November 2017 setting out the alleged breaches.

8. The department received an email on 7 November 2017 from the applicant’s representative, stating that he had an authority to act for the applicant and a copy of a FOI request made on behalf of the applicant. In the section for providing detail as to the document(s) or information sought on the request for access to documents or information form, the following was requested: (1) a copy of the sample handwriting captured from Form 1023 dated 15/2/17; (2) a copy of the handwriting and signature from the IELTS writing sheet for candidate ID F8130457 undertaken on 22/11/2014; (3) a copy of the email and attachment sent to verify the diploma in mechanical engineering and reply constituting the ‘integrity checks’.

9. The email also refers to instructions that the allegations underpinning the NOICC are false, and that the applicant instructs that the form 1023 was completed by a third party in a different hand because the applicant had injured his hand on the day in question and was unable to write. In respect of the counterfeit qualifications, it was submitted that the enquiries conducted by the integrity officers in New Delhi were infected by a lack of forensic skill. The representative requested that access be provided to the requested documents under FOI in order to respond to the notice and dissuade the officer from cancelling the visa.

10. Subsequently, the representative informed the department that the applicant’s mother had died and that he needed to return to India and requested a further 14 days to allow him to depart for India and return to Australia without the visa being cancelled. The delegate advised on 20 November 2017 that there was no provision to allow for an extension of time and that he was unable to delay the decision but that the personal circumstances of the applicant would be taken into consideration when progressing the case.

11. A decision was made to cancel the visa on 30 November 2017. The delegate found that there was a breach of ss.101(b) and 103. The delegate found that the applicant had provided incorrect information on page 10 of the visa application form ‘Application for Permanent Employer Sponsored or Nominated Visa’, under the headings “Language Ability” and “English test details”. The delegate considered that the applicant had not complied with s.101(b) in respect of his responses to the questions “Has the applicant undertaken an English language test within the last 36 months” and “Give details of the most recent English Test” as the delegate considered the responses were not correct. This conclusion was based on the Department’s overseas post in New Delhi confirming that although the IELTS certificate provided was genuinely issued, the handwriting and signature on the IELTS writing sheet of the candidate did not match the handwriting and signature on Form 1023 submitted in association with the visa holder’s application for Australian citizenship. The delegate stated that there were serious concerns whether the applicant actually undertook the English language test on 22 November 2014 and that it appeared that the visa holder’s English language ability may not have been assessed as competent as required by r.1.15C.

12. In addition, the delegate considered that the applicant had provided a bogus document in respect of the criterion that he had the qualifications, experience and other attributes that are suitable for the position as required. The delegate referred to the applicant having submitted an academic transcript of a Diploma in Mechanical Engineering from the State Board of Technical Education and Training, Hyderabad, Telangana for his application. The delegate considered that the visa holder had not complied with s.103 because the applicant had provided a ‘bogus document’. This finding was based on the integrity checks undertaken with the State Board of Technical Education and Training, Hyderabad (SBTET) which confirmed that the document was counterfeit and had not been issued by SBTET.

13. On 6 December 2017, the department released in part the documents requested. According to the schedule of documents to the FOI decision record, departmental file CLD2017/34269265 which consisted of 8 pages was released, except for pages 7 to 8 which were exempt in full, departmental file CLD2017/39075338 which consists of 8 pages was released in part and departmental file CLD2017/41057898 consisting of 7 pages was released in part. The first set of 8 pages consisted of an email to the NDLI Referral Unit (DFAT) from the Visa Cancellations division of the department dated 21 September 2017 and attachments. The email refers to an allegation received in relation to the applicant submitting bogus education documents and IELTS certificate and requesting verification of the genuineness of the education documents and IELTS certificate on the pages that follow. These documents are 4 pages of educational documents and the IELTS certificate dated 22 November 2014. The final two pages are blank and annotated with “s.37(1)(b)”.

14. The second set of 8 pages consists of an email an officer from the New Delhi Referral Team to the “Visa Cancellations” team followed by an email trail of correspondence between the New Delhi officer and the IELTS test centre regarding the IELTS certificate. The email trail refers to attachments and email communications including the handwriting samples from form 1023 which had been submitted in association with the applicant’s application for Australian citizenship dated 15 February 2017 and the handwriting sample provided by the IELTS office. The New Delhi officer was advised that the test results for candidate ID F8130457 TRF 14IN144310TN855G match the system records but that the sample handwriting and signature captured from form 1023 did not match the handwriting or signature from the IELTS writing sheet for candidate ID F8130457 undertaken on 22 November 2014. The partial release is because the IELTS test centre email address in the email responses and the name of the responding party have been replaced with “s.47E(d)” or “s.47F(1)”. Pages 4 to 8 are copies of the IELTS Writing Answer Sheet for Task 1 and 2 which have the applicant’s name in the candidate name.

15. The third set of 7 pages consists of a number of documents entitled ‘Referral Reports – IELTS verification’ which is a summary of the verification checks undertaken by the New Delhi officer. The documents from pages 1 to 4 contain copies of the text from emails sent from the officer to Verification IELTS. The conclusion of the officer appears at page 3 with “Outcome: serious concerns”. From pages 4 to 7, the heading is ‘Verification SBTET’ with the information below being the text of email correspondence between the officer and the State Board of Technical Education and Training, Hyderabad, Telangana. The New Delhi officer concludes on page 7 that the outcome was non-genuine, based on the verification checks with SBTET Hyderabad that the educational documents are counterfeit.

    Proceedings before the Tribunal

16. On 30 August 2018, the Tribunal sent the first of three hearing invitations to the applicant’s representative and authorised recipient to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case. The hearing was scheduled for 14 September 2018.

17. The following day, the Tribunal received a request for an adjournment on the basis that the representative had “lecturing commitments in Melbourne from 13 to 15 September 2018 and the following week [he] would be out of the office from Thursday pm on leave.” The representative further requested that the Member examine the relevant files and advise him as to whether there were any “certificates” on that file, which the Tribunal understood to refer to certificates issued pursuant to ss.375A and 376, upon which the applicant may be requested at hearing to comment on. He sought access to the certificates prior to the hearing and that if “the Member does not disclose the existence of the certificates prior to the hearing it will be necessary for [him] to seek an immediate adjournment of the proceedings and the recusal of the Member”.

18. On 5 September 2018, an officer of the Tribunal phoned the representative’s offices to ascertain his availability for a hearing in the week beginning 17 September 2018. The officer was asked to put it in writing. The officer emailed the representative at 3:07pm and sought confirmation as to whether a hearing at 10am on 17 September 2018 or a hearing at 10:30am on 20 September 2018 would be suitable. The representative responded at 3:20pm that he was unavailable on either dates. No alternative times or dates were given in that response.

19. On 6 September 2018 at 5:10am, the Tribunal received an email clarifying that “we need urgent access to the certificates that will form part of this file and the Home Affairs file. We seek the certificates not the excluded material. We have been diverted into an FOI request which at this stage will inevitably ensure that prior to the hearing (whatever date is set) will deprive us of the opportunity to properly prepare for hearing. FOI delays are at this stage are [sic] extended. We need the Member … to intervene, have the certificate identified, extracted and made available well in advance of the hearing”. It was not clear to the Tribunal when the FOI request was made to the department.

20. Later that day, the applicant was sent an invitation to a hearing scheduled for 18 September 2018 at 1:30pm with a copy of the s.375A certificate issued by the delegate on 15 December 2017.

21. On 7 September 2018, the Tribunal received an email from the representative acknowledging receipt of the s.375A certificate and referred to the member pressing for a hearing date of 17 September. The representative raised concerns with the certificate stating that the certificate does not appear to be in proper form and requested a copy of the instrument of delegation, the full identity of the delegate “David” and evidence that he is the occupant of position number 60047658. The representative stated that he was unable to comment on the validity of the certificate until he had access to that information. The representative expressed the view that it was not procedurally fair for the Tribunal to presume the validity of the certificate and then require the applicant to comment on its validity. The representative also referred to having grave concerns about the information and quoted the wording used on the certificate asserting that it discloses “identity of a confidential sources of information and confidential departmental investigate [sic] methods used to detect breaches of the law”. He bolded the sentence “We do not seek access to any identifying the confidential information if any” but stated that they did not know what transpired, what documents were sighted, who was spoken to, what they said and whether any weight can be given to the results of the investigation. The representative expressed the view that it was procedurally unfair to proceed where the Tribunal had not verified the status of the purported delegate. The representative also referred to the need for a clear indication as to what weight and relevance of the documents will be and what steps the Member has taken to verify the substantive facts underpinning the findings of the investigative officer(s).

22. Later that day, an officer of the Tribunal wrote to the department referring to the representative’s request for a copy of the instrument of delegation, the full identity of the delegate “David” and evidence that he is the occupant of position number 60047658. The officer informed the representative by email that this had occurred, and advised that a hearing was arranged on 18 September 2018 because he had indicated that he would be on leave from 19 September 2018 (should have stated 20 September 2018) but not when he was returning from leave.

23. On 8 September 2018 (Saturday), the representative responded to the email stating that the unilateral nomination of a hearing date suggested that the Tribunal was not interested in his availability.

24. On 11 September 2018 (Friday), the Tribunal received a copy of the instrument of delegation from the department. The instrument was made on 16 September 2015 by Peter Dutton, then Minister for Immigration and Border Protection, relevantly stating that each person holding or occupying or performing the duties of a position inclusive of Australian Public Service Level 6 – Level 4 in the department. On 14 September 2018, the Tribunal received an email advising that “David” is the occupant of position number 60047658 and a revised s.375A certificate dated 14 September 2018 which referred to the same folios and reasons for the certification as the certificate dated 15 December 2017 but was in a slightly different format. A request was made for the department to confirm the delegate’s classification level, and a response was received on the same day that the delegate is APS5.

25. On 16 September 2018 (Sunday), the representative emailed stating that there was a request for adjournment and referred to the hearing on Monday at 2pm. On 17 September 2018 (Monday), an officer of the Tribunal wrote to the applicant informing the applicant that the Tribunal could not provide the full identity of “David” but that the department had confirmed that he was the occupant of position number 60047658. The officer also advised that the request for postponement was not granted and the hearing scheduled for 1:30pm on 18 September 2018 would proceed as the information requested had been provided. A copy of the instrument of delegation was not provided at that time.

26. On 18 September 2018, an email from William Levingston of Mr Levingston’s offices was received asking why the Tribunal had failed to notify them of a hearing scheduled that day stating that there was no written correspondence to that effect. The officer spoke to William Levingston and referred him to the invitation sent on 6 September 2018 for the hearing on 18 September 2018. William Levingston confirmed that they had received the invitation but that it appeared that Mr C Levingston had believed the hearing was for 17 September 2018. He stated that neither the representative nor applicant would attend. The officer sent a letter to the applicant regarding these events and referred to the statement in the hearing invitation that “if the applicant does not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable [him] to appear before it”. This letter was then resent on the same day addressed to the representative. The representative responded by email later that day stating that he needed more notice of the hearing, and “conceded that the relevant certificate appears to be made by an authorised person”. However, he stated that he could not understand why that information received “on Friday afternoon was not communicated immediately and apparently withheld until Monday”. He requested that the member formulate in writing the concerns in a s.359A letter and that “once that has been done we can then have the matter set down for a hearing”.

27. The Tribunal officer responded on 20 September 2018 stating that a new hearing was arranged following his request for a postponement but that we were not given any indication of his availability despite contacting his office to ascertain his availability on certain days and times. It referred to the second invitation being sent on 6 September 2018 for a hearing on 18 September 2018 with an attached s.375A certificate. The officer indicated that the member was considering how to proceed, and reiterated that it may proceed to a decision in the circumstances.

28. The Tribunal received an email from the representative stating that he had requested the member reduce her concerns under s.359A to writing. The representative stated that the failure to attend the hearing was because there was a failure to act reasonably by rescheduling a hearing without reasonable notice. It was stated that if the Tribunal were to relist the matter for hearing, and when s.359A matters are raised orally, the representative “will immediately seek an adjournment to put on a reply in writing”.

29. A response was sent to the representative on 20 September 2018 stating that the member would consider how it will proceed and whether a s.359A letter is required. The representative responded later that day stating that the information relied upon by the delegate needs to be put to the applicant and stated that the investigation if any was not properly conducted and cannot be relied upon. However, no details were provided as to the basis for this assertion.

1. On 21 September 2018, the Tribunal received an email from the representative stating that he was only given 18 hours’ notice of the hearing. He again requested that the Tribunal reduce the s.359A matters to writing. It was stated that the allegation is denied and that he had “grave concerns that the manner in which the purported investigation was conducted and that fact that there is no evidence that the enquires were made of the proper persons and that there is insufficient evidence to ground the allegation of what in effect, amounts to a civil fraud”.

2. On 25 September 2018, the Tribunal officer emailed the representative with a copy of the hearing invitation dated 6 September 2018 for the hearing on 18 September 2018 and referred to William Levingston confirming that their offices had received that email.

3. Although the Tribunal considers that the applicant was given sufficient notice of a rescheduled hearing, postponed at his request, it had concerns that the representative had not notified the applicant of either of the hearing dates. Given this, it decided to invite the applicant to another hearing scheduled on 31 October 2018. On 17 October 2018, the Tribunal received a response from the representative’s office indicating that the applicant and representative would attend the hearing on 31 October 2018.

4. The Tribunal wrote to the department regarding the FOI request that the representative had referred to in his correspondence. The Tribunal was informed that the documents and information requested were released in part on 6 December 2017, and a copy of the FOI decision record and released documents was provided.

5. The Tribunal also requested from the department a copy of the original emails sent between the New Delhi visa officer and the General Secretary of the SBTET in Hyderabad. In response, a set of documents were sent to the Tribunal which appeared to be a copy and paste of the text of the emails sent from the New Delhi Officer to the visa cancellations division. The delegate issued a s.376 certificate on 2 October 2018 in respect of these documents. A number of emails were sent to the department regarding the issuing of that certificate and a request for a copy of the attachments referred to in the emails. The Tribunal was forwarded a copy of an email dated 23 October 2017 from the New Delhi Officer to the delegate referring to “attached the verification outcome of the educational document pertaining to [the applicant] which has been verified to be non-genuine and never issued by the institute”. The attached letter is signed and dated from the Secretary of the SBTET in Hyderabad. A further s.376 certificate was issued on 19 October 2018 in respect of these folios. On 29 October 2018, the Tribunal received an email from the department attaching revocation notices for the s.375A certificates issued on 15 December 2017 and 14 September 2018, and the s.376 certificate issued on 2 October 2018. Later that same day, the Tribunal requested clarification from the department regarding the certificates issued and revoked.

6. On 30 October 2018, the Tribunal received a letter from the representative stating that the applicant had elected to have the matter determined on the papers and without giving oral evidence. This was because of the “decision to withhold material particulars concerning the investigation said to have been conducted by unspecified officers speaking to unknown persons regarding the Applicants claims concerning his qualifications. The Tribunal has elected not to give the Applicant any particulars which might be the basis of an adverse finding concerning the claimed qualification which may or may not be the subject of the qualification in section 359A(4). Under the circumstances and having regard to the failure to give particulars or to invite the Applicant to comment on the relevant information other than asking him to comment on the validity of the relevant certificate under section 375A…; the Applicant elects to have his case decided ‘on the papers’ rather than expose himself to the Tribunal and the conduct of the proceedings which are being managed” by the member as a contradictor rather than an inquisitor.

7. On 2 November 2018, the Tribunal received confirmation from the department that the only certificate in place was that issued pursuant to s.376 on 19 October 2018. The Tribunal wrote to the applicant regarding this certificate, and attached a copy, and advised that the earlier s.375A and 376 certificates had been revoked. The Tribunal advised that the only certificate which remains was issued on 19 October 2018 under s.376 in respect of information regarding checks undertaken of his qualifications with the State Board of Technical Education and Training, Hyderabad. The Tribunal advised that the s.376 certificate applies to a document setting out the summary of the checks undertaken with the State Board of Technical Education and Training, Hyderabad which was released to the applicant by the Department under the Freedom of Information Act 1982 on 6 December 2017.  The applicant was further informed that the s.376 certificate of 19 October 2018 also applies to information contained in a document from the Secretary of the State Board of Technical Education and Training, Hyderabad which confirms that the office had not issued any diploma certificate to the applicant. The information that the SBTET did not issue the certificate is referred to in the summary that was relied upon by the delegate to cancel his visa, as set out in the decision record on pages 4 and 6.

8. The Tribunal sought confirmation that the applicant wanted it to proceed to determine the matter on the papers. The Tribunal requested a response and any comments he wished to make on the validity of the s.376 certificate.

9. On 14 November 2018, the Tribunal received a letter from the representative seeking advice as to whether the delegate occupied the position number and that this number permits him to issue a certificate under s.376 of the Act. In addition, the Tribunal was asked to clarify what was sent to SBTET and additional time to respond.

10. On 15 November 2018, the Tribunal responded to the representative’s letter and advised that it had requested a copy of the original emails between the New Delhi visa officer and the General Secretary of the State Board of Technical Education and Training in Hyderabad and had been provided with a copy of the document setting out the summary of the checks undertaken with the SBTET, Hyderabad, and an email between “Bhasin” and “David” and a letter from the SBTET in Hyderabad. The Tribunal provided a copy of the email and letter from SBTET with the names redacted to the representative. The Tribunal also informed the representative that it had not been provided with an exact copy of the attachments that were sent to the General Secretary of the SBTET in Hyderabad for verification. But that it was the Tribunal’s understanding that the only documents relating to the applicant’s education before the referral officer Bhupinder K Bhasin had been forwarded by the delegate (“David”) on 21 September 2017 for verification checks to the New Delhi referral unit, being the documents that he had referred to as folios 1 to 5 “second series”.

11. On 21 November 2018, the Tribunal received a request from the representative for the instrument of delegation and verification of exactly what was sent to SBTET for verification. It was also requested that the Tribunal advise whether the issue in relation to the IELTS test results remained unresolved.

12. On 23 November 2018, the Tribunal forwarded a copy of the instrument of delegation to the representative and advised that it would consider all the matters raised in the NOICC. On the same day it requested further information from the department. The Tribunal received a copy of the actual email sent by the New Delhi officer and attachments, which were the educational documents at folios 1 to 5 “second series” that were released to the applicant by the department under FOI. The Tribunal forwarded this to the representative on 29 November 2018 with a copy of another s.376 certificate issued on 14 November 2018 in relation to these folios inviting comments on its validity. The Tribunal again asked for confirmation from the applicant as to whether it wished the member to proceed to a decision on the papers by 4 December 2018.

13. On 3 December 2018, the Tribunal received a response from the representative acknowledging the information concerning the SBTET documentation and stating that the instrument of delegation is “infected by a latent defect. The instrument is signed by the Former Minister under a [sic] the name of a now defunct Department. The instrument purports to delegate his personal powers which cannot be delegated by him if he is no longer the Minister. The appointment of a new Minister and the creating of a new department extinguishes the previous instrument.” Further in relation to the IELTS investigations, the representative stated that the sample which was sent to the IELTS team was gleaned from a file and “that sample is not in the Applicants [sic] hand writing” asking the member to advise where the sample was obtained from. The Tribunal responded on 5 December 2018, advising that it would consider his comments on the validity of the instrument and that in respect of his query regarding the handwriting sample, noted that he had previously made an FOI request for "a copy of the 'sample' handwriting captured from the Form 1023 dated 15/2/17". The Tribunal forwarded a copy of the said form for completeness. The representative was informed that the Member will now proceed to a decision on the papers as it had not been informed of any changes since the initial request made on 30 October 2018.

14. On 6 December 2018, the Tribunal received an email from the representative stating that the member needed to be aware that form 1023 was not completed by the Applicant but by a friend because the applicant had an injury to his hand when that form was completed.

    The certifications under ss.375A and 376

15. The Tribunal has considered the representative’s submission as to the invalidity of the instrument of delegation. Having regard to the Acts Interpretation Act 1901, as the instrument was signed and dated by Peter Dutton at the time he was the Minister for Immigration, the Tribunal has proceeded on the basis that the instrument of delegation is valid. The Tribunal has been advised that the delegate is APS5 which means he is delegated to issue s.375A and s.376 certificates. In any case, only two s.376 certificates remain in place following revocation by the delegate of the some of the certificates issued. The Tribunal provided a copy of the folios regarding the applicant’s claimed qualifications as requested, other than the name of the person, which was not requested.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The law

16. 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.

17. 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.

18. 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?

19. 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 ss.101(b) and 103 in the following respects:

    ·the applicant answered “yes” to the question “Has the applicant undertaken an English language test within the last 36 months” and under the section  “Give details of the most recent English Test”, gave details of an IELTS test dated 22 November 2014, with reference number 14IN144310TN855G taken in India. It was stated that his language ability was “superior”.

    ·the applicant had provided a bogus document in respect of the criterion that he had the qualifications, experience and other attributes that are suitable for the position by providing educational documents for a Diploma in Mechanical Engineering from Andra Pradesh State Board of Technical Education and Training (SBTET), Hyderabad dated 17 July 2000.

20. The applicant denies the allegations but did not appear before the Tribunal to give evidence and present arguments in support of his case. As noted above, he was invited to appear on 3 different dates but, while initially indicating that he would appear before the Tribunal on 31 October 2018, the Tribunal was informed on 30 October 2018 that he would not appear and wanted a decision on the papers.

21. In respect of a failure to comply with s.101(b), the responses relate to the applicant’s English language ability. The results of an investigation undertaken by the Department’s overseas post in New Delhi with IELTS in India confirmed that although the IELTS certificate provided was genuinely issued, the handwriting and signature on the IELTS writing sheet of the candidate did not match the handwriting and signature on Form 1023 submitted in association with the visa holder’s application for Australian citizenship. The conclusion from the investigation is that the handwriting and signature are different on two documents which the applicant is said to have completed and signed. The applicant does not argue that the handwriting is different. Rather, it is claimed that the form 1023 was completed by a friend as the applicant had injured his hand on the day in question and was unable to write. The Tribunal has considered this response but is not prepared to accept the assertion that any apparent difference in the handwriting is because the applicant had not completed the form 1023 himself. No evidence has been provided to support his assertion, such as a letter or statement from the friend/third party confirming that it was he/she who completed the form or anything to confirm that he had sustained a hand injury at that time from his workplace or doctor. The Tribunal thus does not accept that the handwriting on Form 1023 signed and dated 15 February 2017 is not the applicant’s. The applicant does not dispute that the handwriting is different to that on the IELTS answer sheets. In the circumstances, the Tribunal considers that the IELTS test on 22 November 2014 was not undertaken by the applicant. It thus finds that there was non-compliance with s.101(b) as the responses to the questions on the visa application form that he had superior English based on an IELTS test taken on 22 November 2014 were not correct.

22. In respect of the counterfeit qualifications, it was submitted that the enquiries conducted by the integrity officers in New Delhi were infected by a lack of forensic skill. However, while there were a number of enquiries from the representative as to what exactly was sent to SBTET Hyderabad for verification, and general concerns raised as to who was spoken to and what they said, nothing further was submitted as to why there was a perceived “lack of forensic skill”. The Tribunal has had regard to the outcome of the verification checks undertaken by the New Delhi officer with the secretary of SBTET Hyderabad as advised to the delegate on 23 October 2017, that the documents were counterfeit and had not been issued by SBTET, Hyderabad. These verifications checks were apparently carried out with the body which the applicant claims to have undertaken his diploma study. There is nothing to suggest that the verification process was not properly conducted. Based on the investigations, the Tribunal has a reasonable suspicion that the documents are counterfeit and that these documents are bogus documents as defined in s.5(1).

23. It thus finds that there was non-compliance with s.103 in that a bogus document was provided to an officer, an authorised system or the Minister.

24. For these reasons, the Tribunal finds that there was non-compliance with ss.101(b) and 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

25. 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).

26. 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. 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.

27. The applicant’s brief response and relevant matters have been considered below.

    The correct information                

28. Based on the results of the verification checks undertaken and referred to in the delegate’s decision, the correct information is that the applicant had not achieved the scores in the IELTS test report form submitted with the application as the Tribunal finds that the applicant did not take the test on 22 November 2014 as claimed. In addition, the applicant has provided a bogus document in support of his claim to have a diploma.

    The content of the genuine document (if any)

29. The IELTS test results were issued to the applicant, but the Tribunal has found for the reasons set out above that he did not undertake the test so it is not a proper reflection of his English language ability. In respect of the educational documents provided from SBTET, there is no genuine document as such as no document should have been issued to the applicant by SBTET, Hyderabad.

    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

30. A Subclass 186 visa is granted on the basis of a visa applicant’s skills and ability to work for an employer in a particular occupation. One of the requirements under Part 186 of Schedule 2 to the Regulations is in relation to the level of English language ability the applicant must have. For a Subclass 186 visa, the minimum level is “competent English” which is defined in r.1.15C. The Tribunal considers that the decision to grant the Subclass 186 visa was based partly on incorrect information that he had ‘superior’ English achieved in an IELTS test on 22 November 2014. As the IELTS results were relied upon, it thus lends support to the decision to cancel the visa.

31. It is unclear on the information before the Tribunal whether the decision to grant the Subclass 186 visa was based on a bogus document in the form of educational documents relevant to a diploma of Mechanical Engineering from SBTET, Hyderabad.

1. Regardless of whether it was directly relied upon by the granting officer, the Tribunal considers the provision of a bogus document a reason to support a decision to cancel the visa.

   The circumstances in which the non-compliance occurred

2. The applicant was granted a Subclass 186 visa as a mechanical engineering technician on 19 November 2015, claiming that he met the requirements for the grant of this visa. He claimed to have the necessary level of English for the visa and that he had completed diploma study.

   The present circumstances of the visa holder

3. The Tribunal has limited information before it regarding his present circumstances. It notes that the review application included details of his wife and daughter, and his residential address (although incorrectly recorded). According to the visa application form, he had held a Subclass 457 visa a mechanical technician with Axis Trucks from 21 March 2013. The Tribunal does not have any information as to whether he remains employed by this business.

4. On 17 November 2018, a request was made to the department not to make a decision to allow the applicant to go to India as his mother had recently passed away. According to the information set out in the delegate’s decision record regarding the department’s movement records, it appears that he did not depart Australia.

   The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

5. The applicant did not give a full response to the NOICC but has denied any fraud in respect of the IELTS test and claims that there was a lack of forensic skill in respect of the verification checks undertaken regarding his qualifications. He declined the Tribunal’s invitation to a hearing.

   Any other instances of non-compliance by the visa holder known to the Minister

6. The Tribunal is not aware of any other instances of non-compliance known to the Minister.

   The time that has elapsed since the non-compliance

7. The applicant made the application for the Subclass 186 visa in June 2015. Around three and a half years have passed since the non-compliance.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

8. There does not appear to be any breaches of the law since the non-compliance.

   Any contribution made by the holder to the community

9. No information was provided relevant to this matter.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

10. In terms of mandatory legal consequences, if the applicant’s visa remains cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen. If he fails to depart Australia before the bridging visa expires, he may be detained and removed. There may be restrictions on the applicants’ future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. The Tribunal has taken these matters into account in deciding whether his visa should be cancelled.

    Whether there would be consequential cancellations under s.140

11. The applicant’s wife and child were granted visas as dependents. Their visas were cancelled under s.140 and would remain cancelled if his visa remains cancelled. This is not a reason for setting aside the cancellation, as it is an intended consequence of the legislation.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

12. There is no evidence, and the applicant does not claim, that Australia has protection obligations towards him. The Tribunal is also mindful that the applicant is able to make an application for a protection visa if he believes Australia owes him protection obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application.

13. There is one child of the marriage. There do not appear to be any international obligations which would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.  The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached if the visa is cancelled and that the cancellation should not be set aside having regard to the likelihood of such breaches.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

14. The applicant and his wife and child were granted permanent visas on 19 November 2015 under the Employer Nomination Scheme. There is no information before the Tribunal as to any hardship that may be caused to the applicant and any family members by the cancellation of his (and their) visas.

    Summary

15. The Tribunal has formed the view that there was a breach of ss.101 and 103 of the Act in the way described in the NOICC and that there are grounds for cancelling the visa. The Tribunal has taken into account the applicant’s denial of any breach. It notes that the applicant’s wife and child’s visas will remain cancelled if his visa remains cancelled, and that a decision to cancel the visa has a direct impact on three individuals. It is possible that the cancellation of the visa would cause a degree of hardship to the parties, although no claims or evidence have been made regarding any possible hardship.

16. The provision of false information to obtain visas is of grave concern and impacts on the integrity of the migration and visa system in place in Australia. While it is unclear that the documents regarding his diploma qualification were directly relied upon to grant the Subclass 186 visa, the provision of bogus documents is also serious and is a breach of s.103 of the Act. The applicant has not provided any arguments as to why his visa should not be cancelled, other than bare assertions that the integrity checks undertaken were lacking in forensic skill.

17. 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. As the visas were granted on the basis of incorrect information, and having regard the matters outlined above, noting in particular that there is limited information before the Tribunal regarding the applicant’s present circumstances and the lack of any information as to any contribution to the community which may otherwise support a finding that the visa should not be cancelled, the Tribunal concludes that the visa should remain cancelled.

    DECISION

18. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

19. The Tribunal has no jurisdiction with respect to the other applicants.

    Wan Shum
    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.