Umer (Migration)

Umer (Migration) [2021] AATA 1338 (10 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Sophia Asad Umer
CASE NUMBER:  1835251
HOME AFFAIRS REFERENCE(S):          BCC2017/2711591
MEMBER:Justin Owen
DATE:10 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 10 March 2021 at 3:09pm

CATCHWORDS
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa–primary applicant had given incorrect information in skilled visa application–fraudulent employment reference letter – educational qualifications and workplace experience – bogus documents – applicant plays an important ongoing role in her community as a GP – time that has elapsed since the non-compliance – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 101, 103, 107, 109, 359A
Migration Regulations 1994, r 2.41, Schedule 2, cls 175.211, 175.221
CASES
MIAC v Khadgi (2010) 190 FCR 248
Trivedi v MIBP [2014] FCAFC 42
Wan v MIMA (2001) 107 FCR 133

statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 and s.103 of the Act in relation to a previous visa she had held, namely a subclass (175) Skilled visa she had been granted on 7 November 2011.
The delegate considered that there was non-compliance with s.101(b) that requires visa applications are to be correct, noting that a non-citizen must fill-in or complete his or her firm in such a way that no incorrect answers are given or provided. The delegate also considered the applicant had not complied with s.103 of the Act that is, bogus documents are not to be given. Bogus documents relevantly include a document the Minister reasonably suspects is counterfeit or has been altered by a person who does not have authority to do so. As this was the case, the applicant’s visa was liable for cancellation under s.109 of the Act. The delegate, after subsequently considering the applicant’s response and having regard to any prescribed circumstances, cancelled her subclass (155) Resident Return visa on 29 November 2018.
On 30 November 2018 the applicant applied to the Tribunal for review of the delegate’s decision to cancel her visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal via videoconference on 10 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Mariusz Gorniak, Miss Marwa Asad Shah, Miss Safa Asad Shah and Mr Asad Niaz Shah.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
A s.375A certificate dated 19 March 2020 appeared on Departmental file BCC2017/2711591 stating that disclosure of the information in folios 26-103 would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of law which would or be likely to prejudice the effectiveness of those methods. Disclosure of folios 180-182 was precluded as it would be contrary to the public interest because it could prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance. The Tribunal considered the certificate to be valid. The Tribunal put the certificate to the applicant in writing under the usual provisions on 22 July 2020. The applicant responded in writing on 3 August 2020. The Tribunal has taken the applicant’s response into account in the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 of the Act.
Was there non-compliance as described in the s.107 notice?
Particulars
On 27 September 2018 the Minister’s delegate invited Dr Sophia Umer (the ‘applicant’) to comment on the delegate’s intention to consider cancellation of her subclass (155) (Five Year Resident Return) visa. The applicant had been granted a subclass 155 (Resident Return) visa on 31 July 2017.
The applicant responded on 23 October 2018.
On 29 November 2018 the Minister’s delegate, having taken into account the applicant’s response, decided to exercise discretion under s.109 of the Act to cancel the applicant’s visa having decided that the applicant did not comply with s.101(b) and s.103 of the Act. In that decision, the Minister’s delegate concluded the reasons for not cancelling the applicant’s visa did not outweigh the non-compliance.
Section 101 of the Act states: “A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.
Section 103 of the Act states: “A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a Tribunal performing a function or purpose under this Act, a bogus document, or cause such a document to be so given, presented or provided”.
The Tribunal notes that the claimed non-compliance relates to a visa that the applicant has previously held. At the time of the cancellation of the visa, the applicant was no longer the holder of the subclass (175) Skilled visa. s.107A of the Act states that possible non-compliances in connection with a previously held visa may be grounds for the cancellation of a visa holder’s current visa. In this case, the applicant’s claimed non-compliance relates to her previously held subclass (175) Skilled visa. The applicant was granted a subclass 155 (Resident Return) visa on 31 July 2017.
Claimed non-compliance
The particulars of the information from the delegate’s decision record of 29 November 2018 are that in association with the applicant’s application for her subclass 175 (Skilled visa) application, she completed and submitted the `General Skilled Migration Applicant Form' and provided other documentation that did not comply with s.101(b) and s.103 of the Act.
This application form contained, in part, the following questions and answers provided by the applicant. These were summarised in the delegate’s decision record and put to the applicant under s.359A on 20 March 2020:
On page 1 under `Work experience or two year study', it asked the applicant to `select the condition that applies to you'. The selected option of the applicant was: "You have worked in an occupation on the Skilled Occupations List (SOL) for 12 out of the 24 months immediately before lodging this application."
On page 11 under `Applicant skills assessment', this question was answered, in part, as follows:
`Nominated Occupation':                   "Computing Professionals - Software Designer"
`Name of assessing authority':          "Australian Computer Society"
`Date of Skills Assessment':              "8 DEC 2008"
'Reference/Receipt number': "336961"
`Have you been employed in this occupation or a closely related occupation for 12 out of the 48 months immediately before lodging this application?'           "Yes"
On page 12 under `Applicant educational qualifications', it is stated, `Please provide details of Australian and/or overseas post-secondary qualifications.' The applicant answered the question, in part, as follows:
`Overseas qualifications':
`Qualification': "Masters Degree"
`Course name':           "Masters in Computer Sciences"
`Institution name':      "American International College"
`City':              "Lahore"
`Country':                   "PAKISTAN"
`Date from':     "4 JUN 1988"
`Date to':                    "27 SEP 2000"
On page 13 under `Applicant past employment', it was stated, `List your employment for the last four years. Only past employment in occupations on the Skilled Occupations List is relevant.' The applicant answered the question as follows:
`Position':                   "Computing Professionals — Software Designer"
`Employer name':      "LYCETECH"
`Country':                   "PAKISTAN"
`Date from':                "1 FEB 1998"
`Date to':  "4 JAN 2009"
`Description of duties':           "I am responsible to desgin (sic) and development software application for our corporate clients as assigned by the management. I am also resposnible (sic) to coordinate with the clients and provide them technical support of continuous basis. To ensure the successful deployment of the application ontime (sic) is also the part of my duties"
`Applicant current occupation and duties':
`Describe your current occupation and duties in detail for inclusion on the Skill Matching Database:' "I am currently employed in Lycetech from Feburary (sic) 1998 to date as software engineer and now the senior software engineer. I have strong skills in client server application development using various platforms like Visual basic, Oracle developer using DBMS system like MS SQL Server and Oracle database."
On page 16 under `Declaration for all applicants', it is stated `Warning: Under the Migration Act 1958, there are penalties for deliberately giving false or misleading information'. This statement was acknowledged by the applicant answering "Yes".
The Tribunal notes from the Departmental file and the delegate’s decision record that the applicant submitted to the delegate a range of evidence and information pertaining to her educational qualifications and work experience for the nominated occupation `Computer Professional — Software Designer'. These included:
·Employment reference letter from the Project Manager of Lycetech, Mr Asim Imran, attesting to the applicant’s position of Software Engineer within the company from February 1998 and her subsequent promotion to Senior Software Engineer from October 2000, dated 16 September 2008; and
·Certificate of qualification from the American International College for a Master of Computer Sciences from 1998 to 2000.
·On page 5 of the applicant’s Form 80 — `Personal particulars for character assessment', the applicant provided the following information concerning her previous employment and educational qualifications - namely in the answers to question numbers 22, 23 and 24:
The Tribunal notes that the applicant was granted her Skilled (Subclass 175) visa on 7 November 2011 on the basis of the aforementioned information, as well as meeting all the relevant criteria, including the criteria found at paragraphs 175.211 and 175.221 of the Migration Regulations 1994 (`the Regulations') which state, in part:
Regulation 175.211
(a) the applicant has been employed in a skilled occupation for at least 12 months in the period of 24 months ending immediately before the day on which the application was made...
`skilled occupation' is defined in Part 1, Division 1.2 of the Regulations and states:
`skilled occupation' means an occupation that is specified by the Minister in an instrument in writing for this definition as a skilled occupation for which a number of points specified in that instrument are available
Regulation 175.221
The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.
Note That Subdivision of the Act provides in sections 92 to 96 for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark.
The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6B of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument (Act, section 96).
As outlined in the delegate’s decision record, at the time the applicant lodged her submissions and evidence for the Skilled (Subclass 175) visa, some 120 points were required to meet the criteria under Regulation 175.221. The delegate noted that the applicant had accumulated points for the information she had provided about her occupation (60 points) and specific work experience (10 points). These points, the delegate asserted, were necessary to enable the applicant to meet the criteria for the grant of the visa.
The Tribunal put this information to the applicant under s.359A on 20 March 2020. The Tribunal furthermore in its correspondence asked the applicant to comment on or respond to the following findings of the delegate in his decision record:
- Subsequent to the grant of this visa, the Department received information that incorrect information had been provided in support of the application which included fraudulent documents in relation to your claims for the nominated occupation.
- The Department conducted verification checks of the documents submitted in relation to your claims to the nominated occupation for the visa, including the additional letter from New Garden Town campus of the American International College provided in response to the allegation. The verification checks revealed that the employment reference letter dated 16 September 2008 from `Lycetech' attesting to your position as a Software Engineer within the company from February 1998 is fraudulent. Furthermore the certificate indicating the qualification for the Master of Computer Sciences from the American International College is also fraudulent.
- Specifically, it has been revealed that the American International College campus at `New Garden Town' has been closed since five years ago and it is not possible that a letter would have been issued by them on 4 April 2016 verifying your qualification.
- It has also been revealed that the company name ‘Lycetech' for a software technology company does not exist in Lahore, Pakistan and the contact number on the employment reference letter is registered to `The Lyceum School' who have held this contact number for 15 years and have never heard of the company name Lycetech'. Perusal of the company website also reveals that while it is active, it is for sale.
- Based on the Department's findings, it was considered the documents provided in support of the nominated occupation `Computing Professionals — Software Designer', an occupation listed in the instrument specified by the Minister for the Skilled — Independent (subclass 175) visa, are either counterfeit or have been altered by a person who does not have authority to do so. It appears that these documents have been fabricated for the purpose of meeting the criteria for the approval of the Skilled — Independent (subclass 175) visa which indicates that you are not qualified as a Computing Professional — Software Designer and you did not work in this occupation as claimed.
- Consequently, it appears that incorrect answers have been provided to the questions in the application forms and bogus documents have been submitted in support of the nominated occupation for the Skilled — Independent (subclass 175) visa.
- Specifically, on pages 1, 11, 12 and 13 of the `General Skilled Migration Applicant Form' and page 5 of Form 80 — `Personal particulars for character assessment', when the questions were answered in relation to your past employment and educational qualifications, by stating you had obtained a Master in Computer Sciences qualification from the American International College in 2000 and that you had worked as a Software Engineer and Senior Software Engineer for the company, Lycetech' from February 1998 to January 2009.
- As it appears you are not qualified in the nominated occupation `Computing Professional — Software Designer' and you have not worked in this occupation with ‘Lycetech' as claimed in the visa application, it is considered that there has been non-compliance by you with section 101(b) of the Act because in support of the application, the above incorrect answers were provided on the associated application forms.
- Further, on page 16 of the `General Skilled Migration Applicant Form', under `Declaration for all applicants' where it is stated `Warning: Under the Migration Act 1958, there are penalties for deliberately giving false or misleading information', this statement was acknowledged by selecting "Yes". By answering "Yes" to the above declaration, you agreed to provide correct, accurate and up-to-date information in the visa application, but it appears you have failed to do so.
- It is also considered that there has been non-compliance with section 103 of the Act because in support of the application, it appears the following bogus documents were submitted:
- It appears that the above documents are bogus documents within the meaning provided by paragraph (b) of section 5(1) of the Act — `is counterfeit or has been altered by a person who does not have authority to do so' because the Department completed an integrity check which revealed that these documents are fraudulent.
- That the applicant obtained her Bachelor of Medicine and Surgery qualification from the Allama Iqbal Medical College in 2000: meaning that she would have been studying both unrelated courses simultaneously whilst still working as a Software Engineer for Lycetech.
- That the claim Lycetech has split into two separate companies – ‘The Lyceum’ and ‘The Lahore Lyceum’ is false and perusal of the website for “The Lyceum School’ shows whilst it provides detailed information of the history of the school, there is no mention of its affiliation with Lycetech, The Lyceum or any sister company in the IT/software area.
- That a google search of ‘The Lyceum’ and ‘Lycetech’ brought up a website for ‘Lycetech Education Services’ and whilst the website is copyright from 2009, the website was created on 11 February 2018 and does not appear to be genuinely active and that the Director of the ‘Lycetech’ company is the applicant’s sister Maria Umer.

On 31 March 2020 the applicant responded to the Tribunal’s s.359A invitation. The applicant through her representative stated that the applicant’s response and supporting documentation provided to the delegate in her response to the 27 September 2018 Notice of Intention to Consider Cancellation should be incorporated by the Tribunal as the applicant’s response. Further commentary was also provided in relation to the claimed AIC qualification; the existence of Lycetech; a “dob-in” concerning the applicant’s husband (which the Tribunal has not given adverse weight to); and the Tribunal’s potential exercise of its discretion.
The Tribunal has noted the response of the applicant to the NOICC dated 23 October 2018. The applicant disputed the allegation there was non-compliance as set out in the Notices. The applicant provided a statutory declaration where she set out the circumstances in which she claimed to have completed her studies and worked as a Software Engineer and subsequently a Senior Software Engineer. The applicant clamed the issues concerning the validation of her Masters degree from the American International College were explained by the institution utilising old stationary.
The applicant made further written submissions in relation to a number of matters that had neem put to them under s.359A in her response to the Tribunal of 31 March 2020. The applicant denied her claimed qualification from the American International College was fraudulent. The applicant asserted that the delegate’s decision to dismiss the document as both “fraudulent” and “could not be verified” was contradictory, unreasonable and claimed the inability of the delegate to verify a document did not make the document necessarily false. The genuineness of the qualification was claimed due to the promotion of the applicant by the company Lycetech in 2000 on the basis of such a qualification; and the fact that verbal confirmation of her attendance at the course could be obtained, it was claimed, from her former teacher whose phone number had been provided but he had never been contacted. The applicant also disputed the finding by the delegate that it was not possible that a letter would have been issued by the American International College on 4 April 2016 verifying her Master of Computer Sciences qualification given the American International College campus at `New Garden Town' has been closed some years earlier, stating that the affidavit of Mr Tahir Mahmood of 15 October 2018 stated he had in fact obtained the verification at the Faisal Town branch (that is, not the New Garden Town branch) . The applicant claimed these explanations were disregarded and evidence such as the affidavit of Mr Tahir Mahmood and the evidence that may have been able to be supplied by the applicant’s former teacher, were all disregarded.
The applicant disputed the findings of the delegate in relation to Lycetech and the delegate’s efforts in verifying the company’s existence were “logically flimsy”. The applicant has stated that the delegate provided no records as to whom the Department spoke to at Lycetech in their integrity checks. The applicant claimed furthermore that it was not even clear the Department had contacted the correct institution given the original Lycetech institution split, it is claimed into two in 2010.
The applicant through her representative asserted that the claim Lycetech did not exist was contrary to the findings of the overseas post that Lycetech had instead split into two entities, The Lahore Lyceum and The Lyceum: and The Lyceum was linked to Lycetech. The applicant claimed that the post had received confirmation that The Lyceum existed and the company’s tax records – which the delegate did accept were legitimate - that were submitted illustrated the company was genuine and active. The applicant complained that the delegate had selectively relied upon evidence before her and it was indicative she had a predetermined view of this case.
At the hearing of 10 December 2020 the applicant provided oral testimony to the Tribunal consistent with her written submissions.
The applicant stated that she had attempted to get her qualifications of a Bachelor degree from Punjabi University as well as her American International College (AIC) qualifications verified as part of the process to acquire Australian Citizenship. She stated that the Punjabi University qualifications had been verified but the AIC qualifications were not. She stated that efforts had then been undertaken in 2016 to contact the AIC again to verify the documentation pertaining to her previous studies and qualifications by a friend of her husband who resided in Pakistan.
The Tribunal noted at the hearing that a ‘verification letter’ purportedly from the AIC dated 4 April 2016 from the American International College stating the applicant had completed a Master of Computer Sciences in 2000, as well as an affidavit dated 15 October 2018 from Mr Tamir Mehmood stating he presented at the AIC on 1 April 2016 to obtain the letter had been asserted as evidence of the applicant’s studies. The Tribunal noted that this ‘verification letter’ said it was from the New Garden Town Campus, despite the fact the Department’s verification checks stated the campus had been closed for over five years by the time of the ‘verification letter’. The applicant agreed that in 2016 there was no New Garden Town Campus. She stated that Mr Mehmood had gone and acquired the letter from another AIC campus. The Tribunal asked the applicant why the AIC would issue Mr Mehmood with a letter and enquired as to any existence of correspondence from the applicant giving Mr Mehmood authority to acquire the letter. The applicant maintained a verbal request had been sufficient. The applicant also stated that she had never studied at that particular AIC campus but instead had attended the Faisaltown campus.
The Tribunal notes the oral testimony of the applicant’s husband Mr Shah who at the hearing asserted the applicant’s claims to have studied at the AIC between 1998 and 2000 and acquire a degree were all genuine. The applicant and Mr Shah were together during this period.
The Tribunal has considered the evidence before it but is not satisfied that the claimed Master of Computer Sciences from the American International College in the name of the applicant is genuine. The Tribunal considers the ‘verification letter’ dated 4 April 2016 that was purportedly issued by the ‘New Garden Town Campus’ is a bogus document. The Tribunal notes that it is not disputed that the ‘New Garden Town Campus’ of the AIC closed some years prior to the date of the verification letter. The Tribunal does not accept the applicant’s claims that the qualification is explained by the AIC possibly utilising old stationary and considers the claim implausible. Similarly, the Tribunal gives the affidavit of Mr Mehmood dated 15 October 2018 claiming he visited the AIC offices no positive weight and considers it has been contrived to support the applicant’s claims pertaining to her alleged Master of Computer Sciences qualification.
The applicant claims to have been promoted Software Engineer to Senior Software Engineer in October 2000 based upon the successful completion of the Master of Computer Sciences at the AIC. The applicant has drawn the Tribunal’s attention to correspondence from the Manager of Lycetech, Mr Ghulum Abbas, dated 17 October 2018 which asserts that the applicant was promoted specifically after she completed her Masters studies at AIC. Mr Abbas has stated the qualification is genuine. The Tribunal notes that the applicant’s family has extensive links with the Lycetech company and accepts that the applicant had some involvement with the company whilst she was in Pakistan. The Tribunal does not however give the correspondence from Mr Abbas any positive weight. The Tribunal’s significant doubts as to the genuineness of the claimed AIC qualification extend to any document subsequently produced purportedly supporting the existence of such a qualification. The Tribunal considers the claim that the use of AIC ‘New Garden Town Campus’ letterhead was still being utilised over five years after the college closed is quite frankly implausible. The credibility of such a claim was stretched when also considering the claimed AIC qualifications of the applicant’s husband Mr Shah. Whilst the Tribunal recognises Mr Shah’s application is a separate and independent case for review, at the applicant’s hearing the Tribunal noted that Mr Shah’s own AIC qualifications of a Bachelor of Business and a Master of Business Administration were each misspelt – each testamur referring to BUSSINESS – despite there being a gap of some years between each qualification allegedly being acquired. The errors arising in the official documentation of what is purported to be a legitimate higher educational institution are almost comical and, in the Tribunal’s opinion, speak to the authenticity of the applicant’s qualification.
On 1 March 2021 the applicant through her representative wrote to the Tribunal. In relation to the claimed AIC qualifications of the applicant and Mr Shah, it was noted that whilst some of the documentary evidence of their studies “may give rise to some questions about genuineness”, that the Tribunal take into account the following information:
a) Pakistani documentation in general does not conform to the standards that are generally expected of Australian documents or those of other developed countries.
b) The AIC was a private college which operated over time from several different locations in Lahore. The explanation that letterhead from one location might have continued to be used after the college had moved premises is not implausible in this context.
c) The deregistration of the college several years after they claim to have studied there is irrelevant.
d) In Dr Umer's (the applicant’s) case, leaving aside the genuineness of the documents, the Australian Computer Society accepted that a qualification from the AIC at the time she studied there was sufficient to qualify her as an IT professional at the time of her application.
These submissions do not satisfy the Tribunal as to the considerable doubts it holds to the genuineness of the AIC qualifications of the applicant. Whilst the Tribunal accepts that Pakistani documentation may not always have the same quality – and ease of verification- as many Australian documents, in the Tribunal’s opinion the documentation (and the supporting statements) purporting to be evidence of the applicant’s AIC qualification is entirely unsatisfactory. The Tribunal simply does not accept the explanations pertaining to letterhead and considers the assertions of the applicant and her husband as witnesses implausible.
In relation to the decision of the Australian Computer Society to accept the claimed qualification from the AIC as genuine, the Tribunal recognises this assessment that was undertaken on 8 December 2008. The Tribunal nevertheless notes it has had access to extensive documentation -arguably considerably more extensive than that of the ACS – pertaining to the AIC via the applicant’s visa application and supporting submissions. The Tribunal recognises the ACS decision but, in the context of the Tribunal’s much broader concerns and evidence before it concerning the AIC claimed qualifications, gives the recognition little positive weight.
The Tribunal notes the claim that the deregistration of the AIC several years after the applicant (and her husband) ceased studying is irrelevant. The Tribunal notes this refers to the AIC being blacklisted on 28 March 2006 and added to the list of illegal and fake institutions in the Punjab region. The Tribunal does not consider this an irrelevant matter. Whilst the AIC may only have been deregistered from this specific date, the Tribunal considers the deregistration speaks to the genuineness of the institution and its courses prior to the date of deregistration. Given the extensive and serious concerns expressed by the Tribunal in this decision record – from incorrect letterhead to misspelt testamurs – the Tribunal has grave and significant doubts as to the genuineness of any claim that the applicant studied for and completed a Masters of Computer Sciences at the AIC between 1998 and 2000, as asserted at the hearing and to the Department previously. The Tribunal retains those same doubts as to the subsequent ‘corroborative’ evidence that has been submitted from individuals such as the friend of Mr Shah that claims to have attended the AIC to obtain verification of the studies or the claim by the Lycetech employee that the applicant was promoted on the basis of her qualification in 2000.
The Tribunal has also considered the applicant’s evidence in relation to the Lycetech company she claims to have worked as a Senior Software Engineer for almost a decade prior to travelling to Australia. The Tribunal acknowledges the difficulties in navigating the evidence presented from all parties pertaining to the Lycetech company and the applicant’s previous involvement with such an organisation from the perspective as a Software Engineer.
At the hearing the Tribunal discussed the applicant’s claims concerning Lycetech and the assertion it was split between The Lyceum and the Lahore Lyceum after she departed the company. The applicant claims that Lycetech and its facilities were moved to The Lyceum at this time. The Tribunal has considered the claims made in the delegate’s decision record, the Tribunal’s s.359A invitation and the applicant’s response both in submissions and in oral testimony as to the existence of Lycetech.
The Tribunal’s principal area of focus concerning the Lyceum pertains to whether the company existed between 1998 and 2009 and whether the applicant was working for this company initially as a Software Engineer and subsequently as a Senior Software Engineer as she claimed. Integrity checks in recent years have focused upon the challenges in obtaining evidence pertaining to the company at the present day, and those challenges have undoubtedly played an important role in generating significant doubts as to whether the company existed – and the applicant was in the roles she has claimed – between 1998 and 2009.
The Tribunal considers the evidence that has been submitted pertaining to the existence of Lycetech is sparse. Given the applicant claims to have worked for almost a decade for Lycetech, the Tribunal is surprised at the lack of evidence that has been submitted which would enable it to be satisfied of the veracity of the applicant’s claims. The Tribunal accepts that the applicant has provided a tax return for Lycetech in 2018 and its tax status is active. The Tribunal gives this some positive weight. The Tribunal notes the involvement of the applicant’s family, in particular her father, in the Lycetech company both in Pakistan and previously in the Australian operations. The Tribunal ultimately on the evidence is prepared to accept that there was a company called Lycetech that operated in Pakistan during the time the applicant claimed to be working for the business. The Tribunal does not however accept that the applicant was working as a Software Engineer, and subsequently as a Senior Software Engineer, for Lycetech between 1998 and 2009. The fact that her family may have established and operated a company does not subsequently make any claim that that company was actively involved in the computer software area and the applicant was working in a senior engineering role genuine.
The Tribunal notes that between 1994 and 1999 the applicant was at medical school, studying to complete a Bachelor of Medicine and Surgery qualification at the Allama Iqbal Medical College. The applicant was successful and the Tribunal accepts qualified as a medical doctor – a role she very actively holds today. At the hearing the Tribunal asked the applicant whether she was concurrently studying medicine, studying for a Master of Computer Sciences at the AIC and working as a Software Engineer for Lycetech in 1998 and 1999. She said she was and stated that she was able to do so via evening classes and timetabling. The Tribunal considers the applicant to be a very learned, motivated and educated individual, but on the evidence before it considers the applicant’s explanation to be implausible. The Tribunal’s oral testimony on this matter was supported by that of her husband Mr Shah, but, given the Tribunal holds very significant doubts as to the genuineness of both of their claimed academic qualifications from the AIC, the Tribunal similarly harbours significant doubts and concerns as to whether the applicant was working in the software engineer sector as claimed for almost a decade. The absence of any evidence of her work as a Software Engineer before the Tribunal – despite being employed for almost a decade – beyond supportive correspondence drafted for the purpose of this application and review causes the Tribunal to hold grave doubts as to the genuineness of her claim, and the authenticity of the supportive evidence that has been submitted as “evidence” that the applicant was working for Lycetech as claimed. The Tribunal asked the applicant about her work for Lycetech over 9 years in the computer programming areas. The Tribunal discussed her role in enterprise business planning and spoke of the company doing work with the Punjab Bank but generally, the Tribunal found her oral testimony on this matter to be tenuous and vague, particularly given the length of employment claimed. The Tribunal notes furthermore that the applicant was unable to obtain any employment whatsoever in the software engineering space after being granted her visa, despite her claimed qualifications and experience. The Tribunal accepts that obtaining employment in a new country can be a challenge and notes her claim that she attempted to procure employment. No evidence of these attempts is before the Tribunal. The Tribunal nevertheless notes that the applicant instead pursued undertaking various medicine based studies to ensure her Pakistani qualifications were eligible so she could work as a doctor in Australia.
The Tribunal discussed the investigations undertaken by the Department and the findings by the Post. The Tribunal acknowledges that there was an acknowledgement that Lycetech had split into two entities at some point but making further contact to verify some of the claims made was problematic. A range of other circumstances such as the lack of a website address on the company letterhead has been held up as evidence that confirms the broader claim as to the existence of Lycetech. The Tribunal, despite the vague and tenuous evidence before it is prepared to accept that Lycetech the company did exist and, given the involvement of the applicant’s family in the company, the applicant was involved in some way in the company between 1998 and 2009. The Tribunal does not however on the evidence before it, consider that this involvement was as how the applicant and her husband have claimed: that she was working as a Software Engineer and a Senior Software Engineer between 1998 and 2009. The Tribunal considers the letter purportedly from Lycetech claiming the applicant worked in such a role for almost a decade is fraudulent and the information, even accepting Lycetech was a genuine corporate entity, is false. The Tribunal considers the more likely situation is that the company has been utilised to make a claim that the applicant was working as a software engineer, in order to enable the applicant to meet the various criteria for an occupation that was on the Skilled Occupation List (SOL) for a Skilled – Independent (subclass 175) visa at that time. The Tribunal notes that the profession of a medical doctor was not on the SOL at the time the applicant lodged her visa application.

Based on all the evidence before the Tribunal, the applicant finds that there was non-compliance with s.101(b) and s.103 by the applicant in the way described in the s.107 notice.
The Tribunal is satisfied that there was non-compliance by the application with s.101(b). The Tribunal is satisfied that the applicant provided incorrect responses in relation to her educational qualifications and workplace experience on pages 1, 11, 12 and 13 of the ‘General Skilled Migration Application Form’ she completed as part of her Skilled (Subclass 175) visa application. The Tribunal furthermore is satisfied that the applicant provided an incorrect response on page 5 of the Form 80 she submitted as part of her application “Personal particulars for character assessment’ when she submitted that she studied and successfully completed a Master in Computer Sciences at the American International College between 1998 and her graduation in 2000. The Tribunal is furthermore satisfied that the applicant provided an incorrect response on page 5 of the Form 80 where she submitted, she worked as a Software Engineer from February 1998 and subsequently as a Senior Software Engineer for the company Lycetech between 2000 and 2009.
The Tribunal is satisfied that there was also non-compliance by the application with s.103. The Tribunal is satisfied that the applicant provided bogus documents as part of her Skilled (Subclass 175) visa application. The Tribunal considers the documents to be ‘counterfeit’ as defined by s.5(1)(b) of the Act. These documents include the Certificate of Qualification from the American International College for the applicant’s Master of Computer Sciences (D1, Folio. 18) studies between 1998 and 2000. The Tribunal considers this document to be bogus and counterfeit, as it is not satisfied the applicant has genuinely studied and completed a Master of Computer Sciences between 1998 and 2000 as claimed. Furthermore, the Tribunal is not satisfied that the AIC genuinely existed as an educational institution as claimed.
The Tribunal also considers there was non-compliance in the application with s.103 in relation to the correspondence from Mr Asdim Imran claiming that the applicant worked for Lycetech as a Software Engineer from February 1998 before being promoted to the position of Senior Software Engineer, a position he claims that she held from 2000 till 2009. Whilst the Tribunal accepts that the company Lycetech may have existed, the Tribunal does not accept on the evidence before that it was a software company where the applicant worked for nearly ten years as a Software Engineer as claimed in the correspondence.
The Tribunal considers that other ‘counterfeit’ documents have been submitted in support of the application for the purpose of supporting the false assertions pertaining to the applicant’s qualifications and employment history. The Tribunal is satisfied that these documents are non-compliant with s.103, including:
·the correspondence from the Manager of Lycetech Mr Ghulam Abbas dated 17 October 2018 stating the applicant worked as a Software Engineer from 1998 and was promoted to Senior Software Engineer in 2000 after successfully completing her Master in Computer Sciences at the American International College in Lahore;
·The “verification letter” from the American International College’s New Garden Town campus dated 4 April 2016; and
·Mr Tahir Mehmood’s statement dated 15 October 2018 attesting to his attendance at the American International College on 1 April 2016 to have the applicant’s documentation verified as authentic on her behalf.
For these reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
· the correct information
On the evidence before the Tribunal, the correct information is that the applicant did not study for and successfully complete a Master of Computer Sciences at the American International College in Lahore between 1998 and 2000 as she has claimed. The correct information furthermore is that the applicant did not work as a Software Engineer and then as a Senior Software Engineer for Lycetech between 1998 and 2009 as she has claimed.
The Tribunal is of the firm opinion that the applicant’s Computer Sciences qualifications and her employment for nine years have each been fabricated in order to meet the requirements at the time for the grant of a Skilled (subclass 175) Visa on 7 November 2011. The Tribunal notes that the occupation “Computing Professionals – Software Designer” was listed at the time of application on the Skilled Occupation List for a Skilled (subclass 175 visa). The Tribunal notes that the applicant’s occupation as a medical doctor and as a “General Practitioner” was not on the approved SOL at the time of application (only being added subsequently).
The Tribunal also, as discussed at the hearing, considered it curious that the applicant failed to include her medical qualifications on her application forms at the time of application. The Tribunal is satisfied that the applicant is a fully qualified and skilled medical practitioner and finds it concerning that the qualifications were not conceded on her application. The Tribunal considers the failure to include such information speaks to an attempt to mislead the delegate as to the applicant’s genuine educational and occupational background.
The Tribunal is of the view that the provision of the correct and genuine information in relation to an applicant’s educational qualifications and past employment background is critical in the assessment of a visa application. The Tribunal considers the applicant was granted her Skilled (subclass 175) visa on the provision of a wide range of incorrect information and bogus documentation. The Tribunal furthermore considers the provision of such false information and documentation impacts adversely upon the credibility of the applicant. The Tribunal gives this consideration significant weight in favour of cancelling the visa.
· the content of the genuine document (if any)
On the evidence before the Tribunal, the applicant in her Skilled (subclass 175) visa application submitted a number of documents, that the Tribunal is satisfied, are bogus documents within the meaning of s.5(1)(b) of the Act.
The Tribunal considers the documentation submitted by the applicant purportedly from the American International College of a Master of Computer Sciences degree in her name is false or a counterfeit document, as is the ‘verification letter’ of the qualification from the ‘New Garden Town’ campus of the American International College dated 4 April 2016.
The Tribunal, whilst accepting the company Lycetech did exist in some fashion, considers the correspondence that has been submitted from Lycetech officers claiming the applicant worked as a Software Engineer from 1998 and then in 2000, after graduating with the Master of Computer Sciences degree at the AIC, was promoted to Senior Software Engineer is a deliberate falsity.
The Tribunal considers the affidavit of Mr Tahir Mehmood dated 15 October 2018 claiming to have visited the AIC to have the applicant’s qualification verified on 1 April 2016 is a further bogus document.
The Tribunal has considered the applicant’s explanation concerning the discrepancies in the relevant documentation submitted by the applicant as summarised elsewhere in this decision record, but is not satisfied these explanations adequately explain what the Tribunal considers are significant falsities in the documents submitted as part of the explanation and subsequently as part of the review process.
The Tribunal is of the firm opinion that the applicant was granted the Skilled (subclass 175) visa based on the bogus documents that were submitted as part of the application, in particular the Master of Computer Science degree from the AIC and the Lycetech correspondence that claims the applicant worked for the company for almost as a decade as a Software Engineer and as a Senior Software Engineer.
The Tribunal considers the applicant was granted her Skilled (subclass 175) visa after the provision of a wide range of bogus documentation. The Tribunal furthermore considers the provision of such false information and documentation impacts adversely upon the credibility of the applicant. The Tribunal gives this consideration significant weight in favour of cancelling the visa.
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal notes that the grant of a Skilled (subclass 175) visa is reliant upon the applicant satisfying a range of criteria pertaining to both their previous employment in a “skilled occupation” (as defined in Part 1, Division 1.2 of the Regulations) and their ability to meet a qualifying score whereby an applicant is assessed and provided a score based on points for particular attributes. These attributes include relevant academic qualifications and work experience.
The Tribunal notes that Regulation 175.211(a) states that an applicant must have been employed in a skilled occupation ‘for at least 12 months in the period of 24 months ending immediately before the application was made’ whilst Regulation 175.221 requires that the applicant has a qualifying score ‘based on the prescribed number of points for particular attributes’.
The Tribunal is satisfied that as part of her application, the applicant provided a range of incorrect information and bogus documentation that was directly relevant to the criteria for the grant of the Skilled (subclass 175) visa. The claimed Master of Computer Sciences qualification from the AIC as well as the claimed nine years of experience working as a Software Engineer and Senior Software Engineer in the Lycetech correspondence was of direct relevance to the grant of the Skilled (subclass 175) visa and the applicant meeting the relevant criteria, including the points required to meet the relevant qualifying score.
The Tribunal is satisfied that the provision of both incorrect information and bogus documentation pertaining to the applicant’s educational qualifications and work experience as previously summarised directly led to the applicant being granted a Skilled (subclass 175) visa. The Tribunal is satisfied that failing to provide this information and documentation would have precipitated a situation whereby the applicant did not meet the qualifying scores and subsequently did not meet the criteria for the grant of the visa. The evidence before the Tribunal suggests that without the submission of this incorrect information and bogus documentation, the Tribunal would not have met Regulations 175.211 and 175.221 and their application would have been refused by the delegate. The Tribunal weighs this consideration in favour of cancelling the visa.
·The circumstances in which the non-compliance occurred
The applicant discussed the circumstances of lodging her Skilled (subclass 175) visa application on 27 January 2009. She stated that she and her family initially arrived in Australia in fact on a subclass 457 visa in October 2011. She stated that she and her family could have remained on a 457 visa. The applicant maintained that all the documentation she submitted as part of her Skilled (subclass 175) visa was correct and the verification conclusions reached by the delegate were incorrect.
The applicant has continued to maintain that all the information she submitted as part of her Skilled (subclass 175) visa application: including her claimed qualifications of a Master of Computer Sciences at AIC and almost a decade working as a software engineer are entirely correct. The applicant maintains the documentation subsequently provided verifying such documentation is similarly correct and genuine. The Tribunal recognises the firm advocacy of the applicant and her witnesses on this matter. Nevertheless, the Tribunal does not agree and is not satisfied that the information she provided was correct. The Tribunal is of the opinion that bogus documentation has been submitted as part of the application and review process. The Tribunal is of the opinion that false information and bogus documentation was supplied by the applicant to the Department in order to meet the requirements for a “Computing Professionals – Software Designer” occupation that was on the Skilled Occupation List at the time of application. At the hearing the Tribunal noted that the applicant had failed to include her medical qualifications on her application. She replied that she did not consider such information to be relevant. The Tribunal is not satisfied with this answer and considers the more likely explanation for the omission of such information was to not draw the delegate’s attention to the applicant’s significant qualifications – and the likelihood she would pursue employment opportunities in other areas of employ that were not included on the Skilled Occupation List.
The Tribunal furthermore notes that the applicant has not worked in the occupation of a “Computing Professional – Software Designer” at any time since arriving in Australia. At the hearing the applicant claimed this was because she was rejected for having no local experience and her only possible option was to then pursue registration in Australia as a medical practitioner in order to earn an income and survive. Whilst the Tribunal accepts that obtaining employment in her nominated occupation may have been at least initially a challenge, the lack of any evidence of genuine efforts that were undertaken to acquire employment locally in this field speaks to the Tribunal’s concerns as to the authenticity of the applicant’s claimed Masters-level qualification and her extensive claimed experience.
The Tribunal finds that the applicant provided in her visa application both incorrect information and bogus documentation that provided the grounds for the cancellation of the applicant’s visa. The Tribunal weighs the circumstances in which the non-compliance arose as a consideration in favour of cancelling the visa.
·The present circumstances of the visa holder
At the time of decision, the applicant and her family have been living in Australia for a decade. The applicant and her family reside on the Central Coast. The applicant and her husband own their own home and are heavily involved in their local community. The applicant is a well-respected local General Practitioner working in a medical centre in a low-income area of significant need.
At the hearing the applicant discussed her work as a doctor in a deprived area of NSW. She works full-time, continued to do so during the height of the COVID-19 pandemic and works on Saturdays. The manager and owner of the medical practice where the applicant works, Dr Gorniak, also appeared before the Tribunal and made a written statement attesting to the value the applicant provides to the local community as a much-revered and respected local doctor. A wide range of other local medical professionals have made written statements attesting to the applicant’s work as a doctor and the high regard she enjoys in both the local profession and with her patients.
The Tribunal notes the applicant’s previous submissions where she discusses the shortages of GPs in regional areas and the demand for qualified female medical practitioners from a diverse background. The Tribunal is satisfied that the applicant is adding significant value to the local community through her work as a GP. The applicant has pointed out the monumental task facing the medical profession with the roll out of the COVID-19 vaccine and the challenges being faced with limited number of medical professionals. The Tribunal agrees with her submissions, and accepts the applicant has a key and critical role to play in the roll out of the vaccine in a deprived area of real need. The Tribunal notes that medical practitioners, whilst not on the Skilled Occupation List at the time of application, are now listed on the relevant legislative instrument for the grant of a Skilled (Independent) visa. The Tribunal weighs the applicant’s ongoing work as a medical practitioner in her community heavily against cancelling the visa.
The Tribunal notes the evidence that the applicant and her family are well-established in their local community. The applicant and her husband have maintained a mortgage for many years and appear to be integrated into the local Central Coast community.
The applicant’s two daughters Miss Marwa and Miss Safa Shah also provided oral testimony at the hearing. Miss Marwa had just completed her Higher School Certificate studies whilst Miss Safa had completed Year 10. The girls have been educated at Central Coast Adventist College. Both have spent the majority of their lives in Australia and are assimilated into Australian society. Neither read or write Urdu and both claim to only have a bare knowledge of the spoken language. They have visited Pakistan once over the last decade for a few days, an experience both felt uncomfortable with. The Tribunal found both the applicant’s daughters to be articulate and motivated students with a firm desire to continue their studies beyond school and acquire their own qualifications as a doctor and a veterinary surgeon respectively.
The Tribunal finds that the applicant plays an important current role in her local community and will continue to do. On top of her profession, she is also the mother and carer of two daughters that are assimilated into Australian culture and are each at a very important point of their lives in relation to their education both at the school and tertiary level. The Tribunal has considered the applicant’s employment, family and social ties in Australia and her present circumstances. The Tribunal weighs this consideration heavily against cancelling the visa.
·The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act

After receiving the NOICC, the Tribunal notes that the applicant provided further documentary evidence from the Manager of Lycetech Mr Ghulum Abbas and an affidavit from Mr Tamir Mehmood attesting to the genuineness of the applicant’s claims to have worked in the software engineer sector for almost a decade as well as successfully completed a Master of Computer Sciences at AIC. The Tribunal considers these documents contain further false or incorrect information, merely attempting to confirm the authenticity of evidence the Tribunal firmly considers to be non-genuine. The applicant and witnesses such as her husband have continued to claim at the hearing and in writing the genuineness of the applicant’s claims in relation to this information that was found to be false and the documentation found to be bogus.
The Tribunal is disappointed this is the case. The Tribunal is satisfied that the relevant documentation and evidence that was submitted by the applicant in relation to her qualifications and employment is demonstrably false. The Tribunal considers the applicant’s continued assertion of the genuineness of this information – and submitting further ‘evidence’ in support of this information – demonstrates a level of disdain and disregard towards Australia’s migration law. The Tribunal has found the applicant to be an impressive and articulate witness that is playing an important role in her local community. The Tribunal therefore finds her continued willingness to claim the genuineness of such information which the Tribunal considers to be clearly incorrect or bogus, of significant concern. The Tribunal weighs this consideration in favour of cancelling the visa.
·Any other instances of non-compliance by the visa holder known to the Minister
On the evidence before the Tribunal, the applicant has provided false and misleading information as part of her visa application through the documentation and responses pertaining to her claimed qualifications and employment experience. The Tribunal considers this evidence is relevant to its assessment whether there was an element of fraud or deception by the applicant which has attracted the operation of PIC4020(1): Trivedi v MIBP [2014] FCAFC 42. The Tribunal considers the provision of false and misleading information to the Department in the applicant’s Skilled (subclass 175) visa involved an element of fraud or deception on the part of the applicant.
The Tribunal’s findings and reasons about whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority of a Medical Officer of the Commonwealth therefore are as follows. The Tribunal relevantly notes Schedule 4 of Public Interest Criteria 4020, which in part highlights:
·A ‘bogus document’, as defined in s.5(1), i.e. a document that the Tribunal reasonably suspects is a document that:
·purports to have been, but was not, issued in respect of the person, or
·is counterfeit or has been altered by a person who does not have authority to do so, or was obtained because of a false or misleading statement, whether or not made knowingly.
And/or
·‘information that is false or misleading in a material particular; as defined in PIC 4020(5), i.e. information that is:
·false or misleading at the time it is given, and
·relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
·in relation to the visa application or a visa held in the 12 months before the visa application was made.
There is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’ as defined in s.5(1)(b) and/or information that is false or misleading in a material particular’ as defined in PIC 4020(5). This evidence includes:
·The Certificate of Qualification from the American International College for the applicant’s Master of Computer Sciences (D1, Folio. 18) studies between 1998 and 2000.
·The correspondence from Mr Asdim Imran claiming that the applicant worked for Lycetech as a Software Engineer from February 1998 before being promoted to the position of Senior Software Engineer, a position he claims that she held from 2000 till 2009.
There is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth information that is false or misleading in a material particular’ as defined in PIC 4020(5). The Tribunal thus finds that the applicant thus gave ‘information that is false or misleading in a material particular’ to the Department as defined in PIC4020(5). This information, the Tribunal considers, is false or misleading in a material particular because this information – which claims the applicant holds a Master of Computer Sciences qualification and worked as a software design engineer for almost a decade – is central in the assessment of the claim of the applicant that they met the criteria for qualifications and employment experience for the grant of a Skilled (Subclass 175) visa as required by the Regulations. The information pertaining to the applicant’s qualifications and experience would have been relevant to the assessment of whether the applicant does in fact meet the criteria for the grant of the visa as required by the Regulations. Therefore, the visa applicant does not meet PIC 4020(1).
The Tribunal furthermore notes the applicant’s attempts to continue to maintain the false information through the subsequent submission of further evidence the Tribunal considers false such as:
·the correspondence from the Manager of Lycetech Mr Ghulam Abbas dated 17 October 2018 stating the applicant worked as a Software Engineer from 1998 and was promoted to Senior Software Engineer in 2000 after successfully completing her Master in Computer Sciences at the American International College in Lahore;
·The “verification letter” from the American International College’s New Garden Town campus dated 4 April 2016; and
·Mr Tahir Mehmood’s statement dated 15 October 2018 attesting to his attendance at the American International College on 1 April 2016 to have the applicant’s documentation verified as authentic on her behalf.
The Tribunal weighs this consideration in favour of cancelling the applicant’s visa.
·The time that has elapsed since the non-compliance
The instances of non-compliance occurred when the applicant lodged her Skilled (subclass 175) visa application on 27 January 2009. The applicant and her family have resided in Australia since 1 October 2011 and over a decade have understandably developed considerable ties to Australia on a social, familial and economic basis. The applicant’s daughters have completed almost all of their school education in Australia and are well integrated into local life. The applicant herself has established a career as a doctor in a disadvantaged part of regional Australia. Given these factors, the Tribunal weighs this consideration against cancelling the applicant’s visa.
·Any breaches of the law since the non-compliance and the seriousness of those breaches
At the hearing the applicant said she had not been in breach of the law since the non-compliance. There is no evidence before the Tribunal to the contrary. Given this, the Tribunal weighs this consideration against cancelling the applicant’s visa.
·Any contribution made by the holder to the community
The Tribunal notes the evidence that has been provided of the applicant’s significant contribution to the local community as a well-respected and regarded General Practitioner. The applicant’s colleague and the manager of the medical centre where she works, Dr Mariusz Gorniak, provided oral testimony at the hearing where he spoke of the applicant’s integrity, character and her contribution to the community. Dr Gorniak presented a compelling case of the applicant’s efforts in what is a deprived area of regional NSW with significant shortages of qualified medical professionals. As manager of the practice, Dr Gorniak expressed his concerns for both patients and the centre if the applicant’s visa was to remain cancelled. It was pointed out that the centre bulk bills to enable the local community to access health care as needed.
A range of further evidence endorsing the applicant’s contribution to the community was presented by medical specialists that have worked with the applicant over the last five and more years. These included Dr Amrou Metawa and Dr Shashinder Singh who in their submissions discussed the essential role the applicant plays in the community, especially during the COVID-19 pandemic.
At the hearing the applicant also talked about her involvement in a range of charitable endeavours.
The Tribunal places significant weight on the applicant’s work as a general practitioner in an area of regional NSW that faces genuine economic hardship and finds it difficult to attract qualified and skilled medical professionals to the area. The Tribunal accepts that the applicant is providing genuine value and a meaningful contribution to the local community as a doctor. The Tribunal places significant weight on the imminent widespread rollout of the COVID-19 vaccine and the key role the applicant and her colleagues at the medical centre will play in ensuring Australians receive and enjoy the benefits of the vaccine. The Tribunal weighs this consideration concerning the contribution of the applicant to the community heavily against cancelling the visa.
Whether there would be consequential cancellations under s.140
The applicant confirmed at the hearing there were no dependent visa holders as part of her visa. The applicant’s daughters and husband each held individual s.155 visas in their own right. The Tribunal therefore finds that there will be no consequential cancellations under s. 140 if the visa is cancelled. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

100. The applicant has not applied for refugee status or invoked Australia’s protection obligations.
101. The applicant in her submissions both oral and written has however raised a range of concerns pertaining to her two daughters Miss Marwa who is 17 years of age, and Miss Safa who is 16 years of age at the time of decision. Both the applicant’s daughters appeared before the Tribunal to provide testimony. The best interests of the applicant’s two daughters as children has been a consideration.
102. The Tribunal notes there is considerable conjecture about best interests of the child (BIOC) and whether it is a primary consideration in visa cancellations. Ministerial Direction No 63, which applies to cancellation of Bridging E Visas where the grounds in r. 2.43(1)(p) or (q) (which include criminal charges), directs decision-makers to treat BIOC as a primary consideration. For other Part 5 and 7 cancellations, there is no such Direction in force, but the Department’s Visa Cancellation Instructions instruct delegates to treat BIOC as a primary consideration.
103. It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28]
104. At the hearing the Tribunal put the applicant on notice that it would be treating the best interests of the child – namely her two daughters - as a primary consideration in its deliberations in this review. The Tribunal acknowledges the integrity of the family unit is an important consideration in any cancellation of a permanent visa.
105. The applicant spoke about the closeness of her family and intimated that her visa application would invariably lead to the departure from Australia by her daughters. The Tribunal accepts that the most probable situation should the applicant’s visa be cancelled and she returns to Pakistan, then that would also lead to the departure of her daughters who the Tribunal accepts have a close and loving dependent relationship with their mother.
106. The applicant discussed her concerns for her daughters if they returned to Pakistan with her. She stated her ongoing priority was the safety of her daughters. She expressed considerable concern about their potential return to Pakistan after spending most of their lives in Australia where they had been educated, had their friends, and were entirely assimilated into Australian society. She spoke about a brief visit the family made to Pakistan in 2016 where the girls were shocked and confronted by the expectations they faced as young women and the pressure they received concerning matters such as their Western-style of dress. The applicant stated that Miss Marwa and Miss Safa are unable to write or read Urdu.
107. At the hearing Miss Marwa discussed just completing the Higher School Certificate after attending Central Coast Adventist School since Year 7. She spoke about the support the applicant provided her and her sister as a working parent and the challenges the family faced balancing employment and caring for children. Miss Marwa spoke about her ambitions for university in 2021 and her concern that if she returned to Pakistan then she would have to re-sit her final year of school as well as try and learn to read and write in Urdu if she wanted to study at the tertiary level and have a career.
108. Miss Safa spoke about just completing Year 10 at Central Coast Adventist School. She said, having lived in Australia most of her life, that Australia was her true home. She spoke about her dependency on her parents and her fears of the impact of losing her mother back to Pakistan. Miss Safa spoke about her visit to Pakistan a number of years ago and stated she had not enjoyed the experience.
109. The Tribunal found Miss Marwa and Miss Safa to be articulate and genuine witnesses, both with great ambitions for their future education and careers and both integrated into the Australian lifestyle. They have spent most of their lives in Australia, have been educated in Australia, and both claimed they want to contribute to the nation in their future lives, Miss Marwa as a doctor and Miss Safa as a veterinary surgeon. The evidence suggests both are excellent students and Miss Marwa has been offered a range of tertiary placements at Australian universities in 2021. Her ability to accept these offers has been impacted adversely by her own visa cancellation, a cancellation generated by the cancellation of her mother the applicant’s visa.
110. The Tribunal considers there would be considerable hardship upon Miss Marwa and Miss Safa if the applicant’s visa was to remain cancelled. If it is cancelled and the girls return to Pakistan with their mother, they will have to walk away from their education in Australia at a critical time of their lives: Miss Marwa about to enter university, Miss Safa about to commence Year 11. Neither writes nor reads Urdu, meaning that their education will be further setback. The applicant’s daughters furthermore will have to reintegrate into Pakistani culture and society at a difficult time in their lives. Both are integrated into local Australian culture and society, having spent their formative years living on the Central Coast and for a year in Queensland whilst their mother the applicant was completing a medical internship. The Tribunal is satisfied that reintegration into Pakistani society, as young educated women who have spent most of their lives in a Western liberal culture, may cause them a significant degree of dislocation and hardship.
111. Even if Miss Marwa and Miss Safa were not to depart Australia, the applicant’s departure would cause them significant and onerous hardship. They are both children, living with their parents. They have never lived away from their mother. Miss Safa has just commenced Year 11 and is already focused on her HSC studies. Miss Marwa will be commencing her university studies. The loss of their mother off-shore would have, the Tribunal accepts, a considerable detrimental impact upon each daughter on a range of levels: emotionally, practically and financially. Their father’s visa has also been cancelled by the delegate, meaning if they remained in Australia, they would have to rely upon other family members for practical support at a challenging time of their lives.
112. The Tribunal accepts the applicant’s submission that removal of Miss Marwa and Miss Safa to Pakistan would be devastating for the girls developmentally, culturally and personally.
113. The Tribunal has considered the best interests of Miss Marwa and Miss Safa as a primary consideration. The Tribunal weighs this factor heavily against cancelling the applicant’s visa.
Mandatory legal consequences of a decision to cancel the visa
114. The Tribunal notes that the applicant will become an unlawful non-citizen if her visa is cancelled and may be liable for detention under s189 and removal under s198 of the Act if she does not voluntarily depart Australia. The Tribunal has considered that indefinite detention is a possibility if her visa was to be cancelled. The applicant will also be subject to an s48 bar which will limit her options in applying for further visas in Australia. Depending on the visa applied, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. The applicant may also be precluded from working and may have to cease her work as a general practitioner and she may be removed to Immigration Detention upon cancellation unless granted another visa.
115. The Tribunal considers these outcomes are part of the process of events when a visa is cancelled. The Tribunal does not consider such consequences to be either unreasonable or unusual. Such processes are part of ensuring the ongoing integrity of the Australian migration system. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa
Conclusion
116. The Tribunal considers on the evidence that the grounds clearly exist to cancel the applicant’s visa: the Tribunal considers there has been clear non-compliance by the applicant with s.101 and s.103 of the Act. A range of false information and bogus documentation were supplied by the applicant as part of the application and, regrettably, subsequently. The Tribunal notes that the applicant continues to deny these documents and this information is false and claims the genuineness of her Master of Computer Sciences qualification, her studies at the AIC, as well as work as a software engineer for almost a decade. The Tribunal has considered the evidence and submissions made but remains entirely unsatisfied as to the authenticity of these claims and this documentation. The Tribunal is disappointed that the applicant, a well-respected and admired medical practitioner in her local community, has continued to make these assertions.
117. The Tribunal nevertheless considers that, in its totality, the weighing up of the various considerations, means that her visa should nevertheless not be cancelled. The Tribunal considers the applicant’s provision of false information and bogus documentation as part of her application over 12 years ago is ultimately outweighed by the considerations before the Tribunal.

118. The most striking of these considerations is the best interests of the child: or in the applicant’s case, her two daughters Miss Marwa and Miss Safa. As discussed previously, both have spent most of their lives in Australia, were educated here, and are entirely integrated into Australian society. Both are at an important, formative point of their lives: the Tribunal sees little purpose or utility in uprooting them from their lives in Australia. They have always lived with their mother and there is clearly a strong dependency relationship between the parties. The Tribunal accepts that cancellation of the applicant’s visa would have a significant adverse impact upon the best interests of Miss Marwa and Miss Safa, even if somehow, they remained in Australia whilst their mother departed for Pakistan. The Tribunal has treated the best interests of the child as a primary consideration and has given this consideration considerable weight in deciding the visa should not be cancelled.
119. The Tribunal has also given considerable weight to the present circumstances of the applicant and her contribution to the community. The Tribunal notes the evidence before it of the applicant’s significant contribution to her local community as a full-time medical practitioner in an area of regional NSW that has significant needs and shortages in the area of medical professionals. The COVID-19 pandemic and the imminent rollout of a vaccine have highlighted the critical role medical professionals play in our community. The applicant now for some years has played an invaluable role in her community at providing bulk-billed medical services in a low-income area. She worked throughout the COVID-19 pandemic in continuing to support the community and is ready to do so in what will be a monumental task of rolling out a vaccine. The Tribunal notes that GPs appeared on the Skilled Occupation List after the applicant lodged her Skilled (Subclass 175) visa. The Tribunal today accepts the applicant plays an important ongoing role in her community as a GP.
120. The Tribunal furthermore notes that over 12 years have now elapsed since the application for a Skilled (subclass 175) visa was lodged by the applicant. In the intervening period the applicant’s daughters have been educated in Australia, integrated into local culture and their mother has played an active and positive role as a GP in a regional area with significant shortages of medical professionals. On balance, especially given the interests of the applicant’s daughters being weighed as a primary consideration, the Tribunal considers the applicant’s visa should not in such circumstances be cancelled.
121. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
122. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Justin Owen
Senior 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.

[2021] AATA 1338

10 March 2021

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