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Administrative Appeals Tribunal of Australia |
Last Updated: 11 January 2022
Dukka (Migration) [2021] AATA 4923 (13 December 2021)
DECISION RECORD
DIVISION: Migration & Refugee Division
APPLICANTS: Ms Sireesha Reddy Dukka
Mr Tarun Vasu Kumar Terly
CASE NUMBER: 2106807
HOME AFFAIRS REFERENCE(S): BCC2019/4173376
MEMBER: Mary Sheargold
DATE: 13 December 2021
PLACE OF DECISION: Melbourne
DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Statement made on 13 December 2021 at 3:19pm
CATCHWORDS
MIGRATION –
cancellation – Skilled Independent (Permanent) (Class SI) visa –
Subclass 189 Skilled - Independent
– incorrect information in the visa
application – bogus documents for skills assessment – previous
employer providing
false documents – statutory declarations from former
colleagues – secondary applicant maintained skilled employment in
Australia – employers had no online presence – no non-compliance as
described – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109,
140
Migration Regulations 1994
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 Home Affairs to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).
2. The delegate cancelled the visa on the basis of their finding that the first named applicant provided bogus documents to the Australian Computer Society in order to receive a positive skills assessment for her nominated occupation of Software Engineer. 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 visa was 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 applicant.
4. The applicants appeared before the Tribunal on 2 December 2021 to give evidence and present arguments.
5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
7. 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.
8. 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.
9. 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?
10. 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 sections 101(b) and 103 of the Act in the following respects:
11. This application turns on whether or not there is sufficient evidence before the Tribunal to support a finding that the applicant gave incorrect answers in relation to her employment background and whether she obtained her skills assessment from the Australian Computer Society on the basis of false or misleading statements.
12. The Department investigated the applicant on the basis of information it received from the New Delhi Integrity Team (NDLI) showing that 28 companies operating out of Hyderabad, including the 2 companies the applicant claims to have worked for, were providing false documents for prospective visa applicants leading to positive skills assessments from organisations such as the Australian Computer Society. There is a body of evidence on the Departmental file supporting the Department’s conclusions in relation to this, some of which are subject to a non-disclosure certificate issued pursuant to s.376 of the Act.
13. Whilst the Tribunal addressed the non-disclosure certificate with the applicant at the hearing, and accepted post-hearing submissions from her representative regarding the validity of that certificate and whether or not the Tribunal should exercise its discretion to disclose the documents subject to the certificate to the applicant, the Tribunal does not deem it necessary to disclose the documents to the applicant at this time. However, it will address certain aspects of the information contained in those documents in making its findings.
14. The NDLI referred this applicant for consideration for a visa cancellation because it concluded that document fraud in India was rife, and that it had linked 28 IT companies to a single building with a single call centre, and found that the 2 companies the applicant claimed to have worked for did not have an active website at the time she claimed to have worked there. In particular, the Tribunal notes that further investigations by the Department revealed that upon calling each of the companies the applicant claims to have worked for, the Department official placing the calls asserts that the calls were answered by the same woman, who changed her name in each call, and terminated the calls on being pressed for further information about the organisations.
15. Whilst the Tribunal accepts that this raises suspicions regarding the veracity of the applicant’s employment references, the conclusions from the NDLI’s and Department’s investigations did not include any finding that the documents given by the applicant to the Department and to the Australian Computer Society were false or misleading, or bogus documents as defined. Rather, the Department relied on the circumstantial evidence outlined above in exercising its discretion to cancel the visa. The Department did not accept the applicant’s arguments in response to its Notice of Intention to Consider Cancellation that the lack of open source data showing functional websites for the 2 organisations she worked with were not determinative, and did not accept the body of primary evidence including statutory declarations from former colleagues attesting to the fact that she did in fact work for both organisations over the time periods claimed.
16. At the hearing, the Tribunal questioned the applicant regarding her education, upbringing and work experience at the 2 companies she claimed to have worked for in order to obtain her positive skills assessment. The Tribunal notes that the applicant appeared at first to be defensive and vague in some of her answers. However, upon probing the applicant regarding her motive to migrate to Australia, the applicant became emotional discussing the challenges she and her husband had faced in India due to their inter-caste marriage.
17. The Tribunal queried whether those difficulties may in fact have motivated the applicants to attempt to mislead the Australian Computer Society and the Department in order to allow the applicants to obtain permanent visas to migrate to Australia where they would no longer be subject to the community harassment and pressures they faced living in India. The applicants flatly denied this and noted they had options for migration other than Australia. In her submissions, the representative pointed out that the other applicant was also a qualified software engineer with sufficient experience for a positive skills assessment, and that it would make no sense for the applicants to jeopardise their opportunity for permanent migration over falsifying documents relating to the first named applicant’s employment experience when they could have relied on his. The Tribunal gives weight to this argument noting that the other applicant has maintained continued employment as a software engineer in Australia for several years now.
18. The applicant’s representative also argued that the fact that the 2 companies the applicant worked for had been caught up in this particular NDLI investigation did not of itself prove that the applicant did not work for the 2 companies. The representative contended that it is possible that the companies did provide false documents for others whilst the applicant in this case did in fact work for them both as claimed. The Tribunal finds this argument persuasive, especially in the absence of any clear evidence that her work references are in fact fraudulent documents. Based on the evidence available at the time of this decision, the Tribunal is prepared to give the applicant the benefit of the doubt in this instance.
19. The Tribunal assessed the applicant’s capacity to answer questions regarding her work history in both companies, including the transition from one to the other that was largely facilitated by the HR manager at the first company she worked for. Again, assessing this application on the papers, the Tribunal notes that a heightened degree of suspicion was warranted given what would likely in the Australian context be considered an unorthodox practice to assist your employer’s staff to move from one company to another without request. However, on questioning, the applicant’s answers satisfied the Tribunal that in the particular personal circumstances surrounding her need to leave the first company, it is probable that the HR manager did assist her recruitment to the second company, and does not discredit the possibility of her having worked at both companies.
20. The applicant argued to the Tribunal that in India, companies are not notified ahead of the expiration of domain names, and that if not renewed in time, the websites would be taken down and no longer accessible. The applicant argued that on payment for the domain name again, a new website had to be created. The Tribunal accepts the possibility that this occurred in the case of both companies the applicant worked for, but notes it is somewhat unlikely. However, the Tribunal does accept that it is possible that neither company had an online presence at the times the applicant worked for them. The applicant’s sworn evidence is that the first company she worked for was a start-up company, and that both companies had client bases established by the respective owners’ business contacts.
21. While there is some circumstantial evidence regarding the integrity of the companies the applicant claims she worked for, the weight of evidence before the Tribunal leans in favour of a finding that the applicant did in fact work for those companies for the time periods claimed. The applicant was able to name her colleagues, clients, and direct managers, she was able to describe her daily work, describe her recruitment for both roles, and she gave her evidence without hesitation. Based on its observations of the applicant during the hearing, the Tribunal notes it is improbable that the applicant’s evidence was so well rehearsed or orchestrated as to make it disingenuous. She has provided a number of declarations from former colleagues attesting to the fact that she worked as claimed.
22. While the Tribunal gives some weight to the fact that the applicant has not been able to contact the owners of either company in order to demonstrate that she did work for them at the times claimed, it would be unfair to the applicant for this fact to be given too much weight. Whether those 2 companies still operate today does not have a material impact on the applicant’s claimed work experience between 2008 and 2017. There is no clear evidence before the Tribunal to suggest that the work references provided by the applicant from the 2 companies are actually bogus documents, and there is no clear evidence to support the delegate’s contention that the applicant did not in fact work for the companies as claimed.
23. Therefore, based on all the information the Tribunal is not able to be satisfied that the applicant did in fact provide incorrect answers in her visa application, nor is it satisfied that she provided bogus documents to the Australian Computer Society in order to obtain a positive skills assessment for her nominated occupation of Software Engineer.
24. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa.
26. The Tribunal has no jurisdiction with respect to the other
applicant.
Mary Sheargold
Member
ATTACHMENT – Migration Act 1958 (extracts)
(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.
97 Interpretation
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).
98 Completion 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.
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.
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.
103 Bogus 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.
107 Notice 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.
108 Decision 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.
109 Cancellation 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.
[*] 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).
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2021/4923.html