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Dodging a Bullet: Cancellation of 189 Visa Set Aside by Tribunal!

Migration cases can have a wacky, winding, crazy, tortured history, can’t they?

Our colleague Rajinder Bassan has brought just such a case that he recently handled to our attention, Khurana (Migration) (2017) AATA 1031 (19 June 2017).

This was the history:

The applicant had been granted a Subclass 189 – Skilled Independent visa on the basis of a skills assessment that had been done by Engineers Australia (side note: if you have ever dealt with the skills assessment process at Engineers Australia, you will understand the meaning of the word “torture” – it seems more arduous than getting an engineering degree in the first place!).

The case came before the Tribunal after the Department cancelled the applicant’s 189 visa under section 109(1) of the Act on the basis that he had given incorrect answers in his visa application about whether he held a valid skills assessment, and had provided a bogus document to Engineers Australia.

If it sounds problematic and possibly hopeless, keep reading!

What happened was that the applicant had originally applied for the 189 visa on 8 December 2014.

In support of that application he provided to the Department a skills assessment letter dated 4 August 2014.  That letter had said that the applicant had been assessed as meeting the academic requirements for standing as a Professional Engineer in Australia.

The visa was granted to the applicant on 6 March 2015.

However, on 12 October 2016, Engineers Australia wrote to the Department and to the applicant to advise that the applicant’s skills assessment was invalid due to plagiarism. It was asserted by Engineers Australia that the applicant’s discussion of his “career episodes” that formed a part of the application for the skills assessment had been copied, either from a standard reference work or from another client’s application.

The Department then proceeded to issue an infamous “NOICC” – Notice of Intention to Consider Cancellation – on 11 November 2016. This NOICC asserted that the applicant had provided a bogus document from Engineers Australia to the Department dated 8 December 2014 (as a matter of fact, 8 December 2014 was the date the visa application was made; again the purportedly bogus document from Engineers Australia was actually dated 4 August 2014.

Here’s another twist: Engineers Australia dent the letter asserting that the applicant’s career episodes had been plagiarized to his previous address in India, even though at the time that letter was issued he was living in Australia.  Apparently the applicant did not become aware of the letter from Engineers Australia claiming that his application for skills assessment had been plagiarized until he received the NOICC from the Department.

Here’s yet one more twist: On 3 May 3017, the applicant provided the Tribunal with a letter from Engineers Australia regarding a re-assessment of the applicant’s skills.  This letter advised that on the basis of the engineering competencies that had been demonstrated in the application for skills assessment and on the basis of his holding a bachelor’s degree, the applicant met the requirements for the occupation of Professional Engineer.

So, how did the Tribunal resolve this somewhat convoluted mess?

It set aside the cancellation of the applicant’s 189 visa.

The Tribunal was not satisfied that at the time that the applicant had lodged his visa application, the skills assessment was a “bogus document” within the meaning of section 103 of the Migration Act.  The Tribunal took this view because it was not until more than 2 years after the initial August 2014 skills assessment letter that Engineers Australia concluded that the original skills assessment was not valid.

So at the time that the application was made, the skills assessment had not been determined to be invalid. 

Furthermore, the Tribunal considered that both at the time of the application in December 2014, and then at the time of the Tribunal hearing in June 2017, the applicant did in fact have a positive skills assessment.  Therefore, the Tribunal was not satisfied that the applicant had given incorrect information or that he had submitted a bogus document to the Department.

And therefore there were no grounds for cancelling the visa under section 109(1).

The moral here is that at the time that the applicant had submitted his 189 application, the skills assessment from Engineers Australia was completely valid, and was not an untruthful or bogus document and the later re-assessment which found that the skills assessment had been based on plagiarized material did not retrospectively make it so.

Congratulations to Rajinder for this excellent result! You must have a very appreciative client!

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  • Guest
    Devinder Kaur Friday, 14 July 2017

    Dear sir,
    You need to fix the date in your article.
    "Here’s yet one more twist: On 3 May 3017, the applicant"

    Great work Rajinder Singh Bassan. The case was definitely convoluted.
    Took a while for me to figure it out. Don't know how you do it!

    Awesome work in helping out a client. Keep the good work going.
    Congratulations to Rajinder Singh Bassan

  • Guest
    Gagan jeiji Monday, 17 July 2017

    Congratulation Rajinder. Your client must've been so thankful.

  • Guest
    Howard Murdoch Wednesday, 19 July 2017

    Good Outcome

Leave your comment

Guest Friday, 22 September 2017
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