The Federal Circuit Court of Australia has upheld the decision of the Administrative Appeals Tribunal cancelling the 189 visa of an Indian citizen who had submitted a ‘bogus’ document of his English competency.
The Tribunal had found that “the applicant provided false information in his visa application in that he stated that he was proficient in English language, which was not correct.”
AAT affirmed the decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the applicant’s visa.
The 189 Skilled Independent Visa is a permanent visa allowing the applicants to remain indefinitely in Australia with full work rights without sponsorship by a State/Territory Government or relative in Australia.
The Federal Circuit Court found no error in this decision and dismissed the applicant’s appeal to review the decision. He was also ordered to pay the cost of the case fixed in the amount $5,600.
The applicant, Mr Patel, is a citizen of India. He received a Subclass 189 Skilled – Independent visa on 30 April 2015.
According to the Federal Circuit Court’s decision, “when making the application for the visa, the applicant stated that he had undertaken an English language test on 10 January 2015 and was graded as “proficient”.
However, the Department of Immigration and Border “received information that the test taker score with the reference number given by the applicant was invalid and the scores had been cancelled.”
The department cancelled Mr Patel’s visa determining his score report to be a ‘bogus’ document.
Mr Patel challenged the department’s decision in the Administrative Appeals Tribunal.
The Tribunal found that the test report form with Mr Patel’s name and reference number was invalid, and his scores were cancelled.
According to AAT’s decision, “…an analysis of the scores of the applicant in his 10 January 2015 test, indicated that there was substantial agreement between his answers on one or more scored sections of the test and those of other test-takers. This suggested that the applicant may have had unauthorised access to the test forms administered on 10 January 2015 and/or the answer keys for the test form.”
Mr Patel, however, denied knowledge about any cheating.
However, the Tribunal found out that Mr Patel had appeared for three English-language tests, one in 2006 and two in 2009, but could not achieve a minimum score required for the visa. He confirmed he did not have adequate English for a temporary visa.
“It raised its concerns that the applicant, in the past, was unable to achieve the scores required for competent English, yet he claimed in his visa application that he had proficient English,” AAT noted in its decision.
Mr Patel acknowledged that he had not achieved competent English in 2009, but that was a long time ago, and he claimed that he had been preparing for the test while working in his home town. Therefore he appeared for the test six years later and achieved a ‘proficient’ score.
The Tribunal was not satisfied that the applicant had proficient English as he had claimed in his visa application.
“…a security analysis of his scores had properly concluded that he may have had unauthorised access to the test forms administered on the day of his test and/or the answer keys for the test form,” AAT said in its decision.
The Tribunal also noted that while the applicant had educational qualifications in Information Technology, he worked in an unskilled job in a supermarket.
Overall, the Tribunal concluded that the applicant’s visa should be cancelled after considering all relevant factors.
Appeal to the Federal Circuit Court
Mr Patel challenged AAT’s decision in the Federal Circuit Court on eight grounds, including his claim that he had not provided any ‘bogus documents’ or incorrect information in his visa application.
“My test result is not invalid, and I have not misled the department. This is a totally wrong allegation on me,” he said in his appeal.
He appeared before the Court unrepresented and requested the assistance of an Interpreter.
The Federal Circuit Court Judge Humphreys noted, “Contrary to the applicant’s claims, there was considerable evidence before the Tribunal that the applicant had not been honest when he claimed to have proficient English. This included the applicant’s own evidence and that of the ETS analysis.”
Judge Humphreys dismissed Mr Patel’s application.
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