Kabani v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application by Mr Allaudin Kabani ("the applicant") for judicial review of a decision of the Immigration Review Tribunal ("the Tribunal") of 10 August 1998. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"), and a further decision of the Migration Internal Review Office ("MIRO") refusing to grant the applicant a Class 816 (special (permanent)) entry permit or a Class 818 (highly qualified on-shore (permanent)) entry permit on the basis that he did not satisfy the criteria for either class of permit. Background 2 The applicant is a citizen of India who arrived in Australia on a visitor's visa in November 1989. In August 1990 he lodged an application seeking refugee status which was refused in January 1992. In August 1994 he applied to remain in Australia under the 1 November 1993 concessions announced by the Minister and submitted an application for a Class 816 and Class 818 entry permit (the subject of the present proceedings). The criteria for the grant of the two classes of visas were found in the 1993 Migration Regulations. It is not necessary for present purposes to set out those provisions. However the regulations required, relevantly, that an applicant hold certain educational qualifications. 3 In the original application to the Minister, the applicant stated that he and his wife had degrees of Bachelor of Commerce from the University of Bombay conferred on 29 October 1975 and 25 October 1978 respectively. In support of the claim the applicant provided a number of letters from the University of Bombay stating that he had passed first and second year and giving his place in the class. A further letter detailed marks that the applicant had received in various subjects. The applicant's wife submitted a copy of a Bachelor of Commerce degree from the University of Bombay, as well as numerous letters indicating her position within each year and marks for particular exams. In order to consider these documents, a delegate of the Minister made a request of the Australian High Commission, New Delhi, that an officer of the Commission attend the University of Bombay to verify the authenticity of the documents. The outcome of this inquiry was that officials at that University viewed the documents presented by the applicant as bogus. The delegate held that the applicant did not satisfy the relevant criteria and the applicant was notified of this decision on 16 September 1996. 4 The applicant applied for review by MIRO of the delegate's decision. Under a section of the application headed "Reasons why you want the decision/s reviewed" the applicant responded, relevantly, that "the Department considered that my and my wife's qualifications are bogus which is not true" and "I do confirm that my and my wife's academic qualification certificates are genuine". On 18 February 1998 the applicant was notified of MIRO's decision to affirm the decision of the delegate. The reasons accompanying the MIRO decision included the following: The applicant claims to have undertaken studies at the University of Bombay, India from 1972 to 1975 and been awarded a Bachelor of Commerce degree. The primary decision maker, following advice from the Australia High Commission and from officers from this department who interviewed the applicant, was not satisfied as to the genuineness of this degree and thus decided that the applicant did not meet the requirements of this paragraph [paragraph 816.721(2) of the Regulations]. In his application for review the applicant has stated that his degree was genuine but has provided no additional information. The applicant thus fails to meet the requirements of this paragraph. 5 The applicant then applied for review to the Tribunal providing a supporting statement which said: Both myself and my wife were interviewed by compliance section in 1996 at the Bankstown Office. It was the assumption of the officer in charge that our degree documentation we provided to support the 816 application was 'bogus'. However it is still our intention as now that we did indeed supply legal and valid documentation. 6 The applicant gave oral evidence before the Tribunal on 8 May 1998 and restated his belief that the documents relating to his and his wife's education were genuine. Following the hearing, the Tribunal undertook inquiries which were substantially the same as those which had been undertaken by the delegate, namely a request to the Australian High Commission, New Delhi, to verify the authenticity of the documents. The Tribunal may have thought it was necessary or at least desirable that it do so: see Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553. By letter dated 15 July 1998 an officer of the University of Bombay replied: With reference to your letter dated 27th May, 1998, I write to inform you that after referring to this office records, it has been found that the photo copies of the below mentioned certificates issued in respect of ARK and KKA received along with your letter are not issued by this University and the same are fake. "A photo copy each of the statements of marks at the First Year Commerce, Intermediate Commerce, B.Com. (Part I) and B.Com. degree examinations issued in respect of Mr. Allauddin Rahemtullah Kabani and in respect of Smt. Kabani Kareema A. A photo copy each of the certificate of passing the First Year Commerce, Intermediate Commerce, B.Com.(Part I) and B.Com. degree examinations issued in respect of Mr. Allauddin Rahemtullah Kabani and in respect of Smt. Kabani Kareema A. A photo copy each of the degree certificate at the B.Com. degree examinations issued in respect of Mr. Allauddin Rahemtullah Kabani and in respect of Smt. Kabani Kareema A." Yours faithfully, (SIGNED) For Controller of Examinations