MRT Appeal Case 1

For Blog on MRT Appeal…

Robert K Chelliah represented the applicant at the Administrative Appeal Tribunal. He  succeeded in an appeal against a decision to cancel her Subclass 885 visa in this important complex appeal case summarised below and published in the Peter Bollards newsletter for the Migration professional No.554, July 2016.

The visa was cancelled after IDP Education Ltd notified the Department that the applicant’s IELTS test results had been cancelled as it had determined that someone else sat the test for her. The test took place in India in 2012.

The applicant strongly denied the allegation and requested the Department to check her fingerprints, that were taken when she sat the test, and to also check her handwriting on test documents. These were reasonable suggestions but read what happened in the extract from the AAT decision below:

According to the Department’s file, on 3 September 2015 the Department made further enquiries regarding the reasons why it was determined that someone else sat the test and whether there was any supporting evidence (D.f.22). On 16 September 2015, IDP Education Ltd indicated that the applicant’s voice recording and handwriting taken on12 May 2012 are different from those taken on 10 March 2012 (D.f.23)

IDP Education indicated that the Quality and Compliance team retain copies of these documents and recordings. She stated that the IELTS Identity Authentication Management system does not retain copies of a person’s fingerprints as all fingerprints are converted into a binary large object and are unable to be converted to fingerprints. She also stated that she had written to the applicant on 22 June 2012 regarding this issue but the applicant had failed to respond. No evidence of the investigation was provided to the Department including evidence of the handwriting or the voice recording comparisons, the test results from 10 March 2012 or the 22 June 2012 letter.

Based on the evidence before the Tribunal, the Department never requested copies of any of documents relating to the investigation. And a further extract from the decision: 21 In circumstances where the Tribunal has not been provided with a contemporaneous report of the investigation including who undertook the handwriting analysis and voice recording comparison, has not been provided with a copy of the 22 June 2012 letter which would include details of where the letter was sent and was not provided with a copy of the 10 March 2012 test report form, the only evidence from IDP regarding its investigation and decision to cancel the applicant’s test results, is contained in a series of emails created more than 2 years after the investigation took place.

None of the documents connected to the investigation are available for analysis since they have either been destroyed or cannot be accessed due to their electronic storage method. 22. The Tribunal is concerned by the lack of details pertaining to the investigation and the fact that IDP have not been prepared to provide the applicant with further information regarding her enquiries.

The Tribunal is also concerned that documents pertaining to an investigation which could result in cancellation of an applicant’s test results and ultimately a visa, are not retained. 23. The Tribunal accepts the applicant’s evidence that she was required to provide her fingerprints at both tests prior to entering the test area and places some weight on the absence of any comparative fingerprint data. IDP itself concedes that XXX XXX is a common name and since the test was undertaken in India the Tribunal cannot rule out that there was an administrative error.

Further, if the applicant had received the letter and was aware that her IELTS test results had been cancelled, it seems improbable that she would have applied for citizenship knowing that she had not received any contact from the Department and that this application may alert the Department to this fact. 24.

On the available evidence, the Tribunal is not satisfied on that the voice recording and handwriting that IDP compared both belonged to the applicant. The Tribunal is satisfied on the available evidence that she did sit the IELTS test on 12 May 2012. There is no evidence before it to establish that she did not sit the earlier test on 10 March 2012. 25. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

A great result Robert.