Case Archives: Clients with Fake Names Led to Citizenship NOICC
We specialize in complex cases and surprisingly ‘fake name’ has been a popular theme with our clients. Here are some of our successful stories.
Pseudonyms are used to protect their privacy.
You’ll find more stories on Individual Client Testimonial and Google Review.
Case #1: Permanent Resident with a Fake Name
What Visas Were Cancelled?
In 2017, we were approached by Client A, who received three (3) Notices of Intention to Consider Cancelling (“NOICC”):
NOICC No. 1 relates to the permanent visa he held at that time, a Resident Return visa (subclass 155).
NOICC No. 2 relates to his father’s permanent visa, a Global Special Humanitarian visa (subclass 202).
NOICC No. 3 relates to his mother’s permanent visa, a Global Special Humanitarian visa (subclass 202).
Timeline of Events
Client A arrived in Australia as an authorized arrival in June 2009, without any form of identification and was therefore refused immigration clearance and detained. He applied for a Protection (subclass 866) visa which was granted in September 2009.
In March 2010, his father lodged an offshore humanitarian visa, proposed by Client A. His mother was included as the secondary applicant. Both their permanent visas were approved in March 2013.
In May 2014, he applied for a Resident Return visa (subclass 155) which was granted 18 days later, in that same month. Four (4) days later, he lodged an Australian Citizenship application which was approved in November 2014.
But approximately 3 years later, the Citizenship approval was cancelled in August 2017.
In June 2018, he received a NOICC with 14 calendar days to comment on the Department of Immigration’s allegations.
What Were The Grounds For Cancellation?
Client A’s NOICC was about 20 pages long. The Department alleged that Client A used his brother’s identity when he entered Australia to obtain his Protection visa back in 2009. The Department alleged that Client A concealed his real identity because immigration records showed that back in 2006, Client A had already applied for a refugee visa which was refused.
The NOICC No. 1 revealed a long and elaborate investigation, going as far back as 2009 where they discovered that Client A used his brother’s passport to board an Etihad flight to travel to Australia. The Department spent a significant period of time analysing Client A’s activity on Facebook, as well as his friends and family.
The Department compared photograph images and analysed information Client A provided the Department in the various applications he had made, including the application he submitted for proposing his parents’ refugee visa, and found inconsistencies.
Out of the many instances the Department identified, they ultimately chose the grounds that Client A failed to declare that he had been known by another name in his Protection visa application.
What Cancellation Powers Were Used?
Providing incorrect information to the Department enlivens several types of cancellation powers. Under the policy, case officers are instructed to choose the cancellation power which presents as being the easiest to prove and with the most disadvantages to a visa holder.
For example, providing false and misleading information carries a maximum term of imprisonment, of up to 10 years under section 234 of the Migration Act. If convicted of a term of imprisonment of 12 months or more, leads to cancellation powers under section 501 of the Migration Act.
Section 116(1AA) is another cancellation power available to the Department. It reads:
“Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.”
Sections 133A and 133C are some of the other powers.
However, in Client A’s circumstances, the Department chose to go with a Subdivision C power which allows the Department to cancel any visa, regardless of when the offence occurred, irrespective of whether they no longer hold that questionable visa. The respective provisions are:
Section 101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
Section 107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(c) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(d) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
The Parents’ PR
The Department used the same grounds and cancellation powers on Client A’s father and mother respectively.
The Department claimed that information provided in connection to the application made by Client A as the proposer in their Global Special Humanitarian visa (subclass 202) had incorrect details.
Our Strategy & How Did We Win?
This case was won with a combined strategy of poking holes in the power used by the Department and a loophole found within the laws.
The effect of having a visa cancelled is that the former visa holder would be barred from applying for another visa. Additionally, providing false and misleading information about the visa they currently hold results in a different type of bar, preventing them from being granted another visa (PIC 4020). Therefore, before their visas were cancelled, we applied another PR for them and chose one that did not contain the PIC 4020 legal requirement.
Additionally, on a technicality, we managed to identify errors made by the Department, which effectively caused them to have ‘spent’ the Subdivision C cancellation power and can no longer re-use the same cancellation power in future.
Author’s Note
The above case is not intended as legal advice. It has been summarized down to key points. Each cancellation case requires its own tailored strategy, and we encourage you to seek the assistance of an immigration practitioner.