The Direction to visa decision-makers under s499 of the Migration Act 1958 (Cth) builds on existing law, including mandatory cancellation powers in s501 of the Act providing that a person’s visa must be cancelled if they have been sentenced to 12 months or more in prison.
The Direction applies to decision-makers within the Department of Home Affairs who are considering the cancellation or refusal of a visa under s501 of the Act or who are considering the revocation of a mandatory cancellation of a visa under s501CA.
The Direction is binding on departmental decision-makers and the Administrative Appeals Tribunal. In considering a case, the decision-maker or AAT member must consider all crimes against woman and children as serious and abhorrent crimes, regardless of the length of sentence imposed by the courts.
The Direction further specifies that in these circumstances, individuals should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
The Home Affairs media release states that under the previous Government (in five years between 2009 and 2013) 582 visas were cancelled under the character provisions in s 501 of the Act. The current Government has cancelled over 4150 visas of foreign criminals.
Three recent AAT Decisions are
Navab Esfahani and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4221 - AAT affirmed the Home Affairs’ decision to refuse Australian citizenship to the applicant finding he did not pass the character due to his past conduct.
Nkali and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 76 - AAT affirmed the Home Affairs’ decision to refuse to grant Australian citizenship to the applicant. The applicant did not satisfy the general residence requirement because he was an unlawful citizen a year prior to their application.
QSNT and Minister for Home Affairs (Citizenship) [2019] AATA 24 - AAT set aside the Home Affairs’ decision to refuse to grant Australian citizenship to the applicant. The primary issue was whether the AAT was satisfied of the applicant's identity.A perspective on identity documentation is provided in Lee v R [2019] NSWCCA 15, one of those judgments that specifically refers to the manufacture of fake IDs.
The judgment notes
Michael Lee (“the applicant”) was sentenced in the District Court at Sydney on 28 June 2018 after pleading guilty to the following four counts on an indictment:
“1 [O]n the 17th day of December 2015, at Campsie in the State of New South Wales, did possess an Embossing machine, Fargo card printer, Fargo HDP colour ribbon, blank cards, blank cards with black magnetic strip, blank cards with blue magnetic strip, laminator, computer hardware and clear film designed/adapted for making a false document, knowing that it is so designed/adapted and intending that the said Embossing machine, Fargo card printer, Fargo HDP colour ribbon, blank cards, blank cards with black magnetic strip, blank cards with blue magnetic strip, laminator, computer hardware and clear film will be used to commit the offence of forgery. ...
2 Between the 1st day of July 2015 and the 18th day of December 2015, at Sydney in the state of New South Wales, did deal in identification information relating to 33 persons, with the intention of facilitating the commission of an indictable offence, namely fraud. ...
3 [B]etween the 1st day of July 2015 and the 18th day of December 2015, at Sydney in the state of New South Wales, did deal in identification information relating to 26 persons, with the intention of facilitating the commission of an indictable offence, namely fraud.
Factual background
In July 2015 the Identity Security Strike Team (“ISST”) commenced Operation DRAX to investigate the manufacturing and distribution of fraudulent identity documents. At about 6.15am on 16 December 2015 police executed a search warrant at the applicant’s residence. During the search, items including blank card stocks, blank cards with magnetic strips used with Medicare cards, an embossing machine, computer equipment containing images of NSW Driver’s Licences, a ‘Fargo’ card printer, printer colour ribbon, clear film, laminators and electronic data storage devices were located.
The investigation revealed the applicant and co-offenders were engaged in an operation whereby orders for fraudulent documents would be placed by Mohammed with Cao. Cao would relay orders to Zhang for a fee. The orders would then be forwarded to Yeoh who arranged for documents to be manufactured by the applicant. After the fraudulent documents were produced, they were transferred in reverse order until they reached Mohammed. These fraudulent documents were then used to approach financial institutions, in order to obtain loans and credit cards.
On one occasion, Abraham Maka, an associate of Mohammed, attended the Marrickville branch of the National Australia Bank and obtained a personal loan of $24,500 using the false identity of “Vinod Sam”. Cao remained in telephone contact while Mohammed was at the bank and throughout the entire transaction. The money was paid into a nominated bank account of Maka and at the time of sentencing had not been recovered by the Bank.
Over the course of about six months, the co-offenders operated in a criminal group, each with a different role. The applicant, in his role, produced approximately 34 sets of false identification documents with which loans were obtained amounting to a sum of $595,821.43. ...
In an unsworn statement, the applicant accepted that he made false documents and did so due to his financial difficulties. He stated that he did not know the co-offenders other than Yeoh, who would order the false documents and provide him with a list of names, personal details and other specifications. The applicant would then make the products and Yeoh would pay him $300 for a false Driver’s License and $100 for a false Medicare card. He apologised to the court for his offence which he said was “serious and unforgiveable”.
At the time of sentence, the applicant was 52 years old. His prior criminal history disclosed that he was sentenced to 6 years imprisonment with a non-parole period of 3 years 6 months in the District Court at Sydney, on 23 November 2001, for attempting to obtain possession of an imported prohibited drug, namely not less than the traffickable quantity applicable to methylamphetamine.
Some findings by the judge
The judge found that the dealing with information charges revealed a sophisticated and organised criminal operation. His Honour noted that the orders for fake Driver’s Licenses and Medicare cards were placed by Mohammed with Cao. The orders were then passed on to Zhang and Yeoh, before ending up with the applicant. The applicant would then make the false identification documents, which would be supplied back through the chain of people in the reverse order. His Honour observed that “...[t]his process provided some protection from detection for the persons involved in the offences”.
His Honour said that the applicant possessed and used equipment to make all the false identification documents involved in the scheme. He was paid per item: $300 for a Driver’s License and $100 for a Medicare card. His Honour observed that the documents were of high quality and were accepted repeatedly as authentic documents by a number of different persons.
His Honour found that the involvement and skill of the applicant was essential to the success of the scheme and the false identification documents were used to obtain loans that were not repaid, resulting in a loss of $595,821.43 to the banks.
