Balaji (Migration)

[2019] AATA 894

Balaji (Migration) [2019] AATA 894 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kannan Balaji

CASE NUMBER:  1831223

DIBP REFERENCE(S):  BCC2018/3820141

MEMBER:Kira Raif

DATE:6 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

Statement made on 06 February 2019 at 10:55am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – ground for cancellation – bogus documents – incorrect information in visa application – academic qualifications – consideration of discretion – grant of visa based on incorrect information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 103, 107, 109, 362B, 379A
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 476.212

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of India born in September 1992. He was granted the Skilled Recognised Graduate Class VF visa on 14 November 2017. The visa was to be in effect until 27 June 2019. On 14 August 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 and s. 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 25 October 2018. The applicant seeks review of the delegate’s decision.

3. On 28 November 2019 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 6 February 2019. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

4. No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Relevant law

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the Notice comply with the requirements in s.107? 

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal is satisfied that the Notice contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 and 103 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

    a.The applicant made the application for the Class VF visa on 24 September 2017.

    b.In his application form, in response to a question about his post-secondary qualifications, the applicant stated that he completed a Bachelor of Civil Engineering at K.S. Rangasamy College of Technology between 1 August 2012 and 30 April 2016.

    c.In support of his visa application the applicant provided

    i.a degree certificate issued in November 2016 by Anna university, stating that the applicant qualified for the Bachelor of Civil Engineering through K.S. Rangasamy College of Technology, an autonomous college affiliated to Anna University.

    ii.a Consolidated Statement of Grades for the Bachelor of Civil Engineering at KS Rangasamy College of Technology dated 22 July 2016, showing a list of courses and results completed by the applicant between December 2012 and April 2016.

    iii.Statements of Grades dated between May 2013 and July 2016 referring to the Bachelor of Civil Engineering at KS Rangasamy College of Technology.

    d.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 14 November 2017.   

    e.Information in the primary decision record indicates that

    i.The Anna University website indicates that its current ice Chancellor is Dr Surappa. An article at The Times of India dated 5 April 2018 indicates that after a nearly two year gap Dr Surappa has been appointed Vice Chancellor at Anna University. Anna University has been without a Vice Chancellor since the exit of the former Vice Chancellor Dr Rajaram in May 2016.

    ii.The applicant‘s Certificate was issued by Anna University in November 2016 and includes a signature of Vice Chancellor, even though there was no one in the role of Vice Chancellor at that time.

    iii.The Vice Chancellor’s signature on the applicant’s Certificate matches the signature of Dr Rajaram. The certificate was issued in November 2016, six months after Dr Rajaram left the post of Vice Chancellor of Anna University.

    f.With respect to the Consolidated Statement of Grades, the decision record notes that the applicant’s Statement was matched against a sample provided to the Department by another applicant who claims to have studied the same course and the same time and institution. Comparison between the graduate’s document and the applicant’s document show that

    i.The table listing the semester, course title, credits, letter grade and date of passing for all 71 subjects listed on the applicant’s documents are identical to those on the other sample.

    ii.The classification, cumulative grade point average, total credits earned and date of issue of the applicant’s document is identical to those on the other sample

    iii.Eight of the courses listed on the document appear to have incorrect date listed in the month and year of passing as the dates do not match the relevant semester the courses were undertaken in. 

11. In his submissions to the delegate of 27 August and 3 September 2018 the applicant states that he had genuinely completed a Bachelor of Engineering from Anna University and genuinely obtained the degree from the university.

12. The Tribunal does not consider the applicant’s submission to be adequate to address the concerns set out in the primary decision record. The applicant’s statement that he did complete his engineering degree from Anna University does not explain why the signature of the person who signed the applicant’s Certificate appears to relate to a person who was no longer authorised to sign such documents. The applicant does not explain why his statements of grade appears to be identical to those submitted by other students and he does not explain the errors on the documents.

13. The Tribunal considers the information contained in the primary decision record to be persuasive. The Tribunal reasonably suspects, on the basis of that evidence, that the academic records the applicant submitted with the application are bogus documents either within the meaning of s. 5(a) because they purport to have been, but were not, issued in respect of the applicant, or within the meaning of s. 5(b) because they are counterfeit or had been altered by a person who does not have authority to do so. The Tribunal finds that the applicant has given, presented, produced or provided to an officer or the Minister, bogus documents or caused such documents to be so given, produced or provided.

14. The Tribunal has formed the view that the applicant did not attend K.S. Rangasamy College of Technology between 1 August 2012 and 30 April 2016 and did not complete a Bachelor of Civil Engineering at that institution. The Tribunal finds that the applicant gave incorrect answers on the application form by stating that he completed a Bachelor of Civil Engineering at KS Rangasamy College of Technology between August 2012 and April 2016. The Tribunal finds that the applicant completed her application form in a way that incorrect answers were given.

15. The Tribunal finds that the applicant filled in or completed her application form in a way that incorrect answers were given or provided and she did not comply with s. 101 of the Act. The Tribunal also finds that the applicant gave, presented, produced or provided, to an officer or the Minister, a bogus document or caused such a document to be so given, presented, produced or provided. He did not comply with s. 103 of the Act.

16. For these reasons, the Tribunal finds that there was non-compliance with s. 101 and s. 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

17. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

18. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:

    The correct information

19. The correct information is that the applicant did not complete a Bachelor of Civil Engineering at K.S. Rangasamy College of Technology between 1 August 2012 and 30 April 2016.

    The content of the genuine document (if any)

20. The genuine document would not refer to the applicant graduating with the Bachelor of Civil Engineering from K.S. Rangasamy College of Technology.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

21. Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of her eligibility for the visa. The Tribunal finds that the decision to grant the visa was based on incorrect information and bogus documents relating to the applicant’s study.

    The circumstances in which the non-compliance occurred

22. There is little information before the Tribunal about the circumstances in which the non-compliance occurred. In his written response to the NOICC the applicant claims he did complete an engineering degree from the stated institution, a claim the Tribunal does not accept. The applicant has not provided any other information about these circumstances.

    The present circumstances of the visa holder

23. The applicant has not presented any information about his present circumstances.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

24. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the above provisions

    Any other instances of non-compliance by the visa holder known to the Minister

25. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

26. The application for the visa was made in September 2017. Approximately 17 months passed since the non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

27. There are no known breaches of the law.

    Any contribution made by the holder to the community.

28. The applicant has not presented any information to indicate that he has made a contribution to the community.

29. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

30. If the applicant’s visa is cancelled, unless she is granted another visa, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although the Tribunal acknowledges that the applicant may have limited options to make an application onshore.

    Whether there would be consequential cancellations under s.140

31. There are no persons affected by the consequential cancellation.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

32. The applicant does not claim that there are children who would be affected by the cancellation. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant presented no evidence in relation to family unit principles.

33. On the limited evidence before it, the Tribunal does not consider that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

34. The applicant has not presented any other claims or evidence.

35. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had provided incorrect answers on the application form and gave bogus documents with his application. There are grounds for cancelling his visa. There are no other breaches of the law and no other non-compliance. The cancellation would not affect another person and would not breach Australia’s international obligations. The Tribunal acknowledges that some time has passed since the non-compliance. The applicant has not presented evidence that hardship would be caused by the cancellation.

36. The Tribunal places weight on the fact that the decision to grant the visa was based on incorrect information as the assessment of the applicant’s qualifications was central to his eligibility for the visa. In the Tribunal’s view, that fact outweighs other considerations.

37. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

    Kira Raif
    Senior Member