Balasubramaniyan (Migration)

[2019] AATA 2505

Balasubramaniyan (Migration) [2019] AATA 2505 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Abirami Balasubramaniyan

CASE NUMBER:  1831503

DIBP REFERENCE(S):  BCC2018/3953009

MEMBER:Kira Raif

DATE:25 March 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 25 March 2019 at 9:50am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) – Subclass 476 (Skilled – Recognised Graduate) – applicant did not comply – bogus academic transcript – information was provided without her knowledge – whether the non-compliance was deliberate or inadvertent – not satisfied that the applicant had taken adequate steps to ensure her application was correct – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 98, 100-105, 107, 109, 111, 140, 351
Migration Regulations 1994 (Cth), cl 476.212, r 2.41, Public Interest Criterion 4020

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 June 1989. He was granted the Skilled Recognised Graduate Class VF visa on 17 January 2018. The visa was to be in effect until 18 August 2019. On 8 October 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 her response to the NOICC and her visa was cancelled on 12 November 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 26 February 2019 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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? 

6. 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.

7. The Tribunal is satisfied that the Notice contains sufficient particulars to enable the applicant to identify and address the issues. 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?

8. 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.

9. 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 15 November 2017.

   b.In her application form, in response to a question about her post-secondary qualifications, the applicant stated that she completed a Bachelor of Mechanical Engineering at Sri Ramakrishna Engineering College at Coimbatore between August 2013 and May 2017. Prior to that she completed a Diploma of Mechanical Engineering at Sri Ramakrishna Polytechnic College between July 2009 and April 2012.

   c.The applicant signed a ‘declaration for all applicants’ as part of the application form confirming that she provided complete and correct information in every detail on the form and any attachments.

   d.In support of her visa application the applicant provided a Consolidated Statement of Grades from Sri Ramakrishna Engineering College dated 4 May 2017.

   e.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 17 January 2018.

   f.The Department conducted integrity checks regarding the applicant’s qualifications. The Department identified that the academic transcript for the bachelor of Mechanical Engineering which the applicant provided with her application has been identified as containing identical scores, grades and dates as other known bogus academic transcripts provided by other applicants, with personal identifies being altered to match the applicant’s personal identifiers.

10. In her written response to the NOICC, a copy of which she provided to the Tribunal, the applicant concedes that she did not study at Sri Ramakrishna Engineering College. She provided evidence of having graduated from Annamalai University where she obtained a degree in a Bachelor Engineering in Electronics and Communication. She also obtained a Master of Technology in Communication Systems at B.S Abdul Rahman University. The applicant states that she had approached an agent to prepare her visa application and provided the agent with genuine education documents and signed the form and paid a fee to the agent. The agent specifically told her not to complete the form and she did not write down any information on the form. The applicant states that she was not aware of the agent providing fraudulent information and she has not been able to contact the agent since. She did not know about the submission of bogus documents until she received the NOICC and she was shocked by it. The applicant provided to the delegate and subsequently to the Tribunal evidence of her Indian qualifications, and other documents. The applicant also provided to the Tribunal various educational documents from Annamalai University, personal identity documents and other material.

11. In oral evidence the applicant confirmed that she did not attend Sri Ramakrishnan College and stated that the information was provided without her knowledge. It was not until she received the NOICC that she realised that the agent had provided ‘irrelevant studies’.

12. The applicant’s evidence indicates that she had not obtained a Bachelor of Mechanical Engineering at Sri Ramakrishna College of Engineering as a result of study between August 2013 and May 2017. The applicant studied at a different institution. On the basis of this information, the Tribunal finds that the Consolidated Statement of grades from Sri Ramakrishna College of Engineering is a bogus document either within the meaning of s. 5(a) because it purports to have been, but was not, issued in respect of the applicant, or within the meaning of s. 5(b) because it is counterfeit or has 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.

13. The Tribunal further finds that on the application forms, in response to questions about her qualifications, the applicant gave an incorrect answer by stating that she had completed a Bachelor of Mechanical Engineering at Sri Ramakrishna College of Engineering. The Tribunal finds that the applicant completed his application form in a way that incorrect answers were given. The Tribunal further finds that applicant declared in her application that the information provided in the application was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.

14. The Tribunal acknowledges the applicant’s submission that she did not provide the bogus qualifications to the agent or the Department and that she was unaware of the fraud which was committed by the agent before receiving the NOICC. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers and bogus documents was done without her knowledge. However, the Tribunal is of the view that by instructing the agent to prepare and lodge the application for her, and paying the fees for the service, the applicant created an agency arrangement between herself and the agent preparing her application.

15. Further, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s. 98 of the Act states that if the applicant did not fill in her application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Section 100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s. 111 states that sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers or bogus documents.

16. 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. She did not comply with s. 103 of the Act.

17. 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?

18. 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).

19. 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

20. The correct information is that the applicant did not complete the Bachelor of Mechanical Engineering at Sri Ramakrishna Engineering College at Coimbatore between August 2013 and May 2017. Her evidence to the delegate and the Tribunal is that she completed a Bachelor Engineering in Electronics and Communication at Annamalai University and a Master of Technology in Communication Systems at B.S Abdul Rahman University. The correct information is that the applicant has completed different qualifications at different institutions and not the one she referred to in her visa application.

    The content of the genuine document (if any)

21. The Tribunal has found that the Consolidated Statement of Grades is a bogus document. A genuine document would not indicate that the applicant obtained a Bachelor of Mechanical Engineering at Sri Ramakrishna Engineering College.

    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

22. To be granted the visa, the applicant was required to complete a prescribed type of qualification at a prescribed institution. Information and documents about the applicant’s educational qualifications were central to assessing her eligibility for the visa for the purpose of cl. 476.212.

23. In oral evidence to the Tribunal the applicant confirmed that she graduated with an engineering degree but said she completed the Bachelor course in 2010 and Masters in 2012. The applicant confirmed that she graduated more than 24 months before the application was made and that she would not have met the visa requirements if she knew about it.

24. Further, the applicant would have been required to meet PIC 4020 before she could be granted the visa and if it was known that the applicant gave information that was false or misleading in a material particular and a bogus document with her application, the assessment against PIC 4020 would have been more thorough.

25. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information and on a bogus document.

    The circumstances in which the non-compliance occurred

26. In her response to the NOICC and submissions to the Tribunal the applicant states that she approached an agent and paid the fee to obtain the visa. She followed instructions from the agent in preparing the documents and signing the forms. In oral evidence, the applicant referred to her studies and her past employment. She said she approached an agent and asked the agent what she could apply for. The agent told her he would apply for a working visa but not did not explain her what visa category she could apply for.

27. In oral evidence the applicant told the Tribunal that she had given all the genuine documents to the agent and she never met the agent in person. She did not know what was submitted on her behalf. She said she signed the declaration on the blank form because the agent told her she could not make any mistakes. She said that the agent acted for many other clients and she trusted the agent. The applicant states that if she knew that the agent would provide bogus documents, she would have told them not to proceed but she was cheated by the agent.

28. The applicant told the Tribunal that she did ask the agent what they were applying for and they told her it was a ‘working visa’ but did not give her any other details. Because she had no information, she could do any checks. The applicant said that she did not have an IMMI account and could not check online. Once she was granted the visa, she checked that it was valid but not the visa requirements.

29. The Tribunal accepts that the applicant had approached an agent and paid for the service. Nevertheless, the Tribunal finds the applicant’s submission problematic. The Tribunal is of the view that the applicant had both the responsibility and ample opportunities to learn what evidence was being submitted on her behalf. The applicant could have made a request to check the completed application before its lodgement. She could have insisted on the forms being completed before signing the forms, rather than sign the blank forms.

30. The Tribunal is mindful that the issue is not only the provision of bogus academic qualifications but also an answer on the application forms and the applicant could have easily checked the forms before signing and before the application was submitted. The applicant states that on agent’s instructions, she signed the blank form but did not complete it. In the Tribunal’s view, the applicant had the responsibility to check the form to ensure that any information that was being submitted on her behalf – and which had been signed by her – was correct and accurate. It is not apparent that the applicant had taken any such steps.

    The present circumstances of the visa holder

31. The applicant told the Tribunal that she works in MiniFab Electronics as a Quality Controller, which is related to her engineering studies. She has been given leave for a few months while she had no work rights and now that she has work rights again, she will be resuming her employment. The applicant states that her company may be able to sponsor her as it is difficult for the company to find a replacement but she has not discussed it with the company. The applicant states that she intends to apply for a subclass 489 visa or a permanent Skilled visa or a Student visa in the future and does not want a ‘black mark’ against her name.

32. The Tribunal granted time to the applicant to explore the opportunity of sponsorship and a future visa application. On 24 March 2019 the applicant informed the Tribunal that she was unable to obtain confirmation from her employer that she could be sponsored for another visa. In such circumstances, the Tribunal is not satisfied on the evidence before it that at present, the applicant has a reasonable chance of obtaining another visa onshore.

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

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

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

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

    The time that has elapsed since the non-compliance

35. The application for the visa was made in November 2017. Approximately 15 months passed since the non-compliance.

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

36. There are no known breaches of the law.

    Any contribution made by the holder to the community.

37. The applicant refers to her past employment and payment of taxes and other bills. The Tribunal accepts that evidence.

38. 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

39. 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 she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she 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 applicants from making a valid visa application without the Minister’s intervention.

    Whether there would be consequential cancellations under s.140

40. There are no persons whose visas would be subject to cancellation under s. 140.

    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.   

1. There are no children who would be affected by the cancellation.

2. The applicant told the Tribunal that her family do not know that her visa has been cancelled. If they find out, her uncle would harm her because she submitted bogus documents. The Tribunal found the applicant’s claims vague and far-fetched and the Tribunal does not accept that the applicant’s uncle would ‘torture’ her because of her Australian visa issues. In any case, the Tribunal is mindful that the applicant is eligible to make an application for a protection visa where her claims would be assessed. The applicant told the Tribunal that she does not want to apply for a protection visa because she wants to be truthful with Immigration.

3. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

4. The Tribunal finds that Australia’s international obligations would not 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

5. The applicant told the Tribunal that when she could not work, she had no money and had to sell her jewellery. She had no money for food. She is now able to return to work and she is confident the company will sponsor her for a visa.

6. The applicant’s representative refers to the ‘bigger picture’ of having agents in India who defraud students and it is unclear whether the High Commission verifies the documents. The representative submits that the applicant is a victim and there is a large number of students in the same circumstances and this warrants an investigation. With respect, the Tribunal is not in the position to conduct any such investigation and it is not the role of this Tribunal to do so. The representative submits that the cancellation of the visa would ruin the applicant’s future career and visa applications.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had answered the questions on the application form in a way that incorrect answers were given and that she has given bogus documents with the application. The applicant has not complied with s. 101 and 103 of the Act. The Tribunal accepts the applicant’s evidence that she relied on an agent to prepare her visa application but the Tribunal is not satisfied that the applicant had taken adequate steps to ensure her application was correct. The Tribunal accepts that the applicant is settled in Australia and hopes to remain in Australia and maintain her employment. The Tribunal accepts that the cancellation may cause some hardship to the applicant, particularly as it may affect the applicant’s future visa options. There are no other known instances of non-compliance and no other breaches of the law.

8. Against these considerations, the Tribunal is mindful that the visa in question is a temporary visa which was not intended to allow the applicant permanent or even long term residence in Australia. If the applicant wishes to remain in Australia, she is required to apply for a different visa. The Tribunal places significant weight on the fact that the applicant would not have been entitled to the visa if the correct information was known. In the Tribunal’s view, this consideration outweighs other factors.

9. 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.

10. The applicant has requested the Tribunal to refer her application to the Minister pursuant to s. 351 of the Act. The Tribunal has considered the request but decided not to do so.

    DECISION

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

    Kira Raif
    Senior Member