Boopathi (Migration)

[2018] AATA 5257

Boopathi (Migration) [2018] AATA 5257 (23 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sathish Kumar Boopathi

CASE NUMBER:  1825231

DIBP REFERENCE(S):  BCC2018/2393128

MEMBER:Kira Raif

DATE:23 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2018 at 4:08pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – s. 107 non-compliance – bogus documents – academic qualifications – incorrect information in visa application – application prepared by migration agent – deliberate or inadvertent non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 476.212

CASES
Hasran v MIAC [2010] FCAFC 40
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 March 1996. He was granted the Skilled Recognised Graduate (Subclass 476) visa on 12 December 2017. The visa was to be in effect until 26 August 2019. On 15 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 23 August 2018. The applicant seeks review of the delegate’s decision.

3. On 8 November 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 22 November 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

   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. 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 29 October 2017.

    b.In support of his visa application the applicant provided a Consolidated Statement of Grades from Adhiyamaan College of Engineering, an institution affiliated with Anna University, Chennai.

    c.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 12 December 2017.

    d.According to the information on the Department’s file, which was the subject of the s. 359A correspondence, The Department undertook integrity checks regarding the applicant’s qualifications. The integrity check identified that the applicant’s Consolidated Statement of Grades contained identical scores, grades and dates as bogus academic transcripts provided by other applicants and the personal identifies have been made to match the visa holder’s details.

11. In his written response to the NOICC of 20 August 2018 the applicant states that he completed his Bachelor of Engineering in Civil Engineering at Mahendra Engineering College. As he did not know the migration laws, he contacted an agency LP Career Solutions and was advised to pass the English test to be eligible for the subclass 476 visa. The applicant states that he passed the English exam and was asked to provide educational transcripts and signature on some documents. He was granted the visa in December 2017 and arrived in Australia in February 2018. He did not know that his certificates had been changed by the agent until he recived the NOICC. The applicant enclosed what he claims to be his ‘genuine documents’ relating to his course completion.

12. The applicant’s evidence indicates that he had obtained his qualification from Mahendra Engineering College and not from Adhiyamaan College of Engineering. On the basis of this information, the Tribunal finds that the transcript from Adhiyamaan College in relation to the Bachelor of Civil Engineering is a bogus document 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 was altered by a person without 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 acknowledges the applicant’s evidence in response to the NOICC that he was assisted by an agent. However 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 his 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.

14. The Tribunal 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. The Tribunal finds that there was non-compliance with s. 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

15. 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).

16. 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. Briefly, they are:

    The correct information

17. The correct information is that the applicant did not attend the stated institution for the degree that is identified in his application. He has completed a qualification at a different institution and not the one he referred to in his visa application.

    The content of the genuine document (if any)

18. The genuine document would indicate that the applicant had not obtained the qualification and the grades specified by the transcript issued by Adhiyamaan College of Engineering.

    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

19. 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 his eligibility for the visa for the purpose of cl. 476.212.

20. Further, the applicant would have been required to meet PIC 4020 before he could be granted the visa and if it was known that the applicant gave a bogus document with his application, the assessment against PIC 4020 would have been more thorough.

21. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on a bogus document

    The circumstances in which the non-compliance occurred

22. The applicant provided limited information about the circumstances in which the non-compliance occurred in his brief written response to the NOICC. The applicant states that he approached an agent after completing his qualifications, followed the agent’s instructions and provided documents and signed forms as requested. The applicant states that he did not know that his certificates had been changed by the agent.

23. The Tribunal finds the applicant’s submission problematic. While the applicant may have received, and followed, advice from an agent, the Tribunal is of the view that the applicant had both the responsibility and ample opportunities to learn what evidence was being submitted on his behalf. The applicant could have made inquiries with the agent, particularly before the application was made, and he could have made a request to check the entire application before its lodgement. The Tribunal notes that the Department’s website provides information about subclass 476 visas and eligible institutions and that information was readily available to the applicant, so the applicant could determine if his qualifications met the visa requirements.

24. It is not apparent that the applicant had taken any steps to check the information and documents submitted with his visa application. The Tribunal finds that the applicant was either complicit in the actions of his agent or that he was negligent in his actions and recklessly indifferent to the agent’s conduct.

    The present circumstances of the visa holder

25. The applicant has not provided 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

26. Nothing adverse is known about the visa holder’s subsequent behaviour in relation to the above provisions.

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

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

    The time that has elapsed since the non-compliance

28. The application for the visa was made in October 2017. Approximately 13 months passed since the non-compliance.

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

29. There are no known breaches of the law.

    Any contribution made by the holder to the community.

30. The applicant has not presented any evidence of having made a contribution to the community.

31. 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

32. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that the applicant will be detained indefinitely. 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.

    Whether there would be consequential cancellations under s.140

33. 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.   

34. There is no evidence to indicate that any children would be affected by the cancellation.

35. 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.

36. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

37. The applicant has not raised any other matter either in his communication with the Department or the Tribunal.

38. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 103 of the Act because he gave, or caused to be given, a bogus document. The Tribunal has formed the view that the breach is significant because evidence of the applicant’s educational qualifications was central to his eligibility for the visa. The Tribunal has formed the view that even if the applicant relied on an agent to lodge his application, he had the responsibility to ensure that no bogus documents were submitted.

39. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations and there is little evidence that the cancellation would cause hardship to the applicant. While some time has passed since the non-compliance, the Tribunal does not consider the time to be significant. There re are no others who would be affected by the cancellation. The Tribunal acknowledges that there are no other known instances of non-compliance or breaches of the law. There is no information about the applicant’s contribution to the community.

40. Having regard to all of the applicant’s circumstances, the Tribunal has formed the view that the nature of the breach and the circumstances in which the non-compliance occurred outweigh other considerations. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member