Chandrasekaran (Migration)

[2019] AATA 833

Chandrasekaran (Migration) [2019] AATA 833 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajah Dhorai Chandrasekaran

CASE NUMBER:  1825881

DIBP REFERENCE(S):  BCC2018/2436126

MEMBER:Kira Raif

DATE:23 January 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 23 January 2019 at 4:54pm

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 – steps to ensure correctness of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 98, 100, 101, 103, 107, 109, 111
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 June 1995. He was granted the Skilled Recognised Graduate Class VF visa on 14 November 2017. The visa was to be in effect until 8 August 2019. On 10 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 her visa was cancelled on 31 August 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 23 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. 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. 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?

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 7 October 2017.

   b.On Page 8 of the application form, in response to a question about his post-secondary qualifications, the applicant stated that he completed a Bachelor of Electrical and Electronics Engineering at Karpagam College of Engineering, Coimbatore between August 2013 and March 2017.

   c.On pages 9 and 10 of the application form the applicant declared that the information provided in the application was complete, correct and up to date.

   d.In support of his visa application the applicant provided a Consolidated Grade Sheet for a Bachelor of Engineering in Electrical and Electronics Engineering completed at Karpagam College of Engineering, affiliated with Anna University. The Grade Sheet is dated 11 May 2017 and indicates the applicant completed the course in March 2017 with First Class and a GPA of 8.31.

   e.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 21 November 2017.

   f.The Department undertook integrity checks regarding the applicant’s qualifications. The integrity check identified that the applicant’s Consolidated Grade Sheet dated 11 May 2017 contains identical scores, grades and dates as several other bogus academic transcripts provided by other applicants and the personal identifies have been made to match the visa holder’s details.

10. In his written response to the NOICC dated 10 August 2018 the applicant confirms that the above mentioned qualifications were not his. The applicant submitted that he completed a Bachelor of Computer Science and Engineering at Karpagam University. After completing his qualifications, he approached an agent to make the application on his behalf. The applicant states that he was not aware that bogus documents had been submitted with his application and it was not his intention to submit bogus documents. The applicant refers to the advice from his present migration agent that if the bogus documents were submitted without his knowledge, PIC 4020 is not relevant and it cannot form the basis of the cancellation of the visa. The applicant states that it was his agent, and not him, who provided the bogus documents.

11. The applicant’s evidence to the delegate is that he completed a Bachelor of Computer Engineering from Karpagam University in November 2016. The applicant told the Tribunal that he studied Computer Science Engineering and not the Electronic or Electrical Science Engineering. The applicant told the Tribunal that he never signed any forms and maybe his signature was photo-shopped. The applicant stated that he gave genuine documents to the agent and it was not until he received the Notice that he realised that the agent submitted bogus documents.

12. On the basis of the applicant’s evidence, the Tribunal finds that the applicant did not obtain the Bachelor of Electrical and Electronic Engineering. The Tribunal finds that the Consolidated Grade Sheet from Karpagam College of Engineering is a bogus document within the meaning of s. 5(a) because it purport to have been, but was not, issued in respect of the applicant. The Tribunal finds that the applicant has given, presented, produced or provided to an officer or the Minister, a bogus document or caused such a document to be so given, produced or provided. The applicant did not comply with s. 101 of the Act.

13. The Tribunal further finds that on Page 8 of the application form, in response to a question about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Electronic and Electrical Engineering at Karpagam College of Engineering at Coimbatore, India, between August 2013 and March 2017. The applicant’s evidence in response to the NOICC and to the Tribunal is that he did not obtain that qualification. The Tribunal finds that the applicant completed his application form in a way that incorrect answer was given. The Tribunal further finds that applicant declared in his 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. The Tribunal finds that the applicant did not comply with s. 103.

14. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that it should be considered that the agent, and not him, who provided the bogus document. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers and bogus documents was done without his knowledge or consent. However, contrary to the applicant’s (or his migration agent’s) submission, 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.

15. The Tribunal finds that the applicant filled in or completed his application form in a way that incorrect answers were given or provided and he 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. 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 graduate with the Bachelor of Electrical and Electronics Engineering. He has completed a different qualification and not the one he referred to in his visa application.

    The content of the genuine document (if any)

20. The genuine document would indicate that the applicant obtained a Bachelor of Computer Engineering and not a Bachelor of Electrical and Electronic Engineering at Karpagam 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

21. Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. The applicant states that he had obtained an engineering degree and there was no purpose in him providing incorrect information. However, the qualification on which the applicant relied in his visa application is not the qualification which he had in fact completed.

22. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of his 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. It is not necessary for the Tribunal to determine whether the applicant would have been granted the visa if the correct information was known.

    The circumstances in which the non-compliance occurred

23. In his responses to the NOICC and his evidence to the Tribunal the applicant states that he approached an agent to assist him with the visa and was unaware that the agent submitted a different qualification. The applicant claims that he was not involved in the commission of fraud but it was his agent. The applicant told the Tribunal that he consulted with the agent and the agent told him that his qualifications could be attested by Anna University and that once the attestation was obtained, he could meet the eligibility requirements. The applicant states that there was no purpose in him falsifying the documents because he held an engineering degree and passed the language test and qualified for the visa.

24. The Tribunal finds the applicant’s submission problematic. It is not enough to state that the applicant relied on others when making the application. 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 is also mindful that the issue is not only the provision of bogus academic qualifications but also an answer on the application form and the applicant could have asked to check the form before it was submitted. In the Tribunal’s view, he had the responsibility to do so to ensure that any information that was being submitted on his behalf was correct and accurate

25. The applicant told the Tribunal that the agent did not provide him with the computer password. Even if that was the case, the Tribunal is of the view that the applicant had other means of checking his application, for example by requesting a copy of it from his agent. The applicant told the Tribunal that if he questioned the agent too much, the agent would have told him to take his money and leave. It appears that the applicant decided it was more convenient not to carry out any checks because he wanted to proceed with that agent. The applicant also said that he checked with the local police and saw that there were no complaints about the agent. However, the Tribunal’s concern is with the applicant’s specific application, and his involvement in the process, rather than the agent’s general conduct.

26. The Tribunal is not satisfied that the applicant had taken adequate steps to check his application before its submission. The Tribunal finds that the applicant was either complicit in the actions of his agent or he was negligent in his actions and recklessly indifferent in his dealings with the agent.

27. The applicant also argues in his written submission that PIC 4020 should not apply to him. The Tribunal considers that provision to be irrelevant for present purposes.

    The present circumstances of the visa holder

28. The applicant told the Tribunal that he does not work and relies on his friends.

29. The applicant indicated in his response to the NOICC that he wanted to apply for a Student to enable him to complete study in Australia and improve his future. He told the Tribunal he wants to study an MBA and had made inquiries about courses but he has not yet arranged the funds for tuition.

30. The Tribunal is mindful that the applicant has not taken any steps to enrol in an Australian education insttuion from the time of his entry to Australia and before his visa was cancelled. He explained to the Tribunal that his visa entitled him to work, so he decided to work first and save money for his studies. The applicant also claims that he may obtain a study loan in order to study. If that is the case, the applicant could have arranged the loan and commenced his study in the past. Instead, the applicant’s preference was to work. The Tribunal is not satisfied that the applicant is a genuine student. It appears that his intention is to remain in Australia for as long as possible and to work in Australia.

31. In any case, the Tribunal is mindful that the applicant may be eligible to make an application for a Student visa irrespective of the outcome of this review, although the Tribunal akcnowleges that the applicant may be subject to an exclusion period as a result of the cancellation.

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

32. 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

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

    The time that has elapsed since the non-compliance

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

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

35. There are no known breaches of the law.

    Any contribution made by the holder to the community.

36. The applicant states in his response to the NOICC that he has background in computer science engineering, which is in high demand in Australia and his skills can be beneficial to the Australian community and economy. In the Tribunal’s view, the fact that the applicant has the qualification or the skills that can be beneficial does not necessarily establish that the applicant has made a contribution to the community.  The applicant told the Tribunal that he worked as a forklift driver and has not done any work in computer science or engineering. The Tribunal does not accept that the applicant’s qualifications on their own constitute any contribution to the community. 

37. The applicant told the Tribunal that he had made charitable contributions. The Tribunal is prepared to accept 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 he 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 applicants from making a valid visa application without the Minister’s intervention although the Tribunal acknowledges that exclusion periods may apply and that there are only limited categories of visas the applicant can seek in Australia.

    Whether there would be consequential cancellations under s.140

1. 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

2. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be engaged in relation to him. There are no children affected by the cancellation. 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

3. The applicant told the Tribunal that he wants to study in Australia and he would not be able to obtain study rights if his visa is cancelled. The applicant said that there may be an exclusion period applying to him and in three years his circumstances may change. The applicant states that there will be a ‘black mark’ gains this name and he is a victim in this case. The Tribunal accepts that the applicant’s future visa applications may be affected by the cancellation of the visa. In particular, the Tribunal accepts that the applicant’s future Student visa application may be affected by the present cancellation.

4. The applicant states that he would feel compelled to tell his family about the cancellation and people will look down on him. The Tribunal does not consider these submissions convincing, given that the visa in question is a temporary visa and the applicant would be expected to leave Australia, or seek another visa, before its expiry.

5. The applicant states that there was no deliberate fault on his part and it was “totally without his knowledge”. Even if that was the case, the Tribunal has formed the view that the applicant had not taken adequate steps to ensure the correctness of his application.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 101 and s. 103 of the Migration Act and that there are grounds for cancelling his visa. The Tribunal acknowledges that there are no other instances of non-compliance and no other breaches of the law. Over a year passed since the non-compliance.

7. The Tribunal accepts that hardship would be caused to the applicant by the cancellation of the visa because the applicant may be unable to remain in Australia and work and also because his future visa applications may be affected. The applicant’s ability to seek a Student visa onshore would be affected by the present cancellation and there are other legal consequences to the cancellation of the visa. The Tribunal accepts that the applicant may feel uncomfortable telling others about the circumstances of the cancellation. The Tribunal is mindful, however, that the visa in question is a temporary visa which only permits the applicant to remain in Australia for a relatively short period. Nevertheless, the Tribunal accepts there would be repercussions for future applications as a result of the cancellation.

8. The Tribunal has found that the cancellation would not be in breach of Australia’s international obligations. There are no consequential cancellations.

9. The Tribunal has formed the view that the applicant had not taken adequate steps to ensure his application contained correct answers and genuine documents. The applicant relied entirely on an agent and appeared to have been indifferent about what was being submitted on his behalf. The Tribunal considers it significant that the decision to grant the visa was based on incorrect information and bogus documents and that the assessment of the applicant’s educational qualifications was central to his eligibility for the visa. In the Tribunal’s view, that consideration outweighs other matters.

10. 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

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

    Kira Raif
    Senior Member