Dontula (Migration)

[2023] AATA 1977

Dontula (Migration) [2023] AATA 1977 (26 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shiva Krishna Dontula

REPRESENTATIVE:  Ms Karri Sandhya Reddy (MARN: 1169857)

CASE NUMBER:  2208125

HOME AFFAIRS REFERENCE(S):          BCC2021/2361382

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 May 2023 at 2:35 pm (NSW time)

DATE OF WRITTEN RECORD:                27 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 27 June 2023 at 8:52am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – bogus document – education history details – credibility issues – college registration suspended – course enrolments cancelled – poor academic record – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 101, 103, 109
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.41

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision made by a delegate of the Minister for Home Affairs who, on 31 May 2022, cancelled the applicant’s Student (Class TU, Subclass 500) visa under Section 109(1) of the Migration Act 1958 (the Act).

2. At the conclusion of the hearing on 26 May 2023 the Tribunal made an oral decision to affirm the delegate’s decision and gave an oral statement of reasons for doing so.

3. What follows is the written record of those reasons.

   Preliminary aspects

4. The delegate cancelled the visa for non-compliance with Sec 101(b) and Sec 103 of the Act based on the provision of incorrect information and a bogus document in support of a Visa Application filed on 7 August 2020 (the VA). This information and document related to a Diploma of Business said to have been completed by the applicant at the Institute of Advancing Careers (IAC) in May 2020 (the Diploma). The information is contained in the VA in the section of the form headed “Education history details” where the applicant stated that he had completed the Diploma at IAC during the period from April 2019 to May 2020. The document is a Certificate of Completion for the Diploma purportedly issued on 13 May 2020 which appears to confirm that information (the Certificate).

5. In the reasons given for the issue of the Notice of Cancellation (NOC) the delegate found, and the applicant has not disputed, that the information and Certificate led to the grant of the subject visa on 14 October 2020.

6. The visa was cancelled on 31 May 2022 after the applicant had failed to respond to the Notice of Intention to Consider Cancellation (NOICC), a document which he accepts was served on him on 8 March 2022. 

7. The Review Application, or at least the operative one, was filed on 3 June 2022 and is within time. Although he had filed an earlier Review Application on 20 March 2022, apparently on the advice of his current agent, the applicant accepts that it was misconceived because at that stage the delegate had not in fact made any decision to cancel his visa. It thus appears that the earlier process was filed in response to the NOICC.

8. There is no issue in this case that the NOICC complied with the relevant statutory requirements and was a valid notice. Certainly, there have been no submissions in the review to the contrary and none were made to the delegate. 

9. The applicant also does not dispute that the delegate had grounds on which to cancel the visa for non-compliance with Secs 101(b) and 103. He accepts that the Certificate is a bogus document and that the information which he provided concerning his completion of that course was incorrect. Indeed, he accepts that he was never in fact enrolled in the Diploma at ICA and never studied any units in that course.

10. Thus, the only issue which arises for determination on this review is whether the visa should be cancelled.

    Procedural aspects in the review

11. In addition to the filing of the later Review Application the applicant’s current agent, Ms Karri Reddy (the agent), also filed an MR5 Form together with a request for a reduction to the filing fee. In response to that request the Tribunal sent a letter to her seeking further information in relation to it.  As there was no response to that letter the Tribunal, on 21 June 2022, refused the request.

12. In due course a Hearing Invitation was sent to the applicant on 27 April 2023 appointing 26 May at 1.30 pm for a video conference. In that letter the Tribunal requested the applicant to provide all documents on which he intended to rely by 19 May 2023. In response to that letter, on 3 May 2023, the agent sent an email to the Tribunal seeking a postponement of the hearing on the basis that the applicant was attempting to obtain a file from his former agent who is said to have acted for him in connection with the VA. 

13. The Tribunal responded to that request on 4 May 2023 by confirming its earlier oral request to provide, by 11 May 2023, a copy of any correspondence passing between the applicant and his former agent relating to the attempts to obtain the relevant file and to provide a list of the documents he was seeking.

14. There being no response to the 4 May email the Tribunal, on 22 May 2023, sent a further email to Ms Reddy informing her that the request to postpone the hearing had been refused and that it would proceed as scheduled.

15. The applicant appeared at the hearing today to give oral evidence in support of his case. I have heard evidence from him which lasted for about 1 hour. He gave his evidence in English without apparent difficulty. An interpreter was not requested and was not required. Ms Reddy did not attend the hearing.

16. Overall, I formed an adverse impression of the applicant as a witness. Quite apart from his admission regarding knowing participation in the provision of false information to the Department, insofar as his demeanour goes there were numerous instances when he did not respond directly to my questions despite regular warnings from me to do so. Questions had to be repeated, at times more than once, in an endeavour to obtain from him a direct response. I do have the distinct impression that he was prevaricating at times. Long pauses in his answers to apparently simple questions did nothing to instil confidence in what he was saying. Changing his evidence on important matters as he went along also did nothing to convince me that he was telling the truth.

17. I am thus unable to rely on much of his oral evidence unless it is inherently plausible, is consistent with the objective features, is corroborated by other reliable evidence or consists of an admission against interest.

18. For the following reasons I have concluded that the decision of the delegate to cancel the applicant’s visa should be affirmed. 

    Overview of the applicant’s case, credibility issues

19. Although there is no credible evidence to support his assertion that an agent was in fact engaged to prepare the VA, I am prepared to give him the benefit of that doubt and proceed on the basis that an agent was retained for that purpose and did have, along with the applicant, a significant role to play in the procurement of the subject visa. 

20. The applicant’s case is that he engaged an agent, whom he identified as Rizwan, to prepare the VA, that he had limited involvement in the provision of the offending information and Certificate, that his former agent organised everything and that he (the agent) is thus responsible for what took place.

21. In the absence of any documentary evidence to support these assertions I am unable, for that and other reasons, to accept that the applicant had nothing to do with the provision of the bogus document or the provision of the incorrect information. In any event, his own evidence suggests that he did provide at least some of the information to the agent. According to him there were numerous meetings with the agent prior to the filing of the VA. Although he accepts that he told the agent that he had been enrolled in the Diploma in April 2019 he denies having told him that he completed that course in May 2020.

22. I do not accept that denial. If he was prepared to inform the agent that he was enrolled in that course, information which he knew to be false, it strikes me as quite implausible that he would not also have been prepared to assert that he had completed it.

23. Among the other documents provided to support the VA is a detailed letter which addressed the GTE requirement. Although the applicant also denies having written this letter he does admit that much of the information recorded in it came from him and that it does represent an accurate account of his personal circumstances.

24. For those and other reasons I am thus satisfied that the applicant was sufficiently complicit in the provision of the offending information and document and that he must bear responsibility for it.

    The process which led to the cancellation

25. Shortly prior to the issue of the NOICC, the Department apparently obtained information from the Australian Border Force (ABF), which in turn had acquired it from ASQA, to the effect that the Certificate was a bogus document. This was because the registration of IAC had been suspended on 5 June 2019 for the period from 12 July 2019 to 12 March 2020 the effect of which was to prevent IAC from commencing any courses or issuing any certificates during that period. Moreover, on 14 September 2021, ASQA provided further information which established that the corporate entity which controlled IAC, namely Training Organisation Victoria Pty Ltd, had submitted records to ASQA which showed that no educational certificates had been issued by IAC during the period from 30 January 2020 to 7 July 2021.

26. In the NOICC, under the heading “Subsequent information received by the Department”, the delegate recites that information and states that, on that basis, there could have been non-compliance with 101(b) and 103 for the reasons given. The applicant was invited to respond to this information but did not do so.

27. Given the evidence which was available to the delegate, the effect of which is clearly and succinctly set out in the NOICC, I am satisfied that it was well open to the delegate to find that the relevant information was incorrect and that the Minister could reasonably entertain a suspicion that the Certificate, a document purportedly issued on 13 May 2020, was bogus.

28. In the NOC the delegate reiterates the information which had been received regarding the offending material and went on to find, correctly in my view, that the applicant had not completed the Diploma at IAC and that the certificate was a bogus document. He went on to find, correctly in my view, that the applicant had failed to comply with Secs 101(b) and 103 of the Act. The applicant does not dispute in this review that the delegate was entitled to so find and I am satisfied for that and other reasons that he was.

29. I am thus satisfied, quite apart from the applicant’s admissions, that he has failed to comply with Secs 101(b) and 103 of the Act and that grounds therefore existed on which to cancel his visa. It is of course irrelevant for this purpose to enquire whether the agent acted alone or in conjunction with the applicant as the Act makes it clear that he (the applicant) is responsible for the conduct of the agent in connection with the preparation and filing of the VA.

30. The delegate then went on in the decision to consider, as he was required to do, whether the applicant’s visa should be cancelled. 

    Approaching the issue of whether the visa should be cancelled

31. Having found non-compliance with Secs 101(b) and 103 it is necessary for the Tribunal to consider the issue of whether the visa should be cancelled.

32. Although the cancellation of a visa under Sec 109 of the Act is ultimately a discretionary exercise, the matters referred to in Sec 109(1)(b) and (c) of the Act, so far as these are relevant to the case, must be considered together with any other matters which necessarily come into play including those set out in the Procedural Advice Manual and those referred to in Regulation 2.41.

    Evidence and other findings

33. Before returning to consider the applicant’s oral evidence in relation to the circumstances in which these non-compliances occurred, I will firstly recite the background much of which appears to be uncontroversial.

34. The applicant was born in India in 1995. According to the VA and his oral evidence he completed a Bachelor of Mechanical Engineering at a local University in May 2017, was granted a Student TU 500 visa on 20 April 2018 and arrived here shortly thereafter to begin studies in a Master of Project Management at Edith Cowan University. His visa was subject to condition 8202. He accepts that his enrolment in that course was cancelled when he ceased studies, apparently in or about early 2019. He confirmed in his oral evidence that the matters referred to in the GTE statement concerning the difficulties which he had with this course were correct and consisted of the adjustment issues outlined in the letter.

35. After discussing these and other matters with his father he enrolled in a Diploma of Business and an Advanced Diploma of Business at the Australis Institute of Technology (AIT) in or about February 2019. The plan, according to him, was to obtain these qualifications and return to India to help his father with the family business. PRISMS confirms these enrolments. The applicant told me today, and I accept, that he only attended classes in the Diploma for about 2 weeks before ceasing studies in that course. Consequently, these enrolments were cancelled for unsatisfactory attendance on 23 September 2019. Again, PRISMS confirms this.

36. In or about May 2020, that is about 15 months after he ceased studies in the Business package at AIT, he enrolled in a package of Project Management courses at AHIC consisting of a Diploma and an Advanced Diploma, with the Diploma due to commence on 25 May 2020. These courses led to nothing in the way of productive study. Indeed, the applicant accepts that he never commenced studies in the Diploma and that his enrolments in this package were cancelled, initially in January 2021 when he transferred to a different provider and later in July 2021 when his enrolments in the new Project Management package at this other provider were also cancelled.

37. Thus, on his own case, the applicant has not been enrolled in any registered course of study since July 2021, now almost two years ago. Although he has, during part of this period, been subject to a no study prohibition on the Bridging visa granted to him on 16 June 2022 this, according to the Movements record, is a discretionary condition which presumably could have been relaxed by the Department had the applicant been able to demonstrate a genuine willingness to engage in study. Absent any evidence from him along these lines, and given his broader unsatisfactory academic record, I infer that any evidence which he might have led on this aspect would not have assisted his case. 

38. As mentioned earlier, the VA was filed on 7 August 2020 to enable the applicant to study the courses at AHIC. He told me today that he engaged the agent to prepare the VA, said that he met with the agent on at least 12 occasions and that he paid him about $12,000 in cash by way of instalments, with an initial payment of $3000 and the balance at the rate of about $1500 per month. On the assumption that the money would have been paid in full before the VA was filed, as seems likely, this evidence is thus broadly to the effect that he was providing information to Rizwan prior to the filing of the VA over a period of about 6 months. He said that he gave the agent some documents during this period, including academic records from his studies in India, but did not give to him a Certificate relating to his purported completion of the Diploma at IAC. He also denied having received a copy of the VA and denied having received a copy of any of the supporting documents which the agent had procured, including the Certificate.

39. I do not accept these denials. It seems to me incongruous that, having given to Rizwan knowingly false information about his enrolment in the Diploma, information which he likely conveyed in the early stages of their dealings, he would not have been made aware, in the course of these numerous meetings and during this 6 month period, of what the agent was proposing to do to procure the visa and what information and documents he was intending to utilise, or had procured, for that purpose.

40. I find, according to the Briginshaw standard, that in these circumstances the applicant knew what the agent was intending to do, and knew what he had in fact done, to prepare the VA. More particularly, having knowingly given to the agent false information about his academic history, it seems logical to me that the applicant would have authorised him to go ahead and support the VA by providing whatever further information and documents he (the agent) thought was necessary for that purpose.

41. There are other reasons why I do not accept the applicant’s claim that he never knew what Rizwan was doing not the least of which is that he told me today that he never gave to the agent any of the other personal information which, according to his evidence, has been accurately recorded in the GTE statement. This contention is obviously nonsense. If the applicant did not provide these details he has not paused to explain who did. Rizwan cannot have manufactured it because the applicant accepts that it contains an accurate summary of his personal history and there is no suggestion that anyone else was involved in the preparation of the statement. 

42. The applicant does not dispute that the visa was granted to him at least partly on the provision of the offending material, material which was presumably provided to fill in what would otherwise have been a significant gap in his studies in Australia. It does seem to me that, without the offending material, his prospects of obtaining the visa would have been problematic because, as I have already indicated, his enrolment in the Diploma at AIT had come to an end in September 2019, the VA was not filed until 7 August 2020 in circumstances where his initial TU-500 visa was subject to condition 8202. It is reasonably clear to me, in these circumstances, that the offending material was almost certainly procured and provided to the delegate to address this extensive enrolment gap.

43. Indeed, if the offending material had not been provided, the prospects of the applicant obtaining the visa would have been quite remote given the extensive breach of 8202.

44. This being so, I proceed on the basis that the applicant has in this case obtained a migration benefit to which he most probably would not have been entitled had correct information concerning his study history in Australia been provided.

45. Returning to the specific matters which the delegate considered in his decision, I broadly agree with the way in which, on the evidence then available, these were addressed. I also agree broadly with the relative weight which he attached to them.

46. More particularly, as the delegate pointed out, the correct information was that the applicant was never enrolled in the Diploma at IAC, had never studied in this course let alone completed it. On any view this information was significantly different to the information provided and, for the reasons already given, it is to be accorded significant weight in favour of cancelling the visa. No other finding is reasonably open to me given that, on the applicant’s own evidence, he gave to the agent information concerning his enrolment in that course which he knew to be false and which he must have known would in due course be provided to the delegate.

47. The fact that a counterfeit document in the form of the Certificate was provided to reinforce that information, and indeed to confirm it, serves only to exacerbate the significance of the incorrect information. Having rejected the applicant’s evidence that he knew nothing about the Certificate until the NOICC was served on him I am prepared to infer that he was probably made aware of it during his meetings with the agent, most of which appear to have taken place before the VA was filed. This too is a circumstance which attracts significant adverse weight.

1. On my findings, the Certificate and incorrect information were knowingly provided, either directly by the applicant or by the agent with his authority and consent, to procure an immigration benefit to which he was likely not entitled. Again, this is a matter which attracts significant adverse weight.

2. As to the circumstances in which these non-compliances occurred, I have already made findings which implicate him and, in so doing, have rejected his denials. In my view he was sufficiently complicit in this fraud by actively promoting it when he gave the agent important information which he knew to be false. At no later stage did he voluntarily come forward and give to the Department the true information. At no stage has he expressed any remorse or regret in his dealings with the Department, and no evidence to this effect has been led in his review case. These are circumstances which not only attract suspicion they suggest to me that he had something to hide.

3. As to the present circumstances of the applicant, I know nothing about them because he has provided no evidence to throw light on them. I know nothing about his current domestic circumstances, his work activity in Australia (if any) and so on. I infer in these circumstances that the evidence, had it been led, would not have assisted his case.

4. Apart from relatively insignificant periods of study, the applicant has not attended classes despite having been here now for more than 5 years. On any view, his academic record is almost non-existent and, to make matters worse, he has provided no satisfactory explanation for it.

5. He has led no evidence of any emotional or financial hardship which would arise from the cancellation, either to him or to any member of his family. I have only what can be gleaned from a GTE statement written almost 3 years ago and there is little if anything in that document which assists him in this respect. This is a case which plainly involves wasted financial resources given his study history but I am not able to quantify what they are, nor can I identify who will have to bear them. 

6. At the end of the day, as the delegate pointed out, the applicant has been granted temporary visas to remain in Australia temporarily. They were not granted to him to remain here permanently or indefinitely, which he appears to me to want to do. These too are matters which attract some adverse weight at the discretionary level.

7. As far as his behaviour towards the Department is concerned the delegate dealt with this in paragraph (f) of his reasons noting that he did not respond to the NOICC. Of course, he was not under any legal obligation to do so but, as I have already indicated, his unexplained failure to respond does nothing to assist his review case. It may be that he was given misconceived advice by his current agent but, again, there is no evidence from him to this effect.

8. According to his case, he did not know anything about the provision of this offending material until after he received the NOICC. If that is so it seems more likely that he would have taken steps at that stage to meaningfully engage with the process which the delegate had initiated rather than do what he did, namely run off and seek a review of a decision which the delegate had not yet made.

9. I do not think that the applicant can be said in these circumstances to have co-operated with the Department. Nor has he engaged with the review process. He was asked to provide to the Tribunal a documentary case in a timely manner which he did not do, in that manner or at all. He simply fronts up at the hearing and gives me an oral account which, in critical respects, I have found to be tailored and incredulous. I give these matters some weight in favour of cancelling his visa.

10. There are no other instances of non-compliance as far as the evidence goes, but this is not a matter which carries any real weight in the overall circumstances of this case.

11. The applicant has been here for more than 5 years which ordinarily would be a sufficient time to establish personal and other ties in the community but, in this case, he has been here since October 2020 (if not earlier) under a false pretence. I cannot give this matter any weight in his favour in these circumstances and, in any event, he has given no evidence that he has established any ties.

12. There is no information that he has been otherwise in breach of the law since he arrived here. Again, I can give this some weight against cancellation but nothing turns on it.

13. There is no evidence that he has made any contribution to the community, no suggestion that he has any dependent family members whose visas may be cancelled, and no evidence that there are any relevant international agreements or obligations to consider. I am consequently unable to give these matters any weight for or against cancellation.

14. There are, of course, mandatory legal consequences. These are dealt with by the delegate in his decision and I agree with what he said about them. I thus give this some but not more than minimal weight against cancelling the visa. The applicant is the author of his own harm and must bear responsibility for what he has done.

15. Whilst I can accept that cancellation of the visa might occasion disappointed familial expectations, particularly those which his father might have entertained given that he had something to do with the applicant’s decision making in the early stages, this is not something which can out-flank other more influential considerations.

16. It may be that the applicant now wants to study these courses in Australia and go back to India with qualifications which would have enabled him to add value to the family business, whatever that consists of, but the fact remains that he is not an uneducated young man. He has a Bachelor of Mechanical Engineering and he can presumably study these vocational courses in India, if this in fact is what he now wants to do. He has led no evidence to explain why he could not go about it this way.

17. There do not appear to be any other relevant matters about which evidence has been given or which otherwise require specific consideration.

    Summary and conclusion 

18. Having found the relevant non-compliances and after considering the relevant circumstances, particularly those in which these non-compliances occurred, and after having given due weight to the relevant matters, I have little difficulty concluding that his Student TU 500 visa should be cancelled.

    DECISION

19. The Tribunal thus affirms the decision under review.

    Michael Bradford
    Member