Duraisamy (Migration)

[2019] AATA 3937

Duraisamy (Migration) [2019] AATA 3937 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mohanapriya Duraisamy

CASE NUMBER:  1909584

DIBP REFERENCE(S):  BCC2018/3952922

MEMBER:Kira Raif

DATE:21 June 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 21 June 2019 at 8:21am

CATCHWORDS
MIGRATION – Cancellation – Skilled (Provisional)(Class VF) – Subclass 476 (Skilled Recognised Graduate) – Bachelor of Electrical and Electronics – incorrect answers – bogus statement of grades documents – visa fraud from applicants claiming to be engineering graduates – migration agent submitted bogus documents without knowledge of applicant – . cancellation provisions apply for inadvertent non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth) ss 5, 98, 100, 101, 103, 107, 109, 111, 362B, 379A(5)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 476.212, PIC 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 April 1994. She was granted the Skilled Recognised Graduate Class VF visa on 11 January 2018. The visa was to be in effect until 28 August 2019. On 29 March 2019 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 15 April 2019. The applicant seeks review of the delegate’s decision.

3. On 3 June 2019 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 20 June 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant two SMS reminders about the hearing five business days and one business day before the scheduled hearing.

4. The applicant wrote to the Tribunal on 15 June 2019 confirming her intention to attend the hearing. The Tribunal is satisfied the applicant was aware of the hearing. However, the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Relevant law

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

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

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

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

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

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

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

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

    a.The applicant made the application for the Skilled visa on 9 November 2017 and completed the application form.

    b.On Page 11 of the application form the applicant stated that she holds a Bachelor of Electrical and Electronics Engineering from Kongu Engineering College at Perundurai, completed between August 2011 and April 2017.

    c.On Pages 12 and 13 of the application form the applicant completed a declaration stating that the information provided in the form was complete, correct and up to date.

    d.The applicant included with her application a Certificate issued by Anna University indicating that she had obtained a Bachelor of Electrical and Electronics Engineering, dated 21 June 2017. The applicant also provided a Consolidated Statement of Grades from Kongu Engineering College dated 12 June 2017.

    e.The applicant was granted the visa on 11 January 2018 and entered Australia on 28 February 2018.

11. The Departmental became aware of visa fraud involving applicants who claim to be engineering graduates from Anna University and its affiliates providing bogus consolidated statement of grades documents in the visa applications. The Department found many Consolidated Statements of Grades to be identical in terms of dates of issue, branch, courses and results which have been amended to tailor transcripts to Individual visa applicants (name and date of birth). The Consolidated Statements of Grades purport to be issued in respect of different students ad to be unique to each student reflect identical subjects studied, in identical order, with identical course outcomes including credits, grade points and letter grades.

12. The applicant’s Consolidated Statement of Grades has been compared to samples from other visa applicants claiming to have studied the same course at Kongu Engineering College and have been found to have identical dates of issue, branch, courses and results.

13. In her response to the NOICC (a copy of which the applicant provided to the Tribunal) the applicant apologised for submitting ‘irrelevant’ documents which, she claims, happened without her knowledge. The applicant states that she approached an agent to prepare her application and provided original educational documents to the agent. She was not aware that the agent changed the documents until receiving the letter from the Department. The applicant states that she did obtain an engineering qualification from India.

14. The applicant’s evidence indicates that her genuine documents were substituted by the agent without her knowledge. This is consistent with the information obtained by the Department, suggesting that the applicant’s educational documents were identical to those submitted by other students. On the basis of this evidence, the Tribunal finds that the applicant did not obtain a Bachelor of Electrical and Electronics Engineering from Kongu Engineering College a result of study between August 2011 and April 2017. The Tribunal reasonably suspects that the Certificate from Anna University dated 21 June 2017 and the Consolidated statement of grades dated 12 June 2017 are bogus documents either within the meaning of s. 5(a) because they purport to have been, but were not, issued in respect of the applicant, or within the meaning of s. 5(b) because they are counterfeit or have 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.

15. The Tribunal further finds that on the application forms, in response to questions about her qualifications, the applicant gave incorrect answers by stating that she had completed a Bachelor of Electrical and Electronics Engineering from Kongu Engineering College. The Tribunal finds that the applicant completed her application forms in a way that incorrect answers were given. The Tribunal further finds that the applicant declared in her application that the information provided in the application was complete, correct and up to date. The Tribunal finds that these answers were also incorrect.

16. The Tribunal acknowledges the applicant’s submission that she gave genuine documents to her agent and that it was the agent who falsified the documents and provided these documents to the Department on her behalf. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers and bogus documents was done without her knowledge. 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 her application form, she is taken to do so if she causes it to be filled in or if it is otherwise filled in on her 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.

17. 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, bogus documents or caused such documents to be so given, presented, produced or provided. She did not comply with s. 103 of the Act.

18. 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?

19. 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).

20. 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

21. The correct information is that the applicant did not obtain the Bachelor of Electrical and Electronics Engineering from Kongu College.

    The content of the genuine document (if any)

22. The content of a genuine document would not show the applicant graduating from Kongu Engineering College with a Bachelor of Electronic and Electrical Engineering, and obtaining certain grades in that degree.

    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

23. 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. The applicant provided incorrect answers in relation to the course she completed.

24. The applicant would have also 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 bogus documents.

    The circumstances in which the non-compliance occurred

26. The applicant submits in response to the NOICC that she approached an agent who prepared the application for her. There is little other information before the Tribunal about the circumstances of the non-compliance. For example, there is little evidence as to whether the applicant took any steps to check the content of her application with the agent before its submission. There is little information about the applicant’s degree of involvement in her application.

    The present circumstances of the visa holder

27. The applicant states in her response to the NOICC that she planned to leave the country prior to the expiry of her visa but needs more time to end her tenancy agreement and arrange her departure from Australia. The Tribunal is mindful that more than two months have now passed since the cancellation of the visa by the delegate and the applicant’s visa was due to expire in late August 2019. In the Tribunal’s view, if the applicant has a genuine intention of departing Australia prior to the expiry of her substantive visa, she has had time to make the necessary arrangements for her departure.

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

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

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

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

    The time that has elapsed since the non-compliance

30. The application for the visa was made in November 2017. Approximately 19 months passed since the non-compliance.

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

31. There are no other known breaches of the law.

    Any contribution made by the holder to the community.

32. The applicant refers to her employment and the payment of taxes. No evidence of employment has been presented. The applicant has not presented any other evidence of making a contribution to the community.

33. 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

34. 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 although the Tribunal acknowledges that the applicant will have limited opportunities to make visa applications onshore.  The applicant may also be subject to an exclusion period in relation to future applications.

    Whether there would be consequential cancellations under s.140

35. 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.   

36. There is no evidence before the Tribunal to indicate that Australia’s non-refoulement obligations would be engaged in this case. There is no evidence that that the cancellation of the visa would affect any children. There is no evidence that the applicant has family in Australia. The Tribunal finds on the evidence before it 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

37. The applicant states in her response to the NOICC that the cancellation of her visa may affect her future. She has not provided any further information on how her future would be affected. The Tribunal acknowledges, as noted above, that the cancellation of the visa may limit the applicant’s future visa options.

38. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave incorrect answers on the application and a bogus document with her application and that there are grounds for cancelling her visa. The Tribunal is prepared to accept that some hardship would be caused by the cancellation because the applicant may be required to leave the country and because her future visa applications may be affected. There are no other known instances of non-compliance or breaches of the law. The Tribunal has formed the view that the cancelation would not be in breach of Australia’s international obligations. The Tribunal places greater weight on the fact that the decision to grant the visa was based on incorrect answers and bogus documents and that the applicant’s study was central in determining her eligibility for the visa.

39. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member