John Francis (Migration)

[2019] AATA 655

John Francis (Migration) [2019] AATA 655 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baskar David John Francis

CASE NUMBER:  1835823

DIBP REFERENCE(S):  BCC2018/2205917

MEMBER:Kira Raif

DATE:28 February 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 28 February 2019 at 2:34pm

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 – negligent and recklessly indifferent in dealings with agent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 103, 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 9 August 2017. The visa was to be in effect until 12 March 2019. On 26 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 his response to the NOICC and his visa was cancelled on 30 November 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. 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 4 July 2017.

   b.In his application form, in response to a question about his post-secondary qualifications, the applicant stated that he completed a Bachelor of Electronics and Communication Engineering at Madras Institute of Technology at Chennai between 1 August 2012 and April 2016.

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

   d.The applicant submitted Form 80 in which he also stated in Part G that he completed a Bachelor of Engineering in Electronic and Communication Engineering at Madras Institute of Technology between August 2012 and April 2016.

   e.The applicant signed a declaration on Form 80 that the information he supplied was complete, correct and up to date in every detail.

   f.The applicant submitted Form 1221 in which he stated in Part G that he completed a Bachelor of Engineering in Electronic and Communication Engineering at Madras Institute of Technology in 2016.

   g.The applicant signed a declaration on Form 1221 that the information he supplied was complete, correct and up to date in every detail.

   h.In support of his visa application the applicant provided

   i.a provisional certificate dated 10 July 2016

   ii.a consolidated statement of grades dated April 2016. This contains the date of issue, branch, courses (code and title), results (credits, grade point and letter grade) and a register number relating to the examination results at Madras Institute of Technology between January 2013 and April 2013

   iii.bachelor certificate dated March 2017 from Anna University through Madras Institute of Technology.

   i.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 9 August 2017. 

   j.Validation checks by the Department show that the Consolidated statements of grades provided by the applicant is identical to those provided by a number of other persons claiming to have obtained Bachelor of Electronics and Communication Engineering qualifications from Madras Institute of Technology. In each case, the subjects, grades, dates of completion and grade point average were identical. Only the graduate’s personal details (names, date or births, photos) have been changed but in every other respect the documents are identical.

10. In his written response to the NOICC the applicant stated that he approached an agent in India who informed him that he was eligible for the Australian visa. He paid a fee to the agent and provided the agent with genuine documents. The applicant states that he was not aware of the agent submitting bogus documents and he is not at fault. It was not his intention to provide false information and it was due to the action of the agent, who now refuses to accept responsibly.

11. In oral evidence the applicant told the Tribunal that he completed a Bachelor of Mechanical Engineering at Karpagam College of Engineering. He graduated in 2016. The applicant confirmed that he did not study at Madras Engineering College.

12. The applicant’s evidence indicates that he had not obtained a Bachelor of Electronics and Communication Engineering from Madras Institute of Technology as a result of study between August 2012 and April 2016. On the basis of this information, the Tribunal finds that the provisional certificate, transcript and consolidated statement of grades from Madras Institute of Technology 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.

13. The Tribunal further finds that on the application forms, in response to questions about his qualifications, the applicant gave incorrect answers by stating that he had completed a Bachelor of Electronics and Communication Engineering qualifications from Madras Institute of Technology. The Tribunal finds that the applicant completed his application forms in a way that incorrect answers were 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 these answers were also incorrect.

14. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that he was unaware of the fraud which was committed by the agent. 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, the Tribunal is of the view that by instructing the agent to prepare and lodge the application for him, and paying the fees for the service, the applicant created an agency arrangement between himself and the agent preparing his 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 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.

16. 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, bogus documents or caused such documents to be so given, presented, produced or provided. He 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 a Bachelor of Electronics and Communication Engineering at Madras Institute of Technology at Chennai. The applicant completed a Bachelor of Mechanical Engineering at a Karpagam College and not the qualification he referred to in his visa application.

    The content of the genuine document (if any)

21. The Tribunal has found that the academic reports are bogus documents. A genuine document would not indicate that the applicant obtained a Bachelor of Electronics and Communication Engineering at Madras Institute of Technology at Chennai. He holds a Bachelor of Mechanical Engineering from Karpagam 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

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

23. The applicant would have also been required to meet PIC 4020 before he 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 his application, the assessment against PIC 4020 would have been more thorough.

24. The applicant argues that he did complete an engineering course at Anna University and if he did not have the right qualifications, he would not have travelled to Australia. It is not necessary for the Tribunal to determine whether the applicant would have qualified for the visa, if the correct information was known. The applicant did not rely on the genuine documents when seeking the visa. He relied on different qualifications which he did not have.

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

    The circumstances in which the non-compliance occurred

26. In his responses to the NOICC the applicant states that he approached an agent to help him with the visa application and was unaware that the agent submitted bogus documents. The applicant also told the Tribunal that he gave all the information to the agent and he did not know what the agent had submitted until he received the NOICC.

27. The applicant told the Tribunal that the agency was located far away. After completing his studies, he saw the agent with his friends and asked if he could go abroad. The agent told him about the subclass 476 visa. He paid the fee to the agent and signed a form. The agent did not give him the IMMI account details or the password, so he could not check the application. The applicant told the Tribunal that the agent asked him to fill the forms in pencil so they could make corrections if there were any mistakes. The visa was later granted and he was confident he met the requirements. The applicant refers to agency fraud and states that he was not aware of it until he came to Australia. 

28. 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 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.

29. The Tribunal is mindful that the issue is not only the provision of bogus academic qualifications but also the applicant’s answers on multiple application forms and the applicant could have checked the forms before signing and before the application was submitted. The applicant claims he completed the forms in pencil and he does not suggest that he checked the fully completed forms before they were 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 – and which had been signed by him – was correct and accurate. It is not apparent that the applicant had taken any such steps. 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 in his dealings with the agent.

    The present circumstances of the visa holder

30. The applicant did not provide information about his present circumstances in his response to the NOICC.

31. The applicant told the Tribunal that he wants to stay in Australia and work to support his mother and brother and he was hoping to apply for a ‘work visa’, which he cannot do if his visa is cancelled. The applicant told the Tribunal that he thought about applying for a Student visa but he could not do it because he used all his money.

32. The applicant told the Tribunal that he could not work once his visa was cancelled and he was supported by friends. He was recently given permission to work and has started working once a week and would have to repay money to his friends.

    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 July 2017. Approximately 20 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. The Tribunal acknowledges the applicant’s Indian police certificate.

    Any contribution made by the holder to the community.

37. The applicant told the Tribunal that he has been paying $39 a month to McGrath Cancer Foundation as he had lost a friend to cancer. Although the applicant has not presented any evidence of that, the Tribunal is prepared to accept that the applicant has contributed to the community.

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 they 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 the applicant will have limited opportunities to make visa applications onshore.  

    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. The applicant has no family in Australia.

2. The applicant states in his written submission to the delegate that he would face discrimination from family and friends if he were to return to India and that the cancelation of the visa would have a devastating impact on him. (The applicant has not put forward the same claims in his oral evidence to the Tribunal.) It is unclear why the return to India would result in the applicant being discriminated against, given that the visa in question is a temporary visa that was due to be in effect until March 2019 and the applicant would be expected to leave the country before the expiry of his visa unless he is granted another visa. Nevertheless, the Tribunal is mindful that if the applicant believes he would be persecuted as a result of his visa being cancelled or for any other reason, the applicant is eligible to make an application for a protection visa and his claims would be assessed as part of that process.

3. The applicant told the Tribunal that he has borrowed a lot of money to be able to come to Australia and he does not know what may happen if he returns without repaying. The applicant suggested that he may have to work for these people without payment. The Tribunal notes that the applicant presented no evidence of having borrowed money and of owing money to others and there is little evidence to support the applicant’s claim that he may be forced to do unpaid work. The Tribunal is not prepared to accept the applicant’s assertions without probative evidence. In any case, as noted above, the applicant is eligible to apply for a protection visa where such claims would be assessed.

4. The Tribunal finds that Australia’s international obligations would not be breached as a ruslt 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 states in his response to the NOICC that his family had spent a large sum of money on his education and the cancellation of the visa would have a devastating effect on him. The applicant refers to the discrimination he would experience as a result of the cancelation. The applicant told the Tribunal that he wants to stay in Australia and earn money to support his mother and his brother’s study and maybe he can undertake study so he can remain in Australia. The Tribunal is mindful that the visa in question is a temporary visa only which is due to expire in March 2019. The visa does not, and was not intended to, allow the applicant to remain in Australia on a long term basis. If the applicant wants to seek another visa, he has that option, although the Tribunal acknowledges that the applicant’s options would be more limited as a result of the cancellation. Thus, while the Tribunal accepts that hardship would be caused to the applicant as a result to the cancellation due to the applicant’s inability to remain in Australia and work in Australia, the Tribunal considers the degree and nature of hardship must be considered in light of the visa validity period.

6. The applicant told the Tribunal that he approached an agent to extend his visa and he was told that he could apply for a two year ‘work visa’. The applicant could not explain what visa he intended to apply for or what the visa requirements would be. He provided no evidence of having made any preparations for such visa application and the applicant’s lack of knowledge about what the visa entails or what the visa requirements might be indicates that the applicant has not made a genuine assessment of his visa options. The Tribunal is not satisfied that there is a realistic possibility of the applicant making an appropriate visa application, particularly before his subclass 476 visa would have expired.

7. The applicant told the Tribunal that he borrowed a lot of money to pay the agent to go to Australia and he wold be in trouble of he cannot earn money. The applicant repeatedly told the Tribunal that he wants to work in Australia to support his parents. The Tribunal acknowledges that evidence but as the noted above, the visa in question is a temporary visa. It is not designed the give the applicant the opportunity to remain in Australia permanently or even long term. The visa would expire in less than two weeks.

8. The applicant told the Tribunal that he trusted the agent to enable him to have better opportunities but after coming to Australia, he has spent all his savings in the past few months and he has not earned anything. If he goes back to India, he has not achieved anything. The Tribunal acknowledges that evidence and accepts the applicant’s desire to stay and work in Australia. However, as noted above, the Tribunal does not consider the visa in question to be the most suitable visa to meet his needs. This visa would not allow the applicant to remain in Australia on a long term basis.

9. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant gave bogus documents and incorrect answers on the application form and that he did not comply with s. 101 and s. 103 of the Act.

10. The Tribunal accepts that hardship would be caused to the applicant by the cancellation because the applicant’s future visa options would be more limited and because the applicant may be required to leave Australia and he would then be unable to work in Australia, which is his intention. The Tribunal accepts that the cancellation of the visa would cause financial hardship to the applicant and his family who are dependent on him. The Tribunal acknowledges there are no other known instances of non-compliance and no breaches of the law. Over a year and a half passed since the non-compliance. The Tribunal also accepts that the applicant has made a contribution to the community.

11. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations and there are no consequential cancellations.

12. The Tribunal accepts the applicant’s evidence that he relied on an agent to lodge his application and is prepared to accept that he provided genuine documents to the agent. However, the Tribunal has formed the view that the applicant had not taken adequate steps to ensure his application did not contain bogus documents and that the forms which he signed did not contain incorrect answers. The Tribunal places weight on the fact that the decision to grant the visa was based on incorrect answers and bogus documents. The Tribunal also places weight on the fact that the visa in question is a temporary visa only and while the applicant has a strong desire to remain in Australia on a longer term and to work in Australia to support his family, the Tribunal is mindful that the visa in question would not allow him to do so. In the Tribunal’s view, these factors outweigh other considerations.

13. 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

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

    Kira Raif
    Senior Member