Johnsy (Migration)
[2019] AATA 3244
•6 March 2019
Johnsy (Migration) [2019] AATA 3244 (6 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Jackson Geo Johnsy
CASE NUMBER: 1833748
DIBP REFERENCE(S): BCC2018/2361765
MEMBER:Kira Raif
DATE:6 March 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 06 March 2019 at 11:56am
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – providing bogus document and incorrect answer in visa application – widespread visa fraud involving engineering graduates – prescribed qualification from a prescribed institution – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 101, 103, 107 – 109, 111, 2 476.212, 4 PIC 4020
Migration Regulations 1994, Schedule 2 cl 476.212; r 2.41CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
Application for review
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).
The applicant is a national of India, born in September 1992. He was granted the Skilled Recognised Graduate Class VF visa on 14 November 2017. The visa was to be in effect until 9 July 2019. On 17 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 did not provide his response to the NOICC and his visa was cancelled on 8 November 2018. The applicant seeks review of the delegate’s decision.
On 25 January 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 6 March 2019. The invitation stated that if he 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 them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
On 5 March 2019 the Tribunal received from the applicant a medical certificate and a request for the hearing to be postponed. The presented certificate does not identify the applicant’s medical condition and does not provide any explanation of how it affects the applicant’s capacity to participate in the Tribunal hearing. Importantly, the certificate states that the applicant would be unfit for work or school. It does not in any way indicate that the applicant would be unfit to attend the Tribunal hearing, give evidence and present arguments. In such circumstances, the Tribunal considered the certificate to be inadequate. The Tribunal decided not to postpone the hearing on the basis of that evidence and informed the applicant on 5 March 2019 that the hearing would proceed.
The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), The applicant was also fully informed that his request for the hearing to be postponed has not been granted and that the hearing would proceed. 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
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.
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. Extracts of the Act relevant to this case are attached to this decision.
Did the Notice comply with the requirements in s.107?
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.
The Tribunal is satisfied that the Notice contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
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.
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 12 September 2017.
b.On Page 8 of the application form, in his application form, in response to a question about his educational qualifications, the applicant stated that he completed a Bachelor of Civil Engineering at KS Rangasamy College of Technology between August 2012 and April 2016.
c.The applicant signed a declaration on Pages 9 and 10 indicating that the information he provided in the form was compete, correct and up to date.
d.The applicant submitted Forms 80 and 1221.
e.In response to Question 20 of Form 80, the applicant stated that he completed a Bachelor of Civil Engineering at KS Rangasamy College of Technology in Tamilnadu.
f.The applicant signed a declaration at Question 53 of Form 80 confirming that the information he supplied with the form was complete, correct and up to date.
g.In response to Question 27 of Form 1221 the applicant stated that he completed a Bachelor of Civil Engineering at KS Rangasamy College of Technology in Tamilnadu.
h.The applicant signed a declaration at Question 46 of Form 1221 confirming that the information he supplied with the form was complete, correct and up to date.
i.In support of his visa application the applicant provided several Statements of Grades issued by KS Rangasamy College of Technology between May 2013 and July 2016, as well as a Consolidated Statement of Grades issued in July 2016. The applicant also presented an Educational Certificate issued by Anna University in November 2016.
j.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 14 November 2017.
k.The Department’s investigation found that the applicant’s consolidated statement of grades has been shown to be identical to those provided to the Department by a number of others claiming to be Bachelor of Mechanical Engineering graduates from KS Rangasamy College of Technology. In each case the subject grades, month and year of passing, date of issue and cumulative grade point average are an identical match. Only the graduate’s personal details (names, dates of births, photos and roll number), have been changed but in every other respect the documents are identical.
The applicant has not offered any explanation for the similarities between his Consolidated Statement of Grades and the statements provided by other visa applicants. The applicant has not presented any further evidence of his study at KS Rangasamy College of Technology.
Having regard to the information set out in the primary decision record, the Tribunal finds that the applicant did not attend the educational institution referred to in his application. The Tribunal reasonably suspects that the statements of grades, the consolidated statement of grades and the Educational Certificate are bogus documents 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 had 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.
The Tribunal further finds that on the application form, in response to questions about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Civil Engineering at KS Rangasamy College between August 2012 and April 2016. The Tribunal finds that the applicant completed his application forms in a way that incorrect answers were given.
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?
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).
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
The Tribunal has formed the view that the applicant did not attend the educational institution stated in his application forms. The Tribunal finds that the correct information is that the applicant did not attend the KS Rangasamy College of Technology and did not obtain the Bachelor of Civil Engineering from that institution.
The content of the genuine document (if any)
The Tribunal found that the statements of grades, the consolidated statement of grades and the educational certificate are not genuine documents. The genuine documents would not indicate that the applicant obtained a Bachelor of Civil Engineering from KS Rangasamy College of Technology.
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
Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. 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.
The circumstances in which the non-compliance occurred
The applicant has not explained the circumstances in which the non-compliance occurred.
The present circumstances of the visa holder
The applicant did not provide information about his present circumstances in his response to the NOICC or to the Tribunal.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
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
There are no other known instances of non-compliance.
The time that has elapsed since the non-compliance
The application for the visa was made in September 2017. Approximately 18 months passed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community.
The applicant has not presented any evidence of having made a contribution to the community.
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
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. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation and exclusion periods may apply. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are restrictions on the type of visas the applicant can apply for onshore.
Whether there would be consequential cancellations under s.140
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.
There is no evidence that any children would be affected by the cancellation. There is no evidence that the applicant has any family in Australia.
There is no evidence, and the applicant has not claimed, that Australia’s non-refoulement obligations would be breached as a result of 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
The applicant has not raised any other matters and has not outlined what hardship may be caused as a result of the cancellation.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had provided incorrect answers on the application form and gave bogus documents with his application concerning his study. There are grounds for cancelling his visa. There are no other breaches of the law and no other non-compliance. The cancellation would not affect another person and would not breach Australia’s international obligations. The Tribunal acknowledges that some time has passed since the non-compliance. The applicant has not presented evidence that hardship would be caused to him as a result of the cancellation.
The Tribunal places weight on the fact that the decision to grant the visa was based on incorrect information as the assessment of the applicant’s qualifications was central to his eligibility for the visa. In the Tribunal’s view, that fact outweighs other considerations.
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.
Conclusion
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.
Kira Raif
Senior Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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