Joseph Babu (Migration)

[2019] AATA 2752

Joseph Babu (Migration) [2019] AATA 2752 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robert Santhosh Joseph Babu

CASE NUMBER:  1825834

DIBP REFERENCE(S):  BCC2018/2431338

MEMBER:Kira Raif

DATE:19 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 19 February 2019 at 3:51pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) visas – 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 – agent submitted a different qualification – family financial difficulties – capacity to study in Australia – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 98, 100 – 105, 107 – 109, 111, 140, 359
Migration Regulations 1994, Schedule 2 cl 476.212; Schedule 4; Public Interest Criterion 4020; r 2.41

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 March 1991. He was granted the Skilled Recognised Graduate Class VF visa on 12 December 2017. The visa was to be in effect until 6 August 2019. On 3 August 2018, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 4 September 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 18 February 2019 to give evidence and present arguments. Even though the applicant’s representative Mr Ejaz Khan requested a Hindi interpreter for the hearing, the applicant informed the Tribunal that he did not speak Hindi and preferred to participate in the hearing using English and without an interpreter. Mr Khan did not attend the hearing. 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 s.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 27 October 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 Mechanical Engineering at Kongu Engineering College at Erode between 1 August 2013 and 31 May 2017.

   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.In support of his visa application the applicant provided a consolidated statement of grades issued by Kongu Engineering College, listing grates obtained from courses completed at that institution between December 2013 and May 2017.

   e.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 12 December 2017.

   f.The Department undertook integrity checks regarding the applicant’s qualifications. The Department became aware of widespread visa fraud involving applicants claiming to be engineering graduates from Anna University and its affiliated universities providing bogus academic transcripts to fulfil the requirements for the grant of the subclass 476 visas.  The Department’s investigation found that many transcripts are identical in terms of dates and grades and that personal identifies are being amended to tailor transcripts to individual applicants.

   g.The applicant’s transcript has been matched against samples from other graduates claiming to have studied the same course at the same institution and was found to have identical scores, grades and dates as other applicants.

10. In his written response to the NOICC, the applicant stated that he completed a Diploma of Mechanical Engineering at CMJ University and he provided evidence of that qualification. The applicant states that after receiving the NOICC and reviewing his file, he discovered that the agent lodged his application with documents that he had not provided to the agent. The applicant states that he was not aware of bogus documents being submitted until he received the NOICC and should not be held responsible.

11. The applicant also provided a written submission to the Tribunal on 30 November 2018. The applicant confirms that he completed a Diploma of Mechanical Engineering at CMJ University and decided to travel to Australia to gain work experience in his field of study and also to provide financial support to his parents who rely on his substantial contribution. The applicant states that he approached a migration agent in India for advice, provided his English results and other documents and paid the agent’s fees and was advised he could go to Australia on a Skilled visa.  The applicant claims that he was shocked to read the NOICC and after reviewing his file, realised the agent lodged documents which he had never seen before. The applicant states that he did not provide bogus documents to the agent and did not know the documents he gave to the agent would not be provided with his application.

12. The applicant’s evidence indicates that he had not obtained a Bachelor of Mechanical Engineering at Kongu Engineering College as a result of study between August 2013 and May 2017. On the basis of this information, the Tribunal finds that the consolidated statement of grades issued by Kongu Engineering College is a bogus document either within the meaning of s. 5(a) because it purports to have been, but was not, issued in respect of the applicant, or within the meaning of s. 5(b) because it is counterfeit or has 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, a bogus document or caused such a document 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 an incorrect answer by stating that he had completed a Bachelor of Mechanical Engineering at Kongu Engineering College between August 2013 and May 2017. The Tribunal finds that the applicant completed his application form in such a way that incorrect answers were given. The Tribunal further finds that the applicant declared in his application that the information provided in the application was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.

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. 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, a bogus document or caused such a document to be so given, presented, produced or provided. He did not comply with s.103 of the Act.

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 Migration Regulations 1994 (the Regulations). They are addressed below:

    The correct information

20. The correct information is that the applicant did not complete the Bachelor of Mechanical Engineering at Kongu Engineering College. His evidence to the delegate is that he completed a Diploma Mechanical Engineering at CMJ University. The correct information is that the applicant has completed a different qualification and not the one he referred to in his visa application.

    The content of the genuine document (if any)

21. The Tribunal has found that the academic transcript is a bogus document. Genuine documents would not indicate that the applicant obtained a Bachelor of Mechanical Kongu Engineering College. The applicant’s evidence to the Tribunal is that he holds a Diploma of Engineering from CMJ University.

    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. In his response to the NOICC and written submission to the Tribunal the applicant stated that he completed an engineering qualification, met the age and English requirements and he is not satisfied that he would have been refused a visa ‘in regards another relevant subclass’. The Tribunal is mindful that the issue relates to the visa the applicant was in fact granted and not whether he was eligible to be granted a visa in another subclass. The applicant also submits that the decision to grant was based on some genuine information, such as the PTE score, age and work experience and if the bogus documents are ‘overlooked’ and genuine information is considered, this may weigh in favour of the applicant.  The Tribunal does not accept that argument, as the eligibility for the visa is assessed by contemplating all the legislative criteria and not the select criteria which the applicant considered to be favourable.

23. The applicant told the Tribunal in oral evidence that he holds a Diploma of Engineering and not a Bachelor of Engineering and also that his education provider, CMJ University, was not affiliated with Anna University. If that is the case, it would appear that the applicant could not meet the requirements for the grant of the visa.

24. Clause 476.212 of Schedule 2 to the Regulations requires the applicant to have completed a prescribed qualification from a prescribed institution. The applicant’s evidence to the Tribunal is that his qualification did not meet this requirement. 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.

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

    The circumstances in which the non-compliance occurred

26. In his responses to the NOICC and his submissions to the Tribunal the applicant states that he wanted to work overseas to assist his family financially and he approached an agent to help him with the application. The applicant states that he was unaware that the agent submitted a different qualification. The applicant states that he had genuine intentions when applying for the visa and relied on the agent to submit the application. The applicant states that he would not have applied for the visa, and would not have borrowed a large sum of money, if he was aware of the fraud. He had borrowed a large sum of money to cover the cost of travelling to Australia and his mother’s medical costs. The applicant states that he was inexperienced in the Australian immigration laws and entrusted his application to an agent. He was not involved in any fraud but believed he was eligible to travel to Australia because he had completed an engineering qualification.

27. In oral evidence to the Tribunal the applicant also stated that he was approached by an agent in 2017 and he was told he could travel to Australia. He did the English test and signed the signature pages of the form but was not familiar with the process otherwise. After he came to Australia and spoke to others, he had doubts about the visa and asked for the FOI and soon after his visa was cancelled. Once he received the papers, he was shocked that he documents were not his documents.

28. 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. The Tribunal notes that the Department’s website provides information about subclass 476 visas and eligible institutions and that information was readily available to the applicant. The applicant’s evidence is that he did not hold an engineering degree and that his university was not affiliated with Anna University. If the applicant had made any inquiries, he would have been well aware that his qualifications did not meet the requirements for the grant of the visa for which he was applying.  The Tribunal is not convinced that the applicant was incapable to making such inquiries, even if he was not familiar with the visa application process.

29. The Tribunal is mindful that the issue is not only the provision of bogus academic qualifications but also an answer on the application form and the applicant could have easily checked the form before signing it and before it was submitted. The applicant told the Tribunal that he had signed the last page of the form and had not seen the rest of the form. If that is the case, the applicant has done nothing to ensure the correctness of the information that he submitted or that was submitted on his behalf. The applicant stated that he was not familiar with the immigration process but these are issues of common sense, rather than specific to any immigration process.

30. In the Tribunal’s view, the applicant had the responsibility to do so to ensure that any information that was being submitted on his behalf was correct. The applicant had not taken any steps to do so. The Tribunal finds that the applicant was either complicit in the actions of his agent or he was negligent in his actions and recklessly indifferent in his dealings with the agent.

    The present circumstances of the visa holder

31. In his response to the NOICC and submission to the Tribunal the applicant referred to his employment as a machine operator and establishing himself in Australia without family support. The applicant refers to having established connections with Australia citizens. The Tribunal accepts that evidence.

32. In his submission to the Tribunal the applicant refers to the financial support that he provides to his family overseas, stating it was one of the reasons for his decision to travel to Australia. The applicant states that he has borrowed a large sum of money to be able to travel to Australia. The applicant states that after arriving in Australia he began looking for a job in his field but was unsuccessful initially. The applicant refers to his present employment as a machine operator. He states he is the main earner for the family and supports his elderly parents in India. His mother is ill and relies on expensive medication which the family cannot afford without his assistance. The applicant states that his family have sacrificed a lot to allow him to come and work in Australia and gain work experience. The applicant repeatedly told the Tribunal that he wants to work in Australia. The Tribunal is mindful that the visa in question is a temporary visa only, valid until August 2019. That validity period would require the applicant to seek another visa or leave the country within a relatively short period of time.

33. The applicant told the Tribunal that he had borrowed a lot of money to come to Australia and his parents have medical issues and he wants the opportunity to study in Australia so he can work for 20 hours a week while he would be financially supported by a friend. The applicant presented no evidence of having made any arrangements to enrol in a course prior to the cancellation of his visa. He has not presented any evidence of having the funds to enrol in a course or to apply for the Student visa or evidence that he is otherwise eligible to make that application. The applicant told the Tribunal that his friend would pay for his study if he is granted a Student visa, but the applicant presented no evidence of such support being available. The Tribunal is not prepared to accept the applicant’s claim that a friend would provide him with thousands of dollars to cover his tuition and living expenses in the absence of supporting probative evidence.  

1. The Tribunal is not satisfied that the applicant genuinely intends to study and on the limited evidence before it, the Tribunal is not satisfied the applicant has the capacity to engage in study in Australia. The applicant’s intention to seek a Student visa appears to be solely to enable the applicant to work in Australia. In such circumstances, the Tribunal does not consider that the applicant’s inability to obtain a Student visa onshore would constitute hardship for the applicant.

2. The applicant told the Tribunal that he was working before his visa was cancelled and his job was still available to him. Evidence of the applicant’s past employment is before 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

3. 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

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

   The time that has elapsed since the non-compliance

5. The application for the visa was made in October 2017. Approximately 16 months have passed since the non-compliance.

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

6. 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.

7. The applicant refers to his employment in Australia. The Tribunal is prepared to accept that the applicant was making some contribution to the community through the payment of taxes when he was employed. The applicant states in his written evidence that he is passionate about being a valuable member of the Australian community and has formed connections with Australian citizens. The Tribunal is prepared to accept that evidence, although the Tribunal is mindful that, as noted above, the applicant is a holder of a fairly short visa which is due to expire in August 2019. The applicant told the Tribunal that he attends church regularly. The Tribunal accepts that evidence. The applicant also suggested that he had given donations of money and clothes. The Tribunal accepts that the applicant has made some contribution to the community.

8. 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 Procedure 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

9. If the applicant resides in Australia and 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 applicant from making a valid visa application without the Minister’s intervention.

   Whether there would be consequential cancellations under s.140

10. 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.   

11. There are no children who would be affected by the cancellation.

12. In oral evidence, the applicant told the Tribunal that he borrowed money and those who lent him money would harm him. The Tribunal does not accept that evidence. Firstly, the applicant presented no evidence to support his contention. There is no evidence that the applicant had borrowed money or of the repayment requirements. In the Tribunal’s view, that evidence should be readily available to the applicant. There is no evidence of any threats or harm or of the applicant taking any action in relation to such threats.

13. Secondly, and importantly, the applicant has not raised this claim previously. The applicant provided a detailed written submission in response to the NOICC and to the Tribunal in response to the s. 359A letter. The applicant was represented by a migration agent throughout the cancellation process. In the Tribunal’s view, if the applicant’s claims were truthful and if the applicant was genuinely fearful of any harm, he would have raised these concerns prior to the hearing. The late submission of these claims suggests they are a recent invention.

14. In any case, the Tribunal finds that the applicant is eligible to make an application for a protection visa if he believes he would be subjected to harm upon return to India. His claims would be assessed as part of that process. 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

15. The applicant states that he would suffer considerable hardship if the visa is cancelled. The applicant refers to his debt, stating that he had borrowed a substantial sum to pay for his mother’s medical expenses and also expenses associated with the visa and with his relocation to Australia. The applicant refers to the hardship he would experience as a result of his visa being cancelled. Although the applicant has not presented probative evidence of the debt, the Tribunal accepts that it is possible that the applicant did borrow money to be able to travel to Australia.  As noted above, the applicant has not presented evidence relating to any repayment responsibilities.

16. The applicant repeatedly told the Tribunal that he wants to work in Australia and that it is difficult to find a job in India. The Tribunal acknowledges the applicant’s desire to work in Australia but is mindful that the visa in question is a temporary visa only, which is due to expire in August 2019. The applicant has never been given a right to remain in Australia on a long-term basis. The Tribunal accepts that the cancellation of the visa may lead to the applicant’s departure from Australia earlier than he planned, and his job opportunities may be more limited that he had hoped for, as a result.

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 and s.103 of the Act and that there are grounds for cancelling his visa.

18. There are no other known instances of non-compliance or breaches of the law. About 16 months have passed since the breach and the Tribunal accepts that since his entry to Australia the applicant has engaged in employment, formed friendships and taken  steps to contribute to the community. The Tribunal accepts that some hardship may be caused by the cancellation of the visa because the applicant will have limited visa options in Australia and may not be able to work in Australia.  The Tribunal accepts that there are reasons why the visa should not be cancelled.

19. The Tribunal does not accept that the applicant had a genuine intention of studying in Australia or that he has the capacity to engage in studies in Australia, given his claims of financial hardship and in the absence of probative evidence about the financial support from a friend. The Tribunal does not accept that Australia’s international obligations would be breached as a result of the cancellation.

20. The Tribunal places considerable weight on the fact that the decision to grant the visa was based on incorrect information and bogus documents. The applicant’s evidence to the Tribunal is that his qualification would not have met the requirements for visa grant. That is, the applicant would not have been granted the visa if the correct information was known. The Tribunal has formed the view that the applicant did little, if anything, to ensure that the correct information and genuine documents were submitted with his application. The applicant was content to rely on the actions of the agent without taking even minimal steps himself to check the information.

21. The Tribunal finds that the circumstances in which the ground for cancellation arose, the fact that the decision to grant the visa was based on incorrect information and the significance of the incorrect information and bogus documents to the applicant’s eligibility for the visa, outweigh other considerations.

22. 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

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

    Kira Raif
    Senior Member