Joy (Migration)

[2018] AATA 5254

Joy (Migration) [2018] AATA 5254 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vimal Joy

CASE NUMBER:  1825278

DIBP REFERENCE(S):  BCC2018/2393437

MEMBER:Kira Raif

DATE:26 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2018 at 12:46pm

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 – deliberate or inadvertent non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 476.212

CASES
Hasran v MIAC [2010] FCAFC 40
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 October 1990. He was granted the Skilled Recognised Graduate Class VF visa on 6 December 2017. The visa was to be in effect until 13 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. 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 29 August 2018. The applicant seeks review of the delegate’s decision.

3. On 8 November 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 23 November 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The applicant’s comments were provided to the Tribunal on 26 November 2018. The applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

   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 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?

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 Class VF visa on 26 October 2017.

    b.In support of his visa application the applicant provided an academic transcript from Kumaraguru College of Technology, which is an institution affiliated with Anna University, Chennai. 

    c.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 6 December 2017.

    d.Information on the Department’s file, which was the subject of the Tribunal’s s. 359A letter, indicates that 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.

    e.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.

11. In his written response to the NOICC and his written submission to the Tribunal of 26 November 2018 the applicant concedes that the qualifications on which he relied to obtain the visa were not qualifications. The applicant stated that after completing his study, he approached an agent in India and provided the documents required by the agent. The applicant claims that he was not aware that bogus documents were submitted by the agent and should not be responsible for the agent’s actions. In his submission to the Tribunal the applicant also provided his educational qualifications from the University of Calicut relating to the Bachelor of Technology (Chemical Engineering).

12. Having regard to the applicant’s written response to the NOICC and his evidence to the Tribunal, the Tribunal finds that the applicant did not attend Kumaraguru College of Technology. 

13. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that it should be considered that the agent, and not him, who provided the bogus documents. The Tribunal acknowledges the applicant’s evidence that the provision of bogus documents was done without his knowledge or consent. However, contrary to the applicant’s submission, 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.

14. The Tribunal finds that the applicant did not graduate from the Kumaraguru College of Technology. The Tribunal finds that the academic transcript from Kumaraguru College of Technology is a bogus document 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 was altered by a person without the authority to do so.

15. The Tribunal 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. The Tribunal finds that there was non-compliance with s. 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

16. 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).

17. 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. Briefly, they are:

    The correct information

18. The correct information is that the applicant did not attend the stated institution for the degree that is identified in his application. He has completed a different qualification and not the one he referred to in his visa application.

    The content of the genuine document (if any)

19. The genuine document would indicate that the applicant had not obtained his qualification and academic transcript from the Kumaraguru 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

20. 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 his eligibility for the visa for the purpose of cl. 476.212.

21. 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 a bogus document with his application, the assessment against PIC 4020 would have been more thorough.

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

    The circumstances in which the non-compliance occurred

23. In his responses to the NOICC the applicant states that he approached an agent to assist him with the visa and does not accept the blame for his agent’s actions. The applicant states that he has not deliberately given false or misleading information or bogus documents to the Department.

24. 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. In his written response to the NOICC and to the Tribunal the applicant states that he ‘never bothered’ checking information on his application and that he was unable to check what information has been provided to the Department. The applicant does not explain why he was unable to check and the fact that he ‘never bothered’ doing so does not excuse the failure to take reasonable steps to check the application.

25. 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. If the applicant had made even the basic 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. 

26. The Tribunal finds that by paying the agent and instructing that the application be lodged, there was an agency agreement between the applicant and his agent. 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

27. The applicant states that his family has spent a large sum of money on his education and he was hoping to make his living from his studies. He wants to gain employment in Australia and if his visa is cancelled, he will not be able to work in Australia. The applicant has not presented evidence of his present employment and there is little evidence before the Tribunal to support the applicant’s claim that he is gaining ‘valuable employment’ in Australia to use his skills upon return to India.

28. The Tribunal acknowledges that unless the applicant is granted another visa, he may be required to leave Australia and his options in Australia may be limited, however, the applicant is eligible to apply for other visas in the future.

29. The applicant claims that his family and friends and the community will discriminate against him and he will be discriminated against and would have to live his life on his parents’ terms. He would be treated as a failure by others. The Tribunal does not accept these submissions, which are vague and lacking any detail. The Tribunal notes that the applicant only holds a visa until July 2019 and would have been required to leave the country at that time. It is not entirely clear why the applicant’s presence in Australia for an additional eight months would not require him to live his life on his parents’ terms but an early departure from Australia would.

30. The applicant presented very little other information about his present circumstances.

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

31. 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

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

    The time that has elapsed since the non-compliance

33. The application for the visa was made in October 2017. Approximately 13 months passed since the non-compliance.

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

34. There are no known breaches of the law.

    Any contribution made by the holder to the community.

35. There is little information before the Tribunal about the applicant’s contribution to the community.

36. 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

37. 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 applicants from making a valid visa application without the Minister’s intervention.

    Whether there would be consequential cancellations under s.140

38. 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.   

39. There is no evidence before the Tribunal to indicate that any children would be affected by the cancellation.

40. The applicant refers to facing discrimination in his home country from parents and friends as a result of his visa being cancelled. He states he would have to live by his parents’ rules and he would be considered to be a failure. The Tribunal is not convinced that any of these matters give rise to Australia’s protection obligations but if the applicant believes that to be the case, he is eligible to seek a protection visa  where his claims could be assessed. Nothing prevents the applicant from seeking a protection visa.

41. The Tribunal finds that Australia’s non-refoulement 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 member

42. The applicant claims others would not treat him well because of the cancellation of his visa. If that is true, the Tribunal acknowledges that the cancellation of the visa could cause some degree of hardship to the applicant, although as noted above, the Tribunal is also mindful that the visa is only a temporary one and the applicant would have been expected to return to India or seek another visa, whether or not his visa is cancelled. 

43. The applicant refers to having spent a lot of money on his education and his desire to gain work experience in Australia. As noted above, the applicant has not presented any evidence to the Tribunal of his employment and it is not apparent from the evidence before the Tribunal that the applicant is gaining any relevant or useful work experience in Australia. Nevertheless, the Tribunal is prepared to accept that the cancellation of the visa may cause hardship to the applicant if he is required to leave Australia.

44. The applicant claims that he cannot be blamed for the provision of bogus documents by the agent because he was not aware of the fraud while the Department knew of the fraudulent practices. This argument has been addressed above. Essentially, the Tribunal is of the view that the applicant had the responsibility to ensure the accuracy of the documents and information submitted on his behalf and the applicant’s claim that he was not ‘bothered’ does not detract from his obligations. The Tribunal has formed the view that even if the applicant relied on an agent to lodge his application, he had the responsibility to ensure that no bogus documents were submitted.

45. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 103 of the Act because he gave, or caused to be given, a bogus document. The Tribunal has formed the view that the breach is significant because evidence of the applicant’s educational qualifications was central to his eligibility for the visa.

1. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations and there is little evidence that the cancellation would cause hardship to the applicant. While some time has passed since the non-compliance, the Tribunal does not consider the time to be significant. There re are no others who would be affected by the cancellation. The Tribunal acknowledges that there are no other known instances of non-compliance or breaches of the law. There is no information about the applicant’s contribution to the community.

2. Having regard to all of the applicant’s circumstances, the Tribunal has formed the view that the nature of the breach and the circumstances in which the non-compliance occurred outweigh other considerations. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   Conclusion

3. 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

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

   Kira Raif
   Senior Member