Juneja (Migration)
[2019] AATA 3929
•14 June 2019
Juneja (Migration) [2019] AATA 3929 (14 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Anurag Juneja
CASE NUMBER: 1714902
DIBP REFERENCE(S): BCC2016/1624089
MEMBER:Sheridan Lee
DATE:14 June 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 14 June 2019 at 1:58pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 – ICT Sales Representative – incorrect answers – Tribunal cannot be satisfied documents bogus – university authorised to grant bachelor qualifications – alleged fake university – no update on judicial proceedings against university – Bachelor of Commerce – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5, 101, 103, 107, 109, 375A
CASES
Brar v MIBP [2016] FCCA 1168
Fati v Minister for Home Affairs [2019] FCA 52
Saleem v MRT [2004] FCA 234
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 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant submitted evidence that he had been issued a genuine Bachelor of Commerce from an official university, and research had shown that the university is unauthorised and therefore not recognised under Indian law. The issue in the present case is whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 22 November 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was granted a Subclass 457 visa on 23 May 2014 to work in the occupation of ICT Sales Representative, which was to be valid until 23 May 2018. However, on 3 July 2017, the visa was cancelled under s.109 of the Act.
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.
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.
Alleged non-compliance
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 sections 101(b) and 103 on the basis that the applicant provided incorrect answers on his visa application form in respect of his academic qualifications and submitted bogus documents, being a Bachelor of Commerce certificate, issued 10 July 2012 and statements of marks for 2010, 2011 and 2012 from Bhartiya Shiksha Parishad, Uttar Pradesh.
The notice outlined that the University Grants Commission is the apex body that grants university status in India. The University Grants Commission Act 1956 (India) (UGC Act) provides that a degree can only be awarded by a university established under a central, state/provincial act or an institution deemed to be a university under s. 3 of the UGC Act or an institution especially empowered by an act of parliament to confer the degree.
The delegate provided the following evidence to demonstrate that Bhartiya Shiksha Parishad is not an institution authorised to grant bachelor qualifications:
·a list of fake universities published on the University Grants Commission website, including Bhartiya Shiksha Parishad.
·a public notice dated 9 June 2010, issued by the Bar Council of India, outlining that the Secretary of the Bar Council of India had announced that Bhartiya Shiksha Parishad is an unauthorised institution and the law course is unrecognised by the Bar Council.
·a letter from the University Grants Commission to the Bar Council of India dated March 2012, advising that Bhartiya Shiksha Parishad is not an established university by either state, central or provincial act or an empowered institution by an act of parliament to confer or grant degrees. ‘It is not recognised by the University Grants Commission under section 2(f) and Section 3 of the UGC Act 1956. It is not empowered to confer any degrees’.
In addition to evidence in respect of the authority of the university under Indian law generally, the delegate highlighted that from 2010 to 2012 the applicant spent the majority of his time in Australia on a Subclass 572 Student (Higher Education Sector) visa. During the relevant period, the applicant completed the following qualifications:
·Certificate III in Automotive Mechanical Technology, Menzies Institute of Technology
·Diploma of Automotive Management, Menzies Institute of Technology
·Diploma of Management, Automotive Management Institute
·Advanced Diploma of Business, Automotive Management.
The delegate considered that the applicant could not have been studying the Bachelor of Commerce Programme concurrently with his study in Australia. Further, an excerpt from the University Grants Commission website was provided, outlining that state universities cannot establish an off-campus/study centre outside their main campus without prior approval and no university or institution has recognised to offer online programmes.
Finally, the notice outlined that on 25 May 2016, the applicant lodged an application for a Subclass 186 visa, attaching the same education records. On 1 May 2017, the delegate sent a letter to the applicant outlining that the Department had received information that indicates that the Bachelor of Commerce Programme (B. Com) issued by Bhartiya Shiksha Parishad Uttar Pradesh and the statements of marks provided for session 2010, 2011, 2012 were bogus documents. The applicant then withdrew his Subclass 186 visa application and did not address the issue as to whether the documents were bogus.
Disclosure of information and invitation to comment on or respond to adverse information
The Minister for Immigration (or a delegate) may place restrictions on certain material given to the Tribunal by the Department. This is done by certifying in writing that disclosure of the material is contrary to the public interest or by notifying the Tribunal that it was given in confidence to the Department. On 1 October 2018, the Tribunal wrote to the applicant in respect of a certificate issued by the Department over a number of documents supplied to the Tribunal under s. 375A of the Act. The letter outlined that the Tribunal had reviewed the certificate and material supplied to the Tribunal and found the certificate to be invalid.
In particular, the Tribunal notes that the certificate outlined that the relevant documents contain details of an anonymous tip off, however it is alleged that the information was not used in the consideration of the cancellation. On the available evidence, it is arguable that the anonymous tip off was the catalyst for further investigation by the Department. Further, the Tribunal considers that it was possible to maintain the anonymity of the source of the information without withholding 37 pages of the file. Similarly, it was possible to redact personal information of government employees from the other folios referenced in the certificate without withholding the full document. Copies of the relevant documents were therefore provided to the applicant.
The Tribunal considers that the documents contain some non-disclosable information, which was redacted prior to providing the applicant with a copy. The redacted material is primarily names and contact details of individual employees within the Department of Home Affairs and the Department of Foreign Affairs and Trade. In addition, one line provided within an anonymous tip-off to the Department was redacted so as to maintain the anonymity of the source.
The letter also invited the applicant to comment on or respond to information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were:
The material provided to the Tribunal contains an anonymous tip-off given to the Department. That tip-off alleges that the applicant’s visa was obtained with a fraudulent degree and that the applicant was in Australia on a student visa when he obtained this allegedly fraudulent degree from India.
Details of information that the Department of Home Affairs received from the Department of Foreign Affairs and Trade post in New Delhi about the education system in India, including that:
·the applicant had provided evidence of a degree from an education provider in India, Bhaartiya Shiksha Parishad, Uttar Pradesh, which is not recognised by the University Grants Commission and is listed in their fake university list and therefore that the education provider cannot issue any degree certificate.
·universities in India are not permitted to provide off-campus or online programmes and therefore the evidence of the applicant’s degree comes from an education provider that is violating the rules of not providing any off-campus or online programmes.
The letter outlined that the information is relevant to the review because it indicates that the applicant does not hold a genuine Bachelor of Commerce, as claimed on his Subclass 457 visa application. Under s.101(b) of the Act it is a requirement that no incorrect answers be given or provided on the visa application form. Under s.103 of the Act it is a requirement that the applicant not give, present or provide a bogus document or cause such a document to be given, presented or provided.
It was explained that if the Tribunal were to rely on this information in making its decision, it may find that the applicant has been non-compliant with ss. 101(b) and 103, and therefore may proceed to consider whether to exercise the discretion to cancel the applicant’s visa under s.109 of the Act. The consequence of the Tribunal relying on the information is that it would be the reason, or part of the reason, for the decision under review to be affirmed.
Finally, the Tribunal noted that the documents also contained a range of information that was outlined within the delegate’s decision of 3 July 2017, which the applicant provided to the Tribunal. As such, the Tribunal did not outline that information again.
On 22 October 2018, the Tribunal received submissions from the applicant’s representative in response to the invitation. The submissions will be discussed below as they relate to each consideration.
Do the grounds for cancellation exist?
On the application form submitted for his Subclass 457 visa, the applicant outlined that he held the following educational qualifications:
·Diploma of Business
·Advance Diploma of Business
·Diploma of Management
·Bachelor of Commerce.
He also supplied a certificate issued by Bhartiya Shiksha Parishad, Uttar Pradesh, awarding a Bachelor of Commerce Programme (B. Com) on 10 July 2012 and statements of marks for subjects completed in 2010, 2011 and 2012.
As outlined above, the delegate cancelled the applicant’s visa on the basis of non-compliance with ss.101(b) and 103. In order to determine if there has been non-compliance with both sections, it is necessary to consider the authenticity of the applicant’s Bachelor of Commerce.
In submissions to the Department dated 22 June 2017, it was put forward by the applicant’s representative that the listing on the University Grants Commission website does not include Bhartiya Shiksha Parishad within the list of fake universities. The institution is only noted at the end as subject to judicial consideration and therefor yet to be classified. A list of fake universities published by the University Grants Commission in June 2010 does not include Bhartiya Shiksha Parishad, which means it had not been identified as a potential fake university until March 2012, by which time the applicant had completed the majority of his study. A letter from Bhartiya Shiksha Parishad outlining its recognitions, affiliations and accreditations dated 8 May 2017 was provided.
The submissions highlighted that even if a determination that Bhartiya Shiksha Parishad is a fake university were made in the future, it was not at the time the applicant was granted his Bachelor of Commerce. Further, the notice of intention to cancel the applicant’s visa did not stipulate how the educational documents were bogus. The applicant’s representative argued that the documents were issued by Bhartiya Shiksha Parishad to the applicant – they were not counterfeited or altered by the applicant or any other person. The applicant studied the course by distance and returned to India to sit the required exams.
Finally, it was contended that the applicant withdrew his Subclass 186 visa application as he was scared and had been advised by his previous representative that it would be better for him to withdraw the application as this would have no consequence on future visa applications.
The applicant appointed a new migration agent to represent him through the review process with the Tribunal.
In summary, it was contended by the applicant that:
·Bhartiya Shiksha Parishad is not currently included on the University Grants Commission list of fake universities. It is footnoted as a matter subject to judicial consideration.
·The Public Notice issued by the Bar Council of India relates only to law degrees, and is therefore not relevant to the applicant’s Bachelor of Commerce.
·The applicant applied for the course, paid fees and completed the required examinations to complete the study.
·The Department placed excessive weight on information contained in an anonymous tip-off.
In exercising its power of review in respect of a visa that has been cancelled under s.109, the Tribunal must decide whether there was non-compliance in the way described in the s.107 notice, as required under s.108(b).[1]
[1] See Saleem v MRT [2004] FCA 234 at [22]; Brar v MIBP [2016] FCCA 1168 at [88]-[92].
The alleged non-compliance with s.103 was described in the s.107 notice as the giving of a bogus document as defined in s.5 of the Act. The delegate considered that the Bachelor of Commerce Programme certificate was a bogus document because it was counterfeit or had been altered by a person who did not have the authority to do so, as it was issued by Bhartiya Shiksha Parishad, which was not authorised to issue such degrees.
Bogus document is defined in s.5(1) of the Act as follows:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
The Tribunal notes that the Macquarie Dictionary defines ‘counterfeit’ as “made to imitate, and pass for, something else; not genuine”.[2]
[2] See, e.g., Fati v Minister for Home Affairs [2019] FCA 52 at [34]
The way that the term ‘counterfeit’ appears in relation to the phrase ‘has been altered by a person who does not have authority do so’ in paragraph (b) of the definition, suggests that something would be counterfeit if it were issued by a person without authority. Therefore, the essential issue for establishing a reasonable suspicion that the degree and statements of marks are bogus documents is whether the institution had the authority to issue them.
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[3] However, where the existence of facts is necessary for the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[4] In the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[5]
[3] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[4] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14]. In those cases the Court was referring to the burden of proving relevant facts said to attract s.20 as in force before 1 September 1994, which in turn attracted the deportation power, but the principle would be equally applicable to visa cancellation.
[5] See, eg, Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3 and Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994).
As previously outlined, Bhartiya Shiksha Parishad has been included as a footnote to a list of fake universities on the University Grants Commission website since 2012. The footnote states “Bhartiya Shiksa Parishad, Lucknow, UP – the matter is subjudice before the District Judge – Lucknow”. The Tribunal was unable to find a record of proceedings before the Indian courts.
On 1 April 2019, the Tribunal made email enquiries with the University Grants Commission and the District Court in Lucknow. The emails asked if either body was able to provide information on the status of any judicial proceedings in respect of Bhartiya Shiksha Parishad. At the date of decision, no response has been received.
The applicant’s representative has made a number of submissions in relation to the authority of Bhartiya Shiksha Parishad to issue degrees. Of note, in submissions dated 7 December 2018, it was highlighted that the Indian Government’s Ministry of Human Resources Development (MHRD) and Department of Higher Education website acknowledges that recognition by the University Grants Commission is not a definitive requirement and outlines that there are six main categories of university. Relevantly, a State Private University is described as:
A university established through a State/Central Act by a sponsoring body viz. A Society registered under the Societies Registration Act 1860, or any other corresponding law for the time being in force in a State or a Public Trust or a Company registered under Section 25 of the Companies Act 1956.
Annexed to the submission was a translated copy of a ‘Certificate of renewal of Society under Societies Act’, valid for five years from 24 September 2009. As such, the certification covers the period of time during which the applicant completed his studies.
In addition, the applicant has submitted a letter dated 15 November 2018 from Mrs Aruna Gupta, Assistant Director of Bhartiya Shiksha Parishad, stating that it is a registered body of the U.P. Govt. wide registration no. 821/1984. The letter outlines that ‘Bhartiya Shiksha Parishad is conducting various courses including B.A./B.Com. etc. Mr Anurag Junega has completed Bachelor of Commerce (B.Com.) from Bhartiya Parishad, U.P. in the year 2012.’ Finally, the letter includes a list of various universities, educational boards and governments that have given permission of admission or employment based on qualifications gained at Bhartiya Shiksha Parishad.
In relation to the mode of study, the applicant gave evidence that his study was undertaken by open learning, which is not restricted under Indian law. The course required that he attend examinations in person, rather than online as would be the case with an online progamme. Departmental records confirm that the applicant departed Australia at the relevant times.
While the Tribunal is not free from doubt as to the authority of Bhartiya Shiksha Parishad to issue degrees, it cannot be reasonably satisfied on the available evidence that the documents submitted by the applicant are bogus. The university has been included as a footnote to the list of fake universities for approximately seven years with no update on the judicial proceedings. Despite attempting to make direct contact with the University Grants Commission and the District Court in Lucknow, the Tribunal was unable to receive any confirmation that proceedings are indeed on foot. The Tribunal notes that it makes this determination with consideration of the gravity of the consequences of cancelling the applicant’s visa. Cancellation would prohibit the applicant from working within Australia and would subject him to restrictions on the types of visas he could apply for in future.
Unlike s.103, s.101 does not include a test of reasonable suspicion. Section 101(b) provides that a non-citizen must fill in his or her application form in such a way that no incorrect answers are given or provided. The alleged non-compliance with s.101(b) was described in the s.107 notice as giving an answer that included that he had a Bachelor of Commerce qualification. Given the Tribunal’s above findings, it follows that the Tribunal cannot make a positive finding that the applicant does not hold the alleged qualification, and has therefore provided an incorrect answer.
The Tribunal finds that there has not been non-compliance in the way described in the notice given to the applicant under s.107 of the Act. It is therefore unnecessary to consider if the visa should be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Sheridan Lee
MemberATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, 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.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
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