Khosa (Migration)

[2019] AATA 973

Khosa (Migration) [2019] AATA 973 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mandeep Singh Khosa

CASE NUMBER:  1719596

DIBP REFERENCE(S):  BCC2014/1627491

MEMBER:Kira Raif

DATE:10 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 885 (Skilled - Independent) visa.

Statement made on 10 January 2019 at 12:02pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Residence) visa – Subclass 885 – applicant deliberately provided incorrect information concerning 900 work experience – bogus skills assessment results – deliberate and wilful attempt to mislead and falsify – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109, 140, 375A
Migration Regulations 1994, r 2.41, Schedule 8, cl 485.221,

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 885 (Skilled - Independent) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of India born in April 1989. He was granted the Skilled (Residence) Class VB visa on 14 June 2013. In July 2014 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 14 August 2014. The Tribunal, differently constituted, previously affirmed the decision to cancel the applicant’s visa. The applicant sought judicial review of the Tribunal’s decision and the matter was remitted to the Tribunal for reconsideration.

3. The Tribunal provided the applicant with a copy of the s. 375A Certificate in November 2018 and invited his comments on the validity of the Certificate. The applicant appeared before the Tribunal on 10 January 2019 to give evidence and present arguments. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. 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 has considered the validity of the NOICC. The Tribunal is satisfied that it 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.

8. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

   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. 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 Skilled Class VC visa on 16 April 2009. Included with that application was a Skills Assessment Application Outcome.

    b.The applicant applied to TRA for the skills assessment on 19 September 2008. This application included a five page statement of work experience made by Sudath Sennanayake of SS Car Care. It states that the applicant was employed as a motor mechanic by SS Car Care.

    c.On 21 April 2010 Sudath Sennanayake made a formal statement to an investigator of the Department of Education, Employment and Workplace Relations (DEEWR), stating that the applicant had never worked for him and that he does not know the applicant. Mr Sennanayake stated that he did not sign the statement of work experience and that the document is a forgery. Mr Sennanayake stated that he had not prepared that document and had never seen it before.

11. In his written response to the NOICC the applicant stated that he completed 900 hours of unpaid work experience at SS Car Care between April 2007 and April 2008 and obtained the work experience letter from the proprietor, which he presented to the TRA. The applicant stated that the proprietor wanted him to continue working for the business at a low wage and because the applicant was not prepared to do that, the proprietor threatened to inform the Immigration Department to have his visa revoked. The applicant submits that the proprietor was not telling the truth in his evidence to the DEEWR investigator and was not prepared to give evidence in court. For that reason the DPP thought it was not in the public interest to pursue the matter in court. The applicant states that there is no evidence to corroborate Sudath Sennanayake’s statement and his skills assessment has not been revoked. The applicant states that his employment reference had been verified by phone by the TRA officer.

12. The primary decision record indicates that the delegate spoke to Mr MacGill of the Fraud Investigation Unit of the Department of Industry, who advised that the applicant’s statement that Mr Sennanayake was not prepared to give evidence in court was not correct.  Mr MacGill advised that the DPP had not rejected the contents of the advice given by Sudath Sennanayake to the investigator but decided not to prosecute the applicant because it was not proved beyond reasonable doubt that the applicant had knowingly submitted or caused the fraudulent statement of work experience to be submitted to the TRA.

13. The primary decision record indicates that internet searches confirm that telephone numbers on the work reference are linked to Suzanne and Rudy Frugtniet. Rudy Frugtniet was authorised on the applicant’s behalf in relation to his TRA assessment application. The delegate considered it unlikely that a genuine work reference from a motor mechanic would contain the phone number of the applicant’s migration agent and spouse rather than of the writer of the reference. With respect to the applicant’s claim that his employment was verified by the TRA by phone, the delegate noted that any enquiries were likely to have been made using the number on the employment reference and that was the number of the applicant’s migration agent and not that of SS Car Care. It was noted that Rudy Frugtniet was under investigation for fabricating the fraudulent employment reference.

14. The primary decision record also indicates that the delegate discussed with Officer MacGill the fact that the applicant’s skills assessment had not been revoked. The applicant claims that this is evidence that the employment reference was genuine. Officer MacGIll indicated that this was not the case and in this particular case, the reason TRA did not revoke the assessment was probably due to insufficient resources and / or other priorities.

15. In his oral evidence to the first and the present Tribunal, the applicant conceded that he did not work for SS Car Care and that his agent Mr Frugtniet had completed the paperwork and made all the arrangements for the application.

16. Having regard to the applicant’s oral evidence, the Tribunal finds that the applicant had not been employed at SS Car Care between April 2007 and April 2008. The Tribunal finds that the TRA assessment issued on 3 October 2008 was a bogus document because it was obtained because of a false or misleading statement. The Tribunal finds that the applicant had given, 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. The Tribunal finds that the applicant did not comply with s. 103 of the Act.

17. 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?

18. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

19. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:

    The correct information

20. The correct information is that the applicant was not employed by SS Car Care and did not complete the relevant work experience that formed the basis of his skills assessment by the TRA.

    The content of the genuine document (if any)

21. The TRA skills assessment was based on the applicant’s work reference letter. The Tribunal has formed the view that the applicant did not work at SS Car Care and that the skills assessment was obtained because of a false or misleading statement. A genuine document would not rely on the applicant’s employment at SS Car Care.

    The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

22. It is a requirement for the grant of the Skilled visa that the applicant’s skills must be assessed as suitable for the nominated skilled occupation (see cl. 485.221). The applicant presented with his application a Skills Assessment by the TRA. The Tribunal acknowledges that between 2007 and 2011 the TRA was not properly gazetted as the relevant assessing authority, however a subsequent legislative instrument that commenced in October 2011 retrospectively specified the TRA as the relevant assessing authority for the applicant’s nominated occupation.

23. The Tribunal finds that if the applicant had not completed relevant work experience, he would be unable to obtain the positive skills assessment. The applicant’s evidence to the Tribunal is that he had been working as a car mechanic for a number of years and ‘probably’ had the relevant work experience and may have obtained the skills assessment anyway. It is difficult to make that determination because the applicant’s evidence to the Tribunal is that he did not believe the agent mentioned any other employment in the TRA application and he only relied on his employment at SS Car Care. The Tribunal finds that the applicant relied on his work experience at SS Car Care and not on any other employment to obtain the skills assessment. If he had not worked at SS Car Care, he would not have been able to obtain the skills assessment. Without the skills assessment, the applicant could not meet the requirements for the grant of the visa.

24. The Tribunal finds that the decision to grant the visa was based on the bogus document, being the TRA assessment which was obtained as a result of the applicant providing incorrect information. The Tribunal finds that the applicant would not have been entitled to the grant of the visa without the skills assessment, which was a bogus document.

    The circumstances in which the non-compliance occurred

25. The applicant claims in his written response to the NOICC that he did perform the relevant work experience at SS Car Care and that the employment reference is a genuine document. The delegate states in the decision record that the applicant may have known that a fraudulent employment reference was used to obtain the skills assessment but there is also evidence that fraudulent employment references were lodged with TRA without the applicants’ knowledge. The applicant provided to the first Tribunal a number of media reports concerning his agent. In his oral evidence to the first Tribunal the applicant stated that his migration agent did not explain to him that he needed to do 900 hours of work experience and the agent told him that he could get the TRA assessment for him. The applicant stated that he did not fill out the TRA skills assessment form or the attachment.

26. In his evidence to the present Tribunal the applicant also said that he was introduced to the migration agent and because he had no knowledge about visa requirements, he relied on the instructions given by his agent and did whatever the agent suggested.

27. The Tribunal finds the applicant’s claims unpersuasive. The applicant was the holder of a Student visa and, on his own evidence, had the intention of obtaining first the temporary and subsequently the permanent visa. The applicant told the Tribunal that after about a year of living in Australia, he decided to apply for a Skilled visa and everybody around him was doing the same. In such circumstances, the Tribunal does not accept that the applicant has not had discussion with those around him about visa requirements and that the applicant was not cognisant of at least the basic visa requirements, including requirements to obtain the skills assessment, even if he believed the process to be complex.

28. The Tribunal notes that information about visas and skilled assessments was readily available on the Department’s website. It was available if the applicant made any inquiries. The applicant’s evidence to the Tribunal is that he did not approach anyone else other than Mr Frugtniet and trusted that agent. The applicant said that as a student he had no funds to get other advice. The Tribunal is mindful that information from the Department and the TRA could have been obtained without any cost to the applicant. The Tribunal does not accept the applicant had no knowledge of what was required of him.

29. The applicant then told the Tribunal that he knew the basics, he knew that he had to obtain the TRA assessment and pass the English test and provide police checks but he did not know what was required to obtain the TRA assessment. Again, the Tribunal finds it difficult to accept that the applicant would not have made any inquiries either from his agent, friends, classmates, the internet or anyone else as to what the requirements were for obtaining the skills assessment. The applicant was uncertain as to whether he was informed about the 900 hours of work experience but said that if he was told about it, he was close to completing that work experience with other companies and did not need to make it up.

30. Again, the Tribunal finds that evidence unconvincing. The Tribunal does not accept that the applicant was unaware of the requirements, given the environment he was in and the availability of information. In the Tribunal’s view, the applicant was aware of the 900 work experience to obtain the skills assessment and knew that he did not have the requisite work experience, even if he was ‘close’. The applicant claims he was young and inexperienced and new to the Australian environment and it did not occur to him to check what the agent told him. The Tribunal notes, however, that the applicant arrived in Australia in 2007 and by the time the application was made, he had been living in Australia for a few years, had completed a course in Australia and was not completely new to the country and its customs. He was over 18 years old and not incapable of asking questions. The Tribunal does not accept that the applicant’s failure to make inquiries was due to his lack of life experience, rather than his deliberate disregard for the process.

31. The applicant told the first Tribunal that he did not sign the TRA application form. In his evidence to the present Tribunal he said he could not recall if he had signed the form. That shows, in the Tribunal’s view, that the applicant either knew that the information that was to be given on that form would be incorrect, or that he was entirely indifferent about the veracity of the information that was being submitted on his behalf. The applicant had every opportunity – indeed, a responsibility – to check the content of the form before signing. The applicant’s evidence is that he has not done that. The Tribunal finds that the applicant was complicit in the commission of fraud.

    The present circumstances of the visa holder

32. In his written response to the NOICC the applicant referred to his company ownership and his employment. The applicant provided a number of documents to the first Tribunal. These include the applicant’s employment reference concerning his employment at 2CLS Pty Ltd and other employment and character references. In his evidence to the present Tribunal, the applicant states that after his visa was cancelled, he did not know he could apply for work rights, so he could not work for two years. After he obtained work rights, he started working again. The applicant states that he has been working as a motor mechanic for a number of years and he presently works as a mechanic in Tasmania. Although the applicant presented no evidence of his current employment, the Tribunal accepts that the applicant is employed and has been gainfully employed in the past.

33. The applicant provided to the first Tribunal a statement from his partner and some evidence of the relationship. The applicant told the present Tribunal that the relationship has ended and that he is not presently in a relationship. 

34. The applicant provided to the first Tribunal a statement from his sister, who refers to a close relationship between the applicant and her family. There is no evidence before the present Tribunal about the ongoing nature of the relationship between the applicant and his family in Australia.

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

35. In his written response to the NOICC the applicant denied the information concerning his employment at SS Car Care. The applicant offered a number of reasons why the employment information which formed the basis of his TRA skills assessment was correct and the information in the NOICC was not correct. However, in his oral evidence to the Tribunal the applicant concedes that he did not work for SS Car Care.

36. The applicant told the present Tribunal that his response to the NOICC was prepared by his agent and he was aware of the letter and signed the letter. When asked why he provided information which he knew to be false, the applicant said that he simply followed what the agent told him to do and he did not know he should not do that. The Tribunal does not accept that the applicant was unaware that he should not provide false information and should instead provide truthful information to the Department. The applicant also said that he was afraid about his visa but in the Tribunal’s view, that does not justify the deliberate provision of false information to the Department.

    Any other instances of non-compliance by the visa holder known to the Minister

1. There are no other known instances of non-compliance although the Tribunal finds that the provision of incorrect information in response to the NOICC may constitute non-compliance with s. 101 of the Act.

   The time that has elapsed since the non-compliance

2. The application for the temporary visa was made in April 2009 and for the permanent visa in June 2013. Close to ten years passed since the non-compliance in relation to the Class VC visa.

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

3. There are no known breaches of the law since the non-compliance.

   Any contribution made by the holder to the community.

4. The applicant refers to his employment and the payment of taxes. The Tribunal accepts that evidence. The applicant referred in oral evidence about the donations he has made. The applicant presented no evidence of such donations but the Tribunal is prepared to accept that the applicant has made charitable donations.

5. 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

6. 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 and removed from Australia. There is no suggestion that the applicant will be detained indefinitely. There may be restrictions on the applicants’ 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, although the applicant may be subject to an exclusion period. If the visa is cancelled, the applicant would lose any entitlements he may have acquired as a permanent resident.

   Whether there would be consequential cancellations under s.140

7. There are no persons who would be affected by the consequential cancellation.

   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.   

8. There are no children affected by the cancellation. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be engaged as a result of the cancellation. The Tribunal finds that 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

9. The applicant has been residing in Australia for over ten years and the Tribunal accepts that he is settled in Australia. His evidence is that he has not lived in India for many years and considers Australia to be his home. The Tribunal accepts that evidence. He has been gainfully employed. The Tribunal also accepts that the applicant has a close relationship with his sister and her family and they provide each other with emotional support. The Tribunal accepts that considerable hardship may be caused to the applicant and others by the cancellation of the visa.

10. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s. 103 of the Act because he provided a bogus document with his visa application.

11. The Tribunal accepts that considerable time has passed since the non-compliance. During this period the applicant has established himself in Australia. He is working and contributing to the community through the payment of taxes and charitable donations. He is well regarded by others. He supports his sister and her family in Australia. The Tribunal accepts that hardship would be caused by the cancellation. The Tribunal acknowledges there are factors that indicate that the visa should not be cancelled.

12. The Tribunal found that Australia’s international obligations would not be breached as a result of the cancellation.

13. The Tribunal places significant weight on the applicant’s conduct regarding his obligations under the Migration Act. The applicant provided a bogus skills assessment results with his visa application. The Tribunal does not accept the applicant’s claim that he did not know what was being provided on his behalf. The Tribunal is of the view that the applicant either knew what his agent submitted, or that he failed to take adequate steps to make inquiries and to acquire that information. It was the applicant’s responsibility to ensure the information in his application was correct and accurate and the applicant had not taken such responsibility seriously. The Tribunal has formed the view that it was most likely that the applicant knew that he did not meet the work experience requirements and that he knew that the information that was being provided on his behalf was incorrect. At best, the applicant was recklessly indifferent about the provision of such information by the agent.

14. The Tribunal also places significant weight on the fact that the applicant continued to be untruthful with the Department following the receipt of the NOICC. The applicant provided a written response to the NOICC in which he stated that he did work for SS Car Care and that the information on which the delegate relied was incorrect. The applicant now admits that he did not work for that company and therefore his response to the NOICC was entirely untruthful. The applicant explained to the Tribunal that his agent prepared the submission and the agent told him ‘it was not serious’. The Tribunal is of the view that the applicant would have been well aware that the deliberate provision of incorrect information was serious. The fact that the applicant continued to provide untruthful information to the Department shows his complete disregard for the Australian laws.

15. The Tribunal also considers it significant that having a skills assessment was one of the key requirements for the grant of the Skilled visa. The applicant’s TRA assessment was based on his claim of having completed 900 hours of relevant work experience and the applicant’s evidence is that he has not completed that work experience at SS Car Care. Even though the applicant claims he did complete other work experience, or was close to completing 900 hours, that is not the work experience he relied on to obtain the skills assessment. If that information was known to the TRA, the applicant would not have obtained the skills assessment and would not have been entitled to the grant of the visa. In the Tribunal’s view, that consideration, as well as the applicant’s subsequent behaviour towards the Department and the circumstances in which the non-compliance occurred, being the deliberate and wilful attempt to mislead and falsify, outweigh other considerations.

16. 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

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 885 (Skilled - Independent) visa.

    Kira Raif
    Senior Member