Kumar (Migration)

[2023] AATA 3564

Kumar (Migration) [2023] AATA 3564 (14 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rakesh Kumar

REPRESENTATIVE:  Mrs PRATIBHA SHARMA (MARN: 0965020)

CASE NUMBER:  2206691

HOME AFFAIRS REFERENCE(S):          BCC2022/317963

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         14 July 2023 at 11:25 am (NSW time)

DATE OF WRITTEN RECORD:                18 October 2023

PLACE OF DECISION:  Sydney

Statement made on 18 October 2023 at 11:34am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 600 (Student) – incorrect information and bogus documents provided with application – work history and associated documents – grounds for cancellation conceded – discretion to cancel visa – application prepared by agent in home country – intention to study automotive course, but application specified cookery – told by agent he could change courses in Australia – started course then enrolment cancelled – later enrolled in automotive course before visa cancelled – comprehensive, consistent and plausible explanations – repeated denials that he worked at workplace or signed documents – forensic examination of signatures supports explanations – age and vulnerability – agent acted against instructions to fill gap in study/work history – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 103, 359A

Migration Regulations 1994 (Cth), r 2.41

APPLICATION FOR REVIEW

1. This is an application to review a decision made by a delegate of the Minister for Home Affairs who, on 3 May 2022, cancelled the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under section 109 of the Migration Act 1958 (the Act).

2.     At the hearing on 14 July 2023, I made an oral decision and gave an oral statement of the reasons for it.

3.     More recently the applicant has requested the Tribunal to provide a written reduction of those reasons.

4.     What follows is the written record.

PRELIMINARY

5.     The delegate cancelled the visa for non-compliance with Sec 101(b) and Sec 103 of the Act. The 101(b) ground was based on the provision of incorrect information in his visa application (VA) relating to his work history in India. The 103 ground was based on the provision of numerous bogus documents which the applicant, through his former agent in India, had submitted to support the VA, namely a letter of offer of 4 September 2017 from the Hotel Mohali Residency for a position as a short order cook; a letter of 29 December 2018 promoting him to the position of Sous Chef in the hotel; a reference letter from the hotel of 1 December 2021; and various pay slips from the hotel during the period from July 2021 to December of that year.

6.     The Review Application was filed on 9 May of that year and is clearly within time. 

7.     There is no issue in this review that the information which the applicant had provided in his VA regarding his work history in India was incorrect and that the documents referred to in the NOICC were bogus documents. Nor is there any issue that those things led to non-compliances with 101(b) and 103. Nor is there any issue that those non-compliances were grounds on which the delegate was entitled to cancel the applicant’s visa.

8.     There is no issue that the NOICC was a valid notice and that it complied with the relevant statutory requirements.

9.     The only issue in the review, therefore, is whether his visa should be cancelled.

Procedural aspects in the review, the hearings

10.      A Hearing Invitation was in due course sent and accepted and, at the same time, the applicant filed the statutory declaration dated 22 March 2022 which he had provided to the delegate in response to the NOICC, together with a submission from his representative in Australia, Mrs Pratibha Sharma. I have also seen other documents which the Tribunal obtained directly from the Le Cordon Bleu Cooking School (the College) consisting of correspondence between it and the applicant which precipitated the cancellation of his enrolment in the Hospitality package at that College.

11.      The initial hearing took place by video conference on 5 May 2023. The applicant was assisted by Mrs Sharma. Most of his evidence was taken through a Hindi interpreter, the applicant having a limited understanding of spoken English.

12.      After having identified some of the documentary evidence, in particular the signatures attributed to the applicant on the pay slips and the appointment letter referred to earlier, and having compared them with his signatures on the 956 Form, the Passenger Card and the statutory declaration, I was informed by Mrs Sharma that, if given further time, the applicant would engage a forensic hand-writing expert to examine the signatures on these documents in order to provide evidence in relation to the issue of whether the applicant in fact counter signed the contentious documents, namely the appointment letter and the pay slips. It appeared to me at the time that sufficient similarity existed between the signatures on those documents and on the documents which he accepted were his to warrant an investigation and, to that end, an adjournment of the hearing.

13.      Subsequently, on 23 May 2023, the Tribunal sent to the applicant via Mrs Sharma a 359A letter inviting him to comment on that evidence and, to do so, he was provided with a copy of the pay slips and appointment letter. The Tribunal requested him to provide any comments or response to that evidence by 20 June 2023, a period later extended at his request to 11 July 2023.

14.      On 11 July 2023 the applicant filed in the Tribunal a Report dated 6 July 2023 from Mr John McGinn, a Senior Forensic Document Examiner in the employ of a company known as Document Examination Solutions Pty Ltd (the Report).

15.      The resumed hearing took place again by video conference on 14 July 2023. The applicant was assisted by Mrs Sharma and a Hindi interpreter was also on hand. The applicant gave some additional oral evidence part of which arose from the fact that the Report did not contain any reference to the appointment letter as one of the questioned documents. This at first struck me as being potentially significant because much of my discussion with Mrs Sharma at the initial hearing concerned the apparent similarities between the signature which appears on that letter and those which appear on the specimen documents.

16.      Mrs Sharma has indicated, and Mr Kumar has confirmed in his oral evidence today, that she provided the 359A letter and the documents referred to in that letter to the applicant and left him to engage Mr McGinn directly. For his part, the applicant has told me that he provided to Mr McGinn a copy of all of the documents which the Tribunal had provided to him, including the appointment letter, under cover of an email which he sent to the expert on 23 May 2023. 

17.      I have no reason not to accept this evidence. I cannot explain why Mr McGinn has not referred to, much less considered, the appointment letter in the Report but on reflection, for reasons I will come to in a moment, I do not think it matters a great deal.

Credibility aspects

18.      Insofar as his credibility and reliability is concerned, I am satisfied that the applicant has given to me a full and frank account of his dealings with his former agent in India. He had difficulty with some of my translated questions, but I did not think this was the result of any prevarication or dissembling. I think he was doing his best to answer them. I think his memory for some things is not particularly good and part of his evidence is difficult to reconcile with the objective features but, overall, I am prepared to rely on much of what he has said.

19.      For the following reasons I have decided to set aside the decision under review and to substitute for that decision a decision not to cancel the applicant’s Subclass 500 Student visa. 

The material before the delegate and the decision under review

20.      I have not seen the VA but am satisfied that at the time it was filed the applicant was enrolled in the Hospitality package at the College. In support of the VA various documents were provided to the delegate among them being the appointment letter and pay slips which contained information to the effect that the applicant had been employed at the hotel as a Sous Chef as from on about 4 September 2017, a period of some 4 years. In addition to those documents, there were other documents including a promotion letter from the hotel of 29 December 2018 and an experience letter of 1 December 2021.

21.      The pay slips and appointment letter have purportedly been counter-signed by the applicant. There is no issue in the review that the subject visa was granted to him based on the information contained in these documents.

22.      I am satisfied that the applicant’s academic history in India was also given to the delegate in the form of documents which certified completion of his secondary studies up to and including Year 12.

23.      The evidence in the Department’s file indicates that it received information shortly after the applicant arrived here on 12 January 2022 to the effect that he had never been employed by the hotel either as a Sous Chef or in any other capacity. This information led to the issue of the NOICC, a document sent to him on 8 March 2022.

24.      After referring to the relevant provisions in the Act, the NOICC identifies the documents described earlier relating to his reported work history at the hotel. The delegate stated that this information and those documents suggested the relevant non-compliances and the applicant was invited to comment on them.

25.      Shortly after he received the NOICC, the applicant consulted Mrs Sharma and a response to the NOICC was prepared with her assistance. I will not pause to record the substance of the response other than to note that Mrs Sharma recites some relevant history which precipitated the VA and what the applicant had done to enable the agent in India to prepare the document. The agent is identified in the response as Bhupinder Khanpur from an agency known as CEIP Education and Immigration (CEIP). The response goes on to state that the applicant visited the agent in his office not long after his sister was married in February 2021 and told him that his father had been there in February 2020 to discuss with the agent the possibility of the applicant studying an automotive course in Australia.

26.      The response indicates that the applicant provided to the agent other documents to enable him to go ahead and prepare the VA. These included a copy of his passport and his certificates relating to his secondary studies in India. According to the response, the applicant had instructed the agent to enrol him in the automotive course and did not know that he had been enrolled in the cookery course at the College until he went back to the office to collect a copy of the Visa Grant notice. He then discovered that he had been enrolled in the Hospitality package but was told by the agent not to worry because he could switch courses once he arrived in Australia.

27.      Just pausing here, the applicant has given evidence in the review, which in substance I accept, that he was not happy about what the agent had done regarding his enrolment at the College but because he was assured that he could change courses once he arrived here did nothing about it at that stage.

28.      With the benefit of hindsight, it would have been preferable for him to have terminated the agent’s instructions immediately and to consult another agent. That he did not do so is clear. But he was relatively young, having been born in early 2000, had completed High School in or about 2017, had no commercial experience in India before he came out here, and had no tertiary education in that or any other country. He was, it is fair to say, quite vulnerable and perhaps not a little naive.

29.      I accept his evidence that he only reactivated his father’s dealings with the agent in 2021 because his mother started pressuring him to fulfil his father’s dream of him studying abroad. His father had passed away in April 2020 and that it was not until, as I have said, in early 2021 when his mother began to encourage him to pursue his education overseas.

30.      In the NOICC response, the applicant denied having any prior knowledge of the incorrect information or bogus material identified in the NOICC. He contended that the signatures which appeared on these documents were not in fact his.

31.      In addition to the submission which Mrs Sharma provided in response to the NOICC, the statutory declaration mentioned earlier was also provided. In this document the applicant denies that he had anything to do with the provision of the offending material, that the first time he came to know about them was when he was confronted with them at the College in the early stages of 2022. Although he says in the statutory declaration that he did not provide to the agent any papers with his signatures on it this is unlikely to be correct. Other evidence reveals that he did provide to the agent a copy of his passport, a document which bears his actual signature.

32.      I will not in these oral reasons set out in detail the reasoning in the decision under review other than to note that the delegate appears to have placed considerable emphasis on the fact that although the applicant had engaged an agent in India to prepare the VA he was nonetheless responsible for what the agent did, whether he was aware of it or not. Insofar as the grounds for cancellation are concerned, this finding is clearly correct. The Act makes it abundantly plain that an applicant is responsible for what an agent does or does not do in connection with the preparation of a visa application. The legislation would be unworkable otherwise.

33.      Nor do I need to reiterate the detailed findings in the delegate’s decision because, as noted earlier, the applicant’s review case accepts there is no issue that grounds for cancellation exist and that the only issue is a discretionary one, namely whether his visa should be cancelled.

34.      The delegate’s decision considers the matters which he was required to consider, namely the applicant’s response to the NOICC and the other matters referred to in the Procedural Advice Manual, including those specified in Regulation 2.41.

35.      I will come back to look at these in more detail shortly.

Evidence and other findings in the review

36.      As noted earlier, the applicant’s oral evidence in the review was given on two separate occasions. His documentary case, as it was ultimately presented, is comprehensive, consistently put and inherently plausible.

37.      A copy of the applicant’s statutory declaration was provided to the Tribunal during the review. His oral evidence is largely consistent with what he said in the statutory declaration, leaving aside the part about the non-provision to the agent of any paper with his signature on it.

38.      In his oral evidence the applicant steadfastly maintained his earlier positions, namely that the signatures on the pay slips and appointment letter were not his, that he had never worked at the hotel and did not know any person who had.

39.      The correspondence with the College is to the effect that on 7 February 2022 an email was sent to the applicant stating that it had concerns that he had provided bogus documents and information to support the VA. He was invited to attend a meeting at the College on 9 February 2022. The applicant replied immediately to that email stating that he had done nothing wrong. On 9 February 2022, he attended the meeting and again, having been confronted with the appointment letter, informed the attendees that he had no knowledge as to how that letter came into existence and denied that the signature on that letter, and those on pay slips, were his.

40.      Later, shortly after the meeting concluded, a further email was sent to the applicant asking him to provide documents to support his version of events. He did not respond to this email but nothing really turns on it because the College had insisted on a deadline which, in my view, gave him insufficient time to find documents which would almost certainly not have readily accessible. Electing not to respond to the email was unwise, it must be said, but in any event the College resolved to cancel his enrolment in the Hospitality courses a short time later.

41.      In his dealings with the College the applicant readily conceded that he had never worked at the hotel and did not know any of the persons identified in the bogus documents.

42.      Turning to the Forensic Report mentioned earlier, I am satisfied that Mr McGinn was provided with sufficient documentary material on which to base his conclusions. These are broadly to the effect that the applicant’s signature does not appear on the pay slips. It is unfortunate that he did not also examine, or report on, the signature on the appointment letter but I do not think his ultimate findings are significantly affected by this omission. If the applicant’s signatures on the pay slips were forged, as Mr McGinn’s findings indicate, it seems to me more probable than not that his signature on the appointment letter would also have been forged, most likely by the same perpetrator.

43.      Mr McGinn has identified numerous dissimilarities between the applicant’s natural signature on, for example, his passport and those which appear on the pay slips to convince me that the signatures on the pay slips are not in fact those of the applicant. I do not need to reiterate in any detail the physical dissimilarities which Mr McGinn identifies in his report. Put shortly, I am prepared to accept his foundational conclusion (paragraph 61) that the features of the signatures which are consistently represented across the questioned signatures in the pay slips are fundamentally not represented in the specimen signatures in the documents which are identified in appendix C of the Report, these being his passport, passenger card, customer application form, a document which I note he signed on 16 February 2022, a schedule of fees relating to the retainer of Mrs Sharma dated 15 March 2022, and the statutory declaration.

44.      In paragraph 63, Mr McGinn states that, although there are limitations arising from the low reproduction quality of the specimen signatures, he considered that the available features provide sufficient evidence to support the presence of simulated behaviours in the questioned signatures rather than accidental variation. Put another way, he felt that the repeating presence of the dissimilar features throughout the questioned signatures on the pay slips reinforced this view. Accordingly, he was willing to discount the possibility that the questioned signatures on the pay slips are the accidental or deliberate work of the applicant.

45.      I recognise that Mr McGinn was unable to express an opinion on whether the questioned signatures had been written by the applicant with the similarities being introduced intentionally or were completed by somebody other than him.

46.      Having considered this qualification, it is not readily apparent to me why the applicant would imitate his own signature on the pay slips by deliberately introducing dissimilarities to his actual signature. Logically, one would expect that if the applicant had been asked to sign the pay slips by the agent there would be no reason for him to deliberately introduce dissimilarities to his natural signature.

47.      For these reasons I am not prepared to find on the probabilities that the applicant is responsible for deliberately creating these dissimilarities in the signatures which appear on the pay slips. On the contrary, I accept the applicant’s evidence that he had nothing to do with the fabrication of these documents, nor with the signatures which appear on them.

48.      I am thus prepared to accept, based on the findings in the Report, that the signatures which appear on the pay slips are not the work of the applicant.

49.      Moreover, having myself closely examined the signature on the appointment letter, and having compared it to the enlarged signatures which appear on pages 21 of the Report, I am satisfied that whoever signed the pay slips in all probability also signed the appointment letter. 

50.      There are aspects of the applicant’s other evidence which I have concerns about, as did the delegate, including his account of what the agent told him about changing courses when he arrived here. His oral evidence on this topic is difficult to reconcile with what in fact he did shortly after he arrived in Sydney on 16 January 2022. His evidence is that he completed his orientation in Sydney online the next day, travelled to Brisbane on 22 January 2022 and visited the College to be measured for his uniform a couple of days later, and attended classes as from 28 January 2022 until the time when he received the first email on 7 February of that year. Obviously, if he had been given advice by the agent that he could change courses once he arrived here, questions must be asked as to why he took these steps and, perhaps more importantly, why he did not take any steps to change courses at that stage.

51.      When asked about this today he told me that he had only been in Brisbane for 2 or 3 days when he tried to contact the agent in the Melbourne office to see if he could change courses but was unable to speak to him. When asked to explain why he began his studies at the College if he was wanting to change to an automotive course, he said that he did not know how to do this and that is why he was trying to contact the agent.

52.      Although his conduct in pursuing those studies seems at first glance to be a rather odd thing to do, he was in an unfamiliar environment a long way from home, had come out here to study and had been enrolled in a course in which he had expressed no interest. This would, I think, have been a confronting scenario. I accept that, not having been able to contact the agent, his natural reaction would have been to stay on the course the agent in India had enrolled him in.

53.      I also accept his evidence that his mother had applied pressure on him to study in Australia, and that he had understood this was something which his late father had also wanted him to do.

54.      I am satisfied that he engaged the agent in India to prepare and lodge the VA, and that the agent did so purportedly on his behalf. The fact, if it be a fact, that the agent is not identified as such in the VA does not suggest to me, at least in the circumstances of this case, that the applicant did not retain him to do those things. Experience in these cases suggests that very often an unscrupulous agent will take steps to ensure that he is not identified as such in a visa application, that the document is in a form which, on its face, suggests that it was prepared and filed by an applicant acting without the intervention of an agent.

55.      I am also satisfied that the applicant provided the agent with some documents to enable him to prepare the VA and that these included a copy of his passport which he had signed.

56.      I am satisfied that the agent, or some other person at the agent’s behest, used the applicant’s signature on that document to forge his signatures on the pay slips and on the appointment letter. I am satisfied that the agent did this acting alone, without instructions from the applicant, and that he used those documents to support the VA.

57.      I accept the applicant’s oral evidence that he had instructed the agent in his initial dealings with him to enrol him in an automotive course or courses in Australia. This seems plausible given that he had a science major in his education in India. I have not seen a copy of his academic transcript but have no reason to doubt his evidence on this topic.

58.      It seems likely that the agent did this to fill a significant gap in the applicant’s work history in India. The VA was not filed until early 2022 and the applicant had by that stage no productive work or study since finishing high school in 2017. Obviously, there was almost certainly in these circumstances a perceived need to fill a significant gap in his personal history. It appears to me quite likely that the agent went ahead and concocted these documents to address this deficiency.

59.      I am satisfied that the probabilities are in this case that the agent acted without the applicant knowing anything about it. I accept his evidence that the first time he knew anything about a cookery course was when he went to the agent to collect the Visa Grant. He had contacted the agent a couple of times before he did this but said that he was given very limited information about the progress of the VA. I am satisfied that he knew nothing about his enrolment in that course until after the visa had been granted and that he went ahead with the arrangement on the assurance of the agent that he could change his enrolment on arrival here.

60.      It follows that I am satisfied that the applicant had no knowledge of what the agent had done to procure the visa until he was confronted with the offending material at the meeting which took place on 9 February 2022.

61.      On my findings the applicant’s consistent denials that the signatures on the pay slips and the appointment letter are his is corroborated by the apparently credible evidence of Mr McGinn. Whilst I am not bound to accept uncontradicted expert evidence I have no reservations in accepting it in this case.

62.      Obviously, a finding that an applicant for a visa has been complicit in a fraud should not be made lightly. Although there are aspects of his conduct which are difficult to reconcile with the objective features, I am not prepared to find that he was complicit in this fraud for that reason alone. Indeed, to do so would require me to reject the bulk of the applicant’s broader evidentiary case, including Mr McGinn’s Report.

63.      With the benefit of hindsight, as I have said, it would have been more responsible for the applicant to have done something about his enrolment in the cookery course before he left India, more particularly to notify the Department that the agent had acted contrary to his instructions. If he had done that, the applicant would not be in the position he now finds himself in. The probability is that had he brought these matters to the attention of the Department at that time the fraud would have been revealed and steps taken to rectify his position.

64.      But as I say, one must make allowances for this given the applicant’s vulnerability. As noted earlier, I accept that he was acting under the influence of his mother when he approached the agent in early 2021.

65.      Turning then to the other matters considered by the delegate in his decision, the correct information concerning the applicant’s work history in India was on any view significantly different to what was presented to the Department in the VA. However, in this review I must examine the circumstances in which this came about on the evidence which I have whether it was before the delegate, or not. That the agent acted alone is I think a significant if not overwhelming feature of this case. In most of these cases, and this one is no exception, the actual circumstances in which the fraud took place have an important, if not profound, bearing on the eventual outcome.   

66.      Insofar as the present circumstances of the applicant are concerned, I accept that he eventually enrolled in an Automotive package and the PRISMS record confirms as much. He has given evidence to the effect that he began studies in the Certificate III in Light Vehicle Mechanical Technology but his enrolment in this and the other courses comprised in the package were cancelled by the provider at or about the time when his visa was cancelled.

67.      He has not studied since. He also said, and I accept, that he has not been working because he has no work rights under his Bridging visa. He still wants to study an Automotive package. I accept his evidence on these matters. If he is given the opportunity to do so, the strong probability is that he will engage in productive studies in this field.

68.      As to the other matters referred to by the delegate, I have taken them into account but do not regard any of them to be particularly adverse. There is nothing of concern in his behaviour towards the Department, he has been responsive and co-operative. There are no other instances of non-compliance. He has been here for some time but appears not to have established any particularly strong personal or economic ties with Australia. I take this into consideration but give it little or no adverse weight. There is no evidence of any contribution to the community, but this too is peripheral. 

69.      On the issue of hardship, I do attribute some weight to this in his favour. Unless the cancellation decision is set aside the applicant will have been here for not less than 18 months without having been given an opportunity to study the courses which he wanted to engage with in the first place, courses which his parents wanted him to pursue. He will have to go home empty-handed, as it were, in circumstances where he is innocent of any wrongdoing. I am not prepared to endorse that outcome in the overall circumstances of this case.

Summary and conclusion

70.      Having considered the evidence, having found that the applicant is an innocent victim of an unscrupulous agent, and having given that and the other relevant matters appropriate weight at the discretionary level, I have concluded that the reasons for not cancelling his visa far outweigh the reasons to cancel it.

71.      Accordingly, this is a case in which the decision to cancel his visa should be set aside. 

DECISION

72.      The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 Student visa.

Michael Bradford
Member