Kuppusamy (Migration)

[2019] AATA 1803

Kuppusamy (Migration) [2019] AATA 1803 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajkumar Kuppusamy

CASE NUMBER:  1902354

DIBP REFERENCE(S):  BCC2018/4062886

MEMBER:Kira Raif

DATE:23 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 May 2019 at 12:23pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – ground for cancellation – incorrect information in visa application – bogus documents – academic qualifications – consideration of discretion – role of migration agent – responsibility of visa holder to ensure accuracy of application – grant of visa based on incorrect information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 101, 103, 107, 109, 111
Migration Regulations 1994 (Cth), Schedule 2, cl 476.212

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of India born in March 1991. He was granted the Skilled Recognised Graduate Class VF visa on 22 January 2018. The visa was to be in effect until 1 August 2019. On 14 December 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 31 January 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 15 April 2019 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 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. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101 and 103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:

   a.The applicant made the application for the Skilled Recognised Graduate Subclass 476 visa on 23 November 2017.

   b.On page 8 of the application form, in response to a question about his overseas qualifications, the applicant stated that he completed a Bachelor of Mechanical Engineering at Kongu Engineering College at Erode, between 1 August 2013 and 31 May 2017.

   c.On pages 9 and 10 of the application form the applicant signed a declaration that all the information he provided in the form was complete, correct and up to date.

   d.In support of his visa application the applicant submitted a number of Statements of Grades dated between April 2014 and May 2017. The applicant submitted a Consolidated Statement of Grades dated 18 May 2017 and a Provisional Certificate dated 22 June 2017.

10. The Department’s decision record indicates that the Department undertook integrity checks regarding the applicant’s qualifications. The applicant’s Consolidated Statement of Grades has been found to be identical to other Consolidated Statement of Grades provided by other graduates claiming be graduates of Bachelor Mechanical Engineering from Kongu Engineering College. These have identical subjects, grades, month and year of passing and grade point average and only personal details (such as names, dates of birth, photos and roll numbers) have been changed.

11. In his written response to the NOICC the applicant states that he approached an agent SmartDart International to prepare his visa application and did not know what documents his agent submitted as he did not receive a copy. The applicant states that he provided genuine documents to the agent and assumed that these were provided to the Department. The applicant states that he was aware of the seriousness of providing incorrect answers and is upset by the situation. The incorrect information was provided without his permission. He tried to contact the agent but has not been able to speak to the agent.  The applicant provided with his submission to the delegate evidence of his contact with SmartDart International, a copy of the acknowledgement letter and evidence of his study for a Bachelor of Electronics and Communication Engineering which he completed at Anna University.

12. In his submission to the Tribunal of 11 April 2019 the applicant also states that he approached an agent who prepared all the papers for him and the applicant states that he relied on the agent and was misled by the agent and was not party to the fraud. The applicant sates that the agent changed his personal details so he could not check the application online.  

13. The applicant confirmed in oral evidence that he holds a Bachelor of Electronic Engineering from a different institution. The applicant states that he gave genuine documents to the agent and signed the form and he did not know until receiving the NOICC that the agent

14. The applicant’s evidence indicates that he had not obtained a Bachelor of Mechanical Engineering from Kongu Engineering College as a result of study between 2013 and 2017. The applicant’s evidence to the delegate and the Tribunal is that he completed a Bachelor of Electronic and Communication Engineering and graduated in 2012. On the basis of this information, the Tribunal finds that the various Statements of Grades and the Consolidated Statement of Grades issued by Kongu Engineering College issued between 2014 and 2017, as well as the Consolidated Statement of Grades and the Provisional Certificate are bogus documents within the meaning of s.5(a) because they purports to have been, but were not, issued in respect of the applicant or within the meaning of s.5(b) because they were altered by a person without the authority to do so. The Tribunal finds that the applicant has given, presented, produced or provided to an officer or the Minister, bogus documents or caused such documents to be so given, produced or provided.

15. The Tribunal further finds that on the application form, in response to a question about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Mechanical Engineering at Kongu Engineering College between 2013 and May 2017. The applicant’s evidence in response to the NOICC is that he did not attend that institution and did not obtain that qualification. The Tribunal finds that the applicant completed his application form in a way that an incorrect answer was given. The Tribunal further finds that the applicant declared in his application form that the information provided in the application form was complete, correct and up-to-date. The Tribunal finds that this was also an incorrect answer.

16. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers and 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 ss.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.

17. The Tribunal finds that the applicant filled in or completed his application form in a way that incorrect answers were given or provided and he did not comply with s.101 of the Act. The Tribunal also finds that the applicant gave, presented, produced or provided, to an officer or the Minister, a bogus document or caused such a document to be so given, presented, produced or provided. He did not comply with s.103 of the Act.

18. For these reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

19. 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).

20. 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

21. The correct information is that the applicant did not undertake study at Kongu Engineering College and did not obtain the Bachelor of Mechanical Engineering at that institution.

    The content of the genuine document (if any)

22. The content of the genuine documents would not show that the applicant obtained the Bachelor of Mechanical Engineering at Kongu Engineering College.

    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

23. Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of his eligibility for the visa.

24. Further, the applicant would have been required to meet PIC 4020 before he could be granted the visa and if it was known that the applicant gave information that was false or misleading in a material particular and a bogus document with his application, the assessment against PIC 4020 would have been more thorough. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information and on a bogus document.

25. The applicant’s evidence is that he does hold an engineering degree from Anna University and he provided evidence of his qualifications in response to the NOICC. However, the applicant did not rely on that qualification when seeking his visa. The applicant relied on a different engineering degree from a different institution, a qualification which he did not hold. The Tribunal is also mindful that the applicant’s evidence indicates that he completed the degree in 2012, well over the two years prior to lodgement, as required by legislation. In his submission to the Tribunal of 11 April 2019 the applicant concedes that he would not have been entitled to the visa if the correct information was known.

26. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information and on a bogus document.

    The circumstances in which the non-compliance occurred

27. The applicant claims that he approached an agent to prepare and lodge the application on his behalf and did not receive a copy of the application. He states that he gave genuine documents to the agent and was unaware of what the agent was lodging. The applicant states that the agent changed information in his application so that he could not access the application online and check it.

28. The applicant to the Tribunal that the agent told him to complete only personal details and not the other information on the form. The applicant notes that the acknowledgement letter was ‘doctored’ by the agent which support his claim that the agent was the one who falsified the information and he was not involved. The applicant stated that he “totally believed” the agent and did not know about the two year requirement, otherwise he would not have made the application. The applicant states that he was concentrating on his English exam and did the form during the break, so he was not concentrating on the form. The Tribunal finds that evidence problematic. The applicant had every opportunity to check the forms before signing. He had not done so. He signed the blank document without taking any steps to ensure the correctness of the form. The applicant also told the Tribunal that he did not check the Department’s website to see the visa eligibility. The applicant stated that a relative recommended the agent and he trusted the agent and since this was his first travel overseas, he did not know what the requirements were. However, the Tribunal does not consider that the issue here is the applicant’s lack of knowledge of Australian immigration laws. The issue here is the applicant’s personal responsibility for his application. The Tribunal has formed the view that the applicant has not taken adequate effort to ensure his application contained correct answers and genuine documents. 

    The present circumstances of the visa holder

29. The applicant provided a number of personal documents with his response to the NOICC, including his police certificate, evidence of his past study and employment and copies of documents relevant to his visa application. The Tribunal acknowledges that evidence. The applicant provided evidence of his employment, including employment references and his tax assessment notice and states that he is a good employee. The Tribunal also accepts that the applicant has been gainfully employed in Australia.

30. The applicant told the Tribunal that he completed one year as an electronic engineer and continues to work. He started as a testing engineer and after two months he was promoted as a senior warranty technician.

31. The applicant told the Tribunal that he fulfilled the purpose of his visa as he has gained employment experience as an electronic engineer. He states that if his visa is reinstated, it would help his career. The Tribunal does not accept that this is so, given that the applicant’s visa would expire on 1 August 2019 and the applicant has no right to remain in Australia beyond that date. That is, the Tribunal is not satisfied that the applicant’s future career would be affected whether he may be required to leave Australia now as a result of the cancellation of the visa or in two months as a result of the visa expiry.

32. The applicant told the Tribunal that his company informed him that they could sponsor him for a further visa. At the applicant’s request, the Tribunal granted the applicant time to provide evidence that the company was willing to sponsor the applicant or that he had a realistic option of obtaining another visa. The applicant did not provide any further evidence to the Tribunal within the time granted.

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

33. 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

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

    The time that has elapsed since the non-compliance

35. The application for the visa was made in November 2017. Approximately 17 months passed since the non-compliance.

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

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

    Any contribution made by the holder to the community.

37. The applicant refers to his employment to Australia and the payment of taxes. The Tribunal accepts that evidence. 

38. 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

39. 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 he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

    Whether there would be consequential cancellations under s.140

40. 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.   

41. The applicant has no family in Australia. There are no children who would be affected by the cancellation. The applicant does not claim that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

1. The applicant states that he intended to seek permanent residence and the cancellation of the visa would impose an exclusion period. The applicant told the Tribunal that he has elderly parents and he supports his parents. He could not get a job in his field in India but he is able to work in Australia and support his parents as the only child. The applicant presented no evidence of being unable to obtain a job in his field in India and the Tribunal does not accept that evidence. The applicant also refers to having debts but presented no evidence of any outstanding debts and the Tribunal is not prepared to accept the applicant’s assertions without probative evidence.

2. The Tribunal is prepared to accept that the applicant provides financial support to his parents and that his preference is to remain in Australia and work. However, the Tribunal is mindful that the visa in question is a temporary visa only which is due to expire in August 2019. It does not permit the applicant tor remain in Australia permanently or even long term. Its purpose is not to enable the applicant to remain in Australia and work in Australia on a long term basis. The applicant’s evidence is that he wants to apply for another visa. The Tribunal gave the applicant the opportunity to present evidence that he is able to apply for another visa and he has not done so. While the Tribunal accepts that the cancelation of the visa would affect future visa applications, the Tribunal is not satisfied on the evidence before it that the applicant would have applied for a permanent visa, has his visa not been cancelled.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 101 and s. 103 of the Act. While the Tribunal accepts the applicant’s evidence that he relied on an agent to prepare his application, the Tribunal has formed the view that the applicant did not take adequate steps to ensure the accuracy of his application before its lodgement. The Tribunal accepts that certain hardship would be caused by the cancellation, particularly because the applicant may be unable to remain in Australia, and work in Australia, for as long as he wished and that would have financial implications for the applicant and his family. The cancellation of the visa would also have significant repercussions for future visa applications. There are no known instances of other non-compliance or breaches of the law and no other person would be affected by the consequential cancellation.

4. The Tribunal is mindful of the applicant’s evidence that he would not have been entitled to the grant of the visa if the correct information was known. The Tribunal finds that the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa was based on incorrect information and bogus documents, outweigh other considerations.

5. 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

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

   Kira Raif
   Senior Member