Marichamy (Migration)

[2019] AATA 1488

Marichamy (Migration) [2019] AATA 1488 (29 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anu Bharathi Marichamy

CASE NUMBER:  1826330

DIBP REFERENCE(S):  BCC2018/2186324

MEMBER:Kira Raif

DATE:29 January 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 29 January 2019 at 5:03pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) – Subclass 476 (Skilled – Recognisable Graduate) – non-compliance with provision – visa fraud – decision to grant visa based on incorrect information – bogus documents – not satisfied applicant has genuine intention to pursue study – education qualification central to eligibility of visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 98, 100-105, 107, 109, 111, 140
Migration Regulations 1994 (Cth), r 2.41, 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 May 1995. She was granted the Skilled Recognised Graduate Class VF visa on 9 August 2017. The visa was to be in effect until 12 March 2019. On 8 August 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 and s. 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 19 September 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her 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. The Tribunal is satisfied that the Notice contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

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 s. 101 and s. 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 Class VF visa on 3 July 2017.

   b.In her application form, the applicant stated that she completed a recognised course at a recognised institution in the 24 months before lodging the application.

   c.In response to a question about post-secondary qualifications, the applicant stated that she completed a Bachelor of Mechanical Engineering at Sethu Institute of Technology at Madurai between 1 August 2012 and 30 April 2016.

   d.The applicant signed a ‘declaration for all applicants’ as part of the application form confirming that she provided complete and correct information in every detail on the form and any attachments.

   e.The applicant also provided a signed and dated form 80. In response to Question 20 the applicant stated that between August 2012 and April 2016 she had undertaken a Bachelor of Engineering in Mechanical Engineering at Sethu Institute of Technology.

   f.The applicant submitted a Form 1221. In response to Question 27 of that form the applicant stated, in relation to her post-secondary qualification, that she completed a Bachelor of Mechanical Engineering at Sethu Institute of Technology in 2016.

   g.In support of her visa application the applicant provided

   i.a provisional certification from Anna University which states that he applicant completed a Bachelor of Mechanical Engineering, First Class, in April 2014.

   ii.a certificate  from Anna University dated January 2017 which refers to the applicant being admitted to the degree of Bachelor of Engineering in Mechanical Engineering First Class in April 2016.

   iii.a Consolidated Statement of Grades (Academic Transcript) dated 29 June 2016

   h.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 19 August 2017 and she entered Australia on 12 September 2017.

   i.The Department subsequently became aware of visa fraud involving applicants who claim to be engineering graduates from Anna university and its affiliated institutions providing bogus consolidated statements of grades which were identical in terms of dates of issue, branch, courses and results. These have been amended to tailor individual visa applicants (name and dates of birth). The integrity checks conducted indicate that Consolidated Statements of Grades all reflect identical subjects studied, in an identical order, with identical course outcomes (including credits, grade points and letter grades). The applicant’s Consolidated Statement of Grades was compared to samples from other visa applicants claiming to have studied the same course at Sethu Institute of Technology and have been found to have identical dates of issue, branch, courses and results.

10. In her written response to the NOICC the applicant stated that getting education is the priority in her family and she genuinely completed her studies in India before applying for the visa. She then approached an agent, as she had no knowledge about visas, and did not know of any wrong-doing on the part of the agent. She is not responsible for any bogus documents submitted by the agent. She is totally innocent and did not complete form 80. She was advised to sign the documents and the rest was done by the agent who is now refusing to accept the fact that they have fabricated her information.

11. In oral evidence to the Tribunal the applicant said that she did not attend Sethu Institute of Technology but attended Karpagam College. The applicant provided to the Tribunal evidence of her interactions with the agency and also evidence of having obtained a Bachelor of Electrical and Electronics Engineering from Karpagam College, affiliated with Anna University.

12. The applicant’s response evidence indicates that she had not obtained a Bachelor of Mechanical Engineering at Sethu Institute of Technology as a result of study between August 2012 and April 2016. On the basis of this information, the Tribunal finds that the provisional certificate, the certificate and the Consolidated Statement of Grades from Sethu Institute of Technology are bogus documents either within the meaning of s. 5(a) because they purport to have been, but were not, issued in respect of the applicant, or within the meaning of s. 5(b) because they are counterfeit or had been altered by a person who does not have 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.

13. The Tribunal further finds that on the application forms, Forms 80 and 1221 in response to questions about her qualifications, the applicant gave incorrect answers by stating that she had completed a Bachelor of Mechanical Engineering at Sethu Institute of Technology between August 2012 and April 2016. The Tribunal finds that the applicant completed her application form in a way that incorrect answers were given. The Tribunal further finds that applicant declared in her application that the information provided in the application was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.

14. The Tribunal acknowledges the applicant’s submission that she did not provide the bogus qualifications to the agent or the Department and did not complete the forms and that she was unaware of the fraud which was committed by the agent. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers and bogus documents was done without her knowledge or consent. However, the Tribunal is of the view that by instructing the agent to prepare and lodge the application for her, and paying the fees for the service, the applicant created an agency arrangement between herself and the agent preparing her application.

15. Further, 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 her application form, she is taken to do so if he causes it to be filled in or if it is otherwise filled in on her behalf. Section 100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s. 111 states that sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers or bogus documents.

16. The Tribunal finds that the applicant filled in or completed her application form in a way that incorrect answers were given or provided and she 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. She did not comply with s. 103 of the Act.

17. 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?

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 did not attend Sethu Institute of Technology and did not obtain a Bachelor of Mechanical Engineering from that institution. The correct information that the applicant holds a Bachelor of Electrical and Electronic Engineering from Karpagam Institute. 

    The content of the genuine document (if any)

21. The genuine documents would not show that the applicant holds a Bachelor of Mechanical Engineering from Sethu Institute of Technology. The genuine documents would relate to a Bachelor of Electrical and Electronic Engineering from a different institution.

    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

22. 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 her eligibility for the visa. The Tribunal finds that the decision to grant the visa was based on incorrect information and bogus documents relating to the applicant’s study.

23. The applicant told the Tribunal that she has presented the genuine documents to the agent and that she did meet the requirements for the grant of the visa as she is an engineering graduate from Anna University. However, the Tribunal notes that the applicant did not rely on her genuine documents when making the application. She relied on bogus documents and incorrect answers by claiming to have completed a different course. It is not necessary for the Tribunal to determine whether the applicant could have met the visa requirements if the correct information was known. It is sufficient that the decision to grant the visa was based on incorrect information and bogus documents. Should the applicant choose to make another application on the basis of genuine documents, she can explore that option.

    The circumstances in which the non-compliance occurred

24. In her responses to the NOICC the applicant states that after completing her study, she wanted to work overseas and approached an agent. She told the Tribunal that she had some problems at home and was not safe, so her mother suggested for her to travel overseas. The agent suggested a visa for Australia and explained the visa process to the applicant and requested certain documents, which the applicant provided. The agency also promised to help her with employment in Australia.

25. In oral evidence, the applicant told the Tribunal that she posted the original and genuine documents to the agent and she was not responsible for what the agent had done. The applicant said that she completed the forms with correct information but the agent also asked her to sign a blank form in case there were mistakes. The Tribunal is mindful that this evidence contradicts the applicant’s claim in response to the NOICC that she did not fill in Form 80.

26. The Tribunal finds the applicant’s evidence problematic. The Tribunal is of the view that the applicant had both the responsibility and ample opportunities to learn what evidence was being submitted on her behalf. The applicant could have made inquiries with the agent, particularly before the application was made, and she could have made a request to check the entire application before its lodgement. The applicant told the Tribunal that the agent assured her that everything was fine, she had no knowledge and trusted the agency. The applicant confirmed she has not done any checks at all to ensure that the information and documents submitted on her behalf were correct and accurate.

27. The Tribunal is mindful that the issue is not only the provision of bogus academic qualifications but also an answer on the application form and the applicant could have easily checked the form before signing it and before it was submitted. In her written response to the NOICC the applicant states that she did not fill in Form 80 but in oral evidence the applicant states that she did fill in the form but also signed a blank form. She has not checked the content of the forms. In the Tribunal’s view, the applicant had the responsibility to do so to ensure that any information that was being submitted on her behalf – and which had been signed by her – was correct and accurate. It is not apparent that the applicant had taken any such steps.

28. The Tribunal finds that the applicant was either complicit in the actions of her agent or she was negligent in her actions and recklessly indifferent in her dealings with the agent.

    The present circumstances of the visa holder

29. The applicant claims in her response to the NOICC that her family has spent a large sum of money to enable her to work in Australia and utilise the skills she acquires in Australia when returning to India. The Tribunal is prepared to accept that obtaining the Australian visa would have required a financial contribution from the applicant. The applicant’s evidence to the Tribunal is that through employment in Australia she has been able to repay the debts.

30. The applicant states that she would not be able to study if her visa is cancelled. The Tribunal notes that the applicant may be eligible to apply for a Student visa in the future, although she may be subject to an exclusion period as a result of the cancellation. The Tribunal considers it significant, however, that the applicant presented no evidence of having made any arrangements to enrol in a course since entering Australia. She told the Tribunal that she was expecting to be sponsored by a company and was not concentrating on studying. In the Tribunal’s view, if the applicant had a genuine intention of undertaking study in Australia, she could have pursued that option before her visa was cancelled. The applicant told the Tribunal that she could not afford to study in the past but now she had paid the various loans through casual employment and she would be able to borrow money again to apply for the Student visa. As noted above, the Tribunal is of the view that if the applicant genuinely intended to study in Australia, she could have made arrangements to study before the cancellation of the visa. In the applicant’s particular circumstances, the Tribunal does not consider that any limitations the applicant may have on future study in Australia, or the delay in future study as a result of an exclusion period, would constitute significant hardship to the applicant.

31. The applicant told the Tribunal that she had been working as a causal for a while but due to the cancellation of her visa, she cannot work. She last worked continuously in February 2018 and did casual jobs until about May 2018. The applicant claims she has not worked since May 2018. Since that time she has tried to have her qualifications recognised because she was hopeful that a company would sponsor her. She also tried to get permission to work. As the applicant chose not to engage in employment even while she had work rights, the Tribunal does not accept that the applicant’s inability to work as a result of her visa being cancelled would constitute hardship to the applicant. This is particularly so as the visa in question would expire on 12 March 2019 and the applicant would have very limited time to work in Australia in the future unless she is granted another visa.

32. The applicant claims in her written evidence to the delegate that her family and friends will discriminate against her as a result of her visa being cancelled and she will be discriminated against and would have to live her life on her parents’ terms. The cancellation of the visa would be devastating. (The applicant did not pursue these claims in oral evidence.) The Tribunal does not accept these submissions, given that the applicant only holds a visa until March 2019 and would have been required to leave the country at that time. It is not entirely clear why the applicant’s presence in Australia for an additional six weeks would affect the way she is required to live her life or her interactions with friends and family. In the Tribunal’s veiw, the applicant is an independent adult and can choose to live her life in any way she desires.  As for the applicant’s claimed desire to study in Australia, as noted above, there is no evidence that the applicant had undertaken any steps to enrol in a course since her entry to Australia and before her visa was cancelled and if that is her genuine intention, the applicant may be eligible to seek a Student visa in the future, albeit such an application may be subject to an exclusion period.

1. The applicant states in response to the NOICC that she came to Australia for the sole purpose of gaining employment and returning to India. That seems to contradict the applicant’s evidence to the Tribunal that she cannot return to India, was trying to arrange a sponsorship in Australia or intended to study 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

2. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the above provisions

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

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

   The time that has elapsed since the non-compliance

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

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

5. There are no known breaches of the law.

   Any contribution made by the holder to the community.

6. The applicant has not presented any evidence of having made any contribution to the community.

7. 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

8. If the applicant’s visa is cancelled, unless she is granted another visa, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she 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 although the Tribunal acknowledges that the applicant may have limited options to make an application onshore.

   Whether there would be consequential cancellations under s.140

9. There are no persons 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.   

10. There are no children who would be affected by the cancellation.

11. The applicant refers in her response to the NOICC to facing discrimination in her home country from parents and friends and the community as a result of her visa being cancelled. She states she would have to live by her parents’ rules. The Tribunal is not convinced that any of these matters give rise to Australia’s protection obligations.

12. In oral evidence to the Tribunal the applicant states that she had a problem with a boy in India and he threatened to kill her. The Tribunal is mindful that the applicant made no mention of the matter in her response to the NOICC and in any of her evidence to the Tribunal prior to the hearing, despite making written submissions to the Tribunal and despite being represented by a migration agent. The applicant told the Tribunal that it was personal and she did not want to talk about it, but the Tribunal notes that the applicant had no difficulty discussing the issue with the Tribunal. The Tribunal also notes that the applicant claims that the problems with the boy were the main reason she left India and the reason she cannot return to India. If true, these claims would be quite significant and the Tribunal does not accept that the applicant would be too shy to mention such significant claims, particularly when responding to the NOICC and facing a real prospect of her visa being cancelled. Neither does the Tribunal accept the applicant’s explanation that she now realises the Tribunal would make a ‘final decision’. The applicant would have realised the delegate’s decision to cancel her visa was quite significant and one that warranted the disclosure of something she claims to be so central to her inability to return to India. The fact that the applicant made no mention of this issue throughout her multiple interactions with the Department and the Tribunal suggests to the Tribunal that this is a recent invention and the Tribunal does not accept that the applicant has been truthful in her claims.

13. Nevertheless, if the applicant believes that to be the case, she is eligible to seek a protection visa where her claims could be assessed. The applicant told the Tribunal that she thought about protection visas but because she would not have permission to work, she did not pursue that option. The Tribunal is mindful that the applicant’s Subclass 476 visa is due to expire in March 2019 and even if the cancellation were to be set aside, the applicant would be required to leave Australia in less than two months. In the Tribunal’s view, if the applicant was genuine in her claims and if she was genuinely fearful of harm, the applicant’s primary consideration would be to seek longer term protection in Australia, rather than work rights. The applicant’s evidence supports the Tribunal’s view that the applicant has not been truthful in her claims.

14. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation because the applicant’s claims could be assessed as part of a different process in relation to a protection visa application she is eligible to make.

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

15. The applicant states she may be mistreated by her family and others if her visa is cancelled. She states that she cannot pursue study in Australia and that a lot of money has been spent to enable her to travel to Australia. As noted above, the Tribunal does not accept these claims, given that the visa in question is a temporary visa only which was due to expire in 2019. The Tribunal is not satisfied that the applicant has a genuine intention to pursue study in Australia, given that she has not made any effort to enrol in a course or apply for a Student visa since entering Australia and before her visa was cancelled. The Tribunal accepts that certain hardship would be caused as a result of the cancellation but does not consider such hardship to be significant.

16. The applicant states that she has no local experience because she came to Australia after graduating and it would be difficult for her to get jobs in India. The Tribunal is mindful that the applicant chose to cease employment months before her visa was cancelled. Her evidence to the Tribunal that she has not worked on a full-time basis since April 2018 and has not taken up casual jobs since May 2018. As such, the applicant is not gaining much work experience in Australia. The Tribunal is also mindful that the visa in question would expire in March 2019. The applicant does not have much time to gain experience in Australia, even if her visa is reinstated. The Tribunal acknowledges that the applicant may wish to remain in Australia longer but she presented no evidence of having applied for, or of having made arrangements to apply for, another visa. The applicant ultimately told the Tribunal that she might study in Australia. That is, her intention is not to gain the experience to enable her to find a job but rather to study. The applicant has not presented any evidence of having sought employment in India and of having been denied employment. The Tribunal does not accept that the cancellation of the visa would affect the applicant’s capacity to gain employment in India.

17. The applicant also states that the Indian employers would not offer her jobs because of the visa cancellation. She claims that visa cancelation would be known through background checks. The Tribunal is not satisfied that would be the case, given that the applicant’s interactions with the Australian Immigration authorities are confidential. In any case, even if the information is known, the applicant has not satisfied the Tribunal that the employers in India would be concerned by the cancellation of her Australian visa. Again, the Tribunal is not satisfied that the applicant’s future employment prospects in India would be affected by the cancellation.

18. The applicant states that if she has a job offer in India which involves placement in Australia, it would be difficult for her to return to Australia because of the visa cancellation. The Tribunal considers that evidence purely speculative as there is no suggestion that the applicant would be offered a job which requires placement in Australia. However, if that was the case, the Tribunal is mindful that if an exclusion period applies in relation to whatever visa the applicant may choose to apply for, there are waiver provisions in relation to such an exclusion period. Thus, the Tribunal does not accept that the applicant’s future employment would be adversely affected as a result of the cancellation.

19. The applicant told the Tribunal that if her friends in India would know that she came to Australia on bogus documents and had her visa cancelled, they would look down on her and would not associate with her and would discriminate against her. It is unclear to the Tribunal how the applicant’s friends would know about the visa cancellation or the basis for the cancellation. The applicant said that people would know because her family would know and rumours would spread and also because she would return to India earlier than expected. The Tribunal is mindful that the applicant’s visa would expire in mid-March 2019 and if the applicant were to leave Australia, she would be leaving at about the same time as she would otherwise be expected to leave. The applicant conceded in her oral evidence that the timing would no longer be an issue.

20. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s. 101 and s. 103 of the Act. Contrary to the applicant’s claim that she is not to blame and that the provision of bogus documents and incorrect answers were done by her agent, the Tribunal has formed the view that the applicant has not taken adequate steps to check the correctness of her application and to ensure that the information and documents provided on her behalf were correct and genuine.

21. There are no other known instances of non-compliance and no other known breaches of the law. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations.

22. The Tribunal acknowledges that there will be significant legal consequences to the cancellation, in particular, the applicant will have limited opportunities to apply for other visas and may be subject to an exclusion period in relation to some applications. The Tribunal accepts that certain hardship would be caused to the applicant as a result of the cancellation because the applicant will not be able to, or will have limited opportunities to remain in Australia and to pursue work or study options. The Tribunal has rejected the applicant’s claims that her employment in India would be affected, although the Tribunal acknowledges the applicant’s evidence that her preference is to remain and work in Australia.

23. The Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect answers and bogus documents. The Tribunal is of the view that this factor, and the circumstances in which the non-compliance occurred, outweigh other considerations.

24. 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

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

    Kira Raif
    Senior Member