Marimuthu (Migration)

[2019] AATA 404

Marimuthu (Migration) [2019] AATA 404 (13 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aravindh Marimuthu

CASE NUMBER:  1824921

DIBP REFERENCE(S):  BCC2018/2432166  

MEMBER:Kira Raif

DATE:13 February 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 13 February 2019 at 11:30am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) visas – Subclass 476 (Skilled – Recognised Graduate) – providing fraudulent document and incorrect answer with visa application – educational documents altered – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 98, 100-105, 107-109, 111, 140
Migration Regulations 1994, Schedule 2 cl 476.212; r 2.41

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 April 1995. He was granted the Skilled Recognised Graduate Class VF visa on 8 November 2017. The visa was to be in effect until 29 June 2019. On 3 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 his response to the NOICC and his visa was cancelled on 24 August 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 February 2019 to give evidence and present arguments. 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 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 19 September 2017.

   b.In his application form, in response to a question about his post-secondary qualifications, the applicant stated that he completed a Bachelor of Electronics and Instrumentation 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 for all applicants’ confirming that he provided complete and correct information in every detail on the form and any attachments.

   d.In support of his visa application the applicant provided

   i.A Provisional Certificate from Anna University dated 22 June 2017 indicating that the applicant qualified or the award of Bachelor of Engineering in Electronics and Instrumentation Engineering through Kongu Engineering College, Erode, which is affiliated to Anna University.

   ii.Academic transcripts issued by Kongu Engineering College dated between April 2014 and May 2017.

   e.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 8 November 2017.

   f.The Department became aware of widespread visa fraud involving applicants claiming to be engineering graduates from Anna University and its affiliated universities providing bogus Statements of Grades to fulfil the requirements for the grant of the subclass 476 visas. The Department’s investigation found that many transcripts have been amended to tailor transcripts to individual visa applicants (name and date of birth). The academic transcripts were found to reflect identical subjects studied, in an identical order, with identical course outcomes (including credits, grade points and letter grades).

10. In his written response to the NOICC and his submission to the Tribunal of 26 November 2019 the applicant stated that he did attend Anna University and was not aware whether anybody had interfered with his migration application or why. The applicant states he was unaware that his documents had been altered. In his submission to the Tribunal dated 26 November 2018 the applicant provided a copy of the award for a Bachelor of Engineering in Electrical and Electronics Engineering issued by Anna University in May 2017 and an academic transcript for the above degree, issued in June 2016. The applicant conceded in oral evidence to the Tribunal that he did not obtain the Bachelor of Electronics and Instrumentation Engineering from Kongu Engineering College but holds a degree in Electronics Engineering from a different institution.

11. The information provided by the applicant indicates that he completed a Bachelor of Engineering in Electrical and Electronics Engineering at Pandian Saraswathi Yadav Engineering College and not a Bachelor of Electronics and Instrumentation Engineering at Kongu Engineering College. Having regard to that information, the Tribunal has formed the view that the applicant did not attend Kongu Engineering College at Erode between 1 August 2013 and 31 May 2017. The similarities between the applicant’s academic transcript and the others that have been presented to Immigration cannot be explained by simple coincidence. Rather. The information suggests that the educational documents have been altered and did not belong to the applicant.

12. The Tribunal reasonably suspects that the academic transcripts for the Bachelor of Engineering in Electronics and Instrumentation Engineering from Kongu Engineering College for the period from April 2014 to May 2017 were bogus documents 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 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.

13. The Tribunal further finds that on the application forms, in response to questions about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Engineering in Electronics and Instrumentation Engineering from Kongu Engineering College. The Tribunal finds that the applicant completed his application form in a way that incorrect answer was given. The Tribunal further finds that applicant declared in his 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 he gave genuine documents to the agent and that he was unaware of what information was submitted on his behalf. However, the Tribunal is of the view that by instructing the agent to prepare and lodge the application for him, and paying the fees for the service, the applicant created an agency arrangement between himself and the agent preparing his 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 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 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 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.

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. Briefly, they are:

    The correct information

20. The correct information is that the applicant did not attend Kongu Engineering College and did not obtain the Bachelor of Electronics and Instrumentation engineering, which is the degree that is identified in his application. He has completed a different qualification and not the one he referred to in his visa application.

    The content of the genuine document (if any)

21. The genuine document would not indicate that the applicant obtained a Bachelor of Engineering in Electronics and Instrumentation Engineering from 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

22. Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. The applicant told the Tribunal that he did not think his college was affiliated with Anna University. 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.

    The circumstances in which the non-compliance occurred

23. The applicant provided to the delegate evidence of having completed a Bachelor of Electrical and Electronics Engineering from Pandian Saraswathi Yadav Engineering College. The applicant stated that he did complete the degree from Anna University and he was unaware why other information was related to him. The applicant states that he is unsure why or whether anybody alternred his results. The applicant repeated these claims in his evidence to the Tribunal. The primary decision record indicates that the applicant did not use an agent when filing his visa application. In oral evidence, the applicant states that he submitted the genuine documents to the agent and he did not know what the agent submitted or why.

24. The applicant told the Tribunal that he did not believe his college was affiliated with Anna University, which appears to contradict his evidence to the delegate. The applicant told the Tribunal that he did not know about the visa requirements but the Tribunal is mindful that information about the visa was readily available on the Department’s website. The applicant claims he did not check any information or the documents. The Tribunal does not accept that submission. The Tribunal does not accept that the applicant was entirely unaware of the key requirements for visa grant, including the need to hold a degree from a particular university. If the applicant believed his college was not affiliated with Anna University, which is his evidence to the Tribunal, the Tribunal is of the view that the applicant was aware of that. In the Tribunal’s view, the applicant was either aware of the fraud or was indifferent about his agent’s actions.

    The present circumstances of the visa holder

25. The applicant told the Tribunal that after he entered Australia, it took him three months to find a job. He worked for a few months but he has not worked since his visa was cancelled. The applicant states that if his visa is reinstated, he would leave Australia before its expiry in June 2019.

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

26. 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

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

    The time that has elapsed since the non-compliance

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

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

29. There are no known breaches of the law.

    Any contribution made by the holder to the community.

30. The applicant has not referred to any contribution in his oral evidence to the Tribunal. In his submission of 26 November 2018 the applicant states that he has been working as a volunteer in social welfare to help elderly people. The applicant presented no evidence of his engagement.

31. 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

32. 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 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

33. 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

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

35. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be engaged as a result of his visa being cancelled.

36. The Tribunal finds that Australia’s international obligations would not be breached as a result of the visa cancellation.

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

37. In his submission to the Tribunal of 26 November 2019 the applicant states that he came to Australia hoping for a better future and manipulation on his file caused the cancellation and affected his education. The applicant states that the cancelation would cause hardship to him and the family and his education would be jeopardised. The applicant does not specify what education would be jeopardised, given that he has not made any claims of wishing to pursue further education and no evidence of having made any arrangements to do so.

38. The applicant has not raised any other matters in his oral evidence. He informed the Tribunal that he is willing to return to India and if his visa was not cancelled, would have returned to India before its expiry in June 2019.

39. 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 and that there are grounds for cancelling his visa. The cancellation would not be in breach of Australia’s international obligations. The applicant expressed his willingness to return to India. The Tribunal acknowledges the applicant’s evidence  that his education and his future would be jeopardised by the Tribunal does not accept it. There are no other persons affected by the cancellation. There are no other instances of non-compliance or breaches of the law.

40. The Tribunal acknowledges the applicant’s evidence that it was the agent who provided bogus documents and incorrect information but the Tribunal is not satisfied that the applicant had taken adequate steps to ensure that information and documents that were submitted on his behalf were correct and genuine. The applicant’s evidence to the Tribunal is that he has done nothing to check the paperwork before his application was submitted. The Tribunal places weight on the fact that the decision to grant the visa was based on incorrect answers and bogus documents. In the Tribunal’s view, that outweighs other considerations.

1. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Kira Raif
   Senior Member